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Today, Longview, Texas, criminal defense lawyer Eric M. Albritton will argue for the first time before the U.S. Supreme Court in a case that could expand the “actual innocence” exception to the federal procedural default rule to non-capital cases. The exception now applies to capital cases. The rule at issue was established in Wainwright v. Sykes, a 1977 Supreme Court opinion, and Coleman v. Thompson, a 1991 Supreme Court opinion. But Doug Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division v. Michael Wayne Haley is before the Supreme Court largely because Albritton’s client, Michael Wayne Haley, successfully represented himself in earlier federal habeas corpus appeals. Albritton, who represents Haley pro bono, says he became involved after Haley already had won an appeal to the 5th U.S. Circuit Court of Appeals, leading to his release from prison in 2003 after serving six years of a 16-year, six-month sentence. The state of Texas appealed the 5th Circuit decision to the Supreme Court. The state asks the Supreme Court to reverse the 5th Circuit’s decision in Haley v. Cockrell (2002) — a pro se appeal filed by Haley — which expands the actual-innocence exception to non-death penalty cases when habitual felony offender sentencing is involved. Haley, who received an enhanced sentence under habitual felony offender provisions, is asking the Supreme Court to affirm the 5th Circuit decision. R. Ted Cruz, solicitor general of Texas, says the case raises an important issue of criminal procedure — the continued vitality of the procedural default rule. He says the procedural default rule as currently applied ensures that defendants convicted in state court raise objections at trial and on direct appeal, and prevents them from challenging convictions years later in federal court. Both sides acknowledge in briefs filed with the Supreme Court that the lawyer who represented Haley at trial failed to raise the sentencing issue on direct appeal. Haley appealed the enhanced sentence he received in October 1997 after a jury convicted him of theft for stealing a calculator. He alleged in appeals that he should have received no more than the two-year maximum on a state felony because the jury that sentenced him improperly applied the habitual felony offender enhancement to his sentence. In responding to the state’s appeal, Albritton wants the Supreme Court to apply Sawyer v. Whitley, a 1992 Supreme Court opinion, to non-death penalty cases such as Haley’s. He says Sawyer holds that if a habeas petitioner can establish that he received a punishment for which he was statutorily ineligible, then a federal court can hear his appeal. “It’s not an extension as much as an application of the Sawyer holding. The court has never specifically said that exception applies to noncapital sentences, but it never said it doesn’t,” Albritton says. The “wrinkle” in Dretke v. Haley, Cruz argues, is the “actual innocence” exception to the procedural default rule the U.S. Supreme Court has created for death penalty cases. Cruz says it’s a strange concept. “It doesn’t mean, “I didn’t do it. You got the wrong guy.’ It means … “You don’t meet the statutory aggravators for capital punishment,’” he explains. In 2002, the 5th Circuit held in Haley v. Cockrell -� a pro se appeal by Haley -� that the actual-innocence exception to the procedural bar doctrine applies to noncapital cases in cases of habitual-offender sentencing. In that decision, according to a brief filed by the state in Dretke v. Haley, the 5th Circuit acknowledged a split among the circuits, with the 7th, 8th and 10th circuits holding the actual-innocence exception does not apply to noncapital cases, and the 2nd Circuit extending it to all sentencing. But the state notes in the brief that the 4th Circuit decided, as did the 5th Circuit, that the exception applies in the context of habitual-offender provisions. The state appealed, and in June 2003 the Supreme Court agreed to hear Dretke v. Haley. Haley’s lawyers argue in their brief that Haley should not have received an enhanced sentence. They allege that while he did have two prior felony convictions, the sentences are not sequential because the first conviction was not final before he committed the second crime. Cruz says the state acknowledges an error was made in Haley’s sentencing. But he says the state is opposed to expanding the actual-innocence exception to the procedural default rule that applies to nondeath penalty cases because that would increase the number of federal appeals and undermine the finality of state-court convictions. “The value of the procedural default rule is it ensures that defendants and lawyers raise their objections before the state courts to give them a chance to address them. The impact of that rule is really far broader than Mr. Haley’s case … . It would allow other defendants to challenge their sentences in federal court without ever having raised it in state court,” he says. Albritton says the state is taking an “extreme position of form over substance.” “They are saying, “We agree this guy got more than eight times he was allowed to get under Texas law, but so what because he didn’t jump through the hoops properly.’ It’s an outrageous position for the state to take,” Albritton says. Partner Jeffrey Bleich and associate Anne Voigts, both of Munger, Tolles & Olson in San Francisco, also represent Haley before the Supreme Court. Bleich says they also represent Haley pro bono. Haley was released from prison in 2003, after serving six years of his sentence, when the 5th Circuit affirmed a district judge’s ruling granting Haley habeas relief. Albritton and Cruz agree it is unusual for inmates such as Haley who represent themselves to win appeals. Albritton notes that Haley, now working as a tree trimmer in Tyler, Texas, did not finish ninth grade.

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