Recent Florida Caselaw

U.S. v. Register,(C.A.11 (Fla.))
Criminal Justice – Defendant’s 17 tax offenses were of the same general type and closely related, warranting grouping at sentencing.
The defendant’s 13 convictions for failing to pay over taxes withheld from the wages of his company’s employees and four convictions for falsification of individual federal income tax returns were of the same general type and closely related, warranting grouping under the Sentencing Guidelines. All the crimes were tax offenses governed by the Internal Revenue Code, and the base offense level for each crime was determined by looking up the amount of tax loss in the same tax table. The offenses were similar, since the filing false returns counts were related to the defendant’s lying about whether income taxes had already been withheld from his wages. Additionally, the crimes did not need to arise from the same scheme for grouping.
U.S. v. Kaley ,(C.A.11 (Fla.))
Criminal Justice – Defendants could not challenge sufficiency of evidentiary foundation supporting indictment in pretrial, post-restraint hearing.
Defendants who had been charged with conspiracy to transport stolen property, transportation of stolen property, obstruction of justice and money laundering could not challenge sufficiency of evidentiary foundation supporting grand jury’s determination that there was probable cause to support charges of transporting stolen goods in interstate commerce in pretrial, post-restraint hearing to determine the propriety of a post-indictment pretrial restraining order. The fact-specific inquiry into whether the defendant’s employer had an ownership interest in the allegedly converted medical goods would amount to a mini-trial on the merits and require the district court to review grand jury’s probable cause determination, undermining the grand jury system and contravening the Supreme Court’s repeated observation that a facially valid indictment was enough to call for a trial of charge on the merits.
U.S. v. Acuna-Reyna ,(C.A.11 (Ga.))
Criminal Justice – Sentencing court’s assessment of one criminal history point for prior uncounseled misdemeanor DUI conviction was warranted.
The Court of Appeals for the Eleventh Circuit has held that a sentencing court’s assessment of one criminal history point for the defendant’s prior uncounseled misdemeanor conviction for driving under the influence (DUI) was warranted, regardless of whether the probation sentence for the DUI offense was imposed in violation of the Sixth Amendment. The Court noted that a monetary fine was also imposed for DUI, which could be counted for the purpose of calculating criminal history.
Hutchinson v. Florida ,(C.A.11 (Fla.))
Criminal Justice – One-year limitations period was not equitably tolled by counsel’s miscalculation of filing deadline for state petition.
The one-year limitations period for filing a federal habeas petition was not equitably tolled by counsel’s miscalculation of the filing deadline for a petitioner’s state collateral petition. Counsel’s miscalculation was merely a garden variety case of excusable neglect, and the petitioner waited nearly four years before filing his pro se federal petition.
Morris v. Secretary Dept. of Corrections,(C.A.11 (Fla.))
Criminal Justice – Petitioner’s exclusion from bench conference during penalty phase of trial did not merit habeas relief.
A District Court’s decision to deny a habeas petition filed by a Florida prisoner who had been convicted of, inter alia, first-degree murder, and sentenced to death, was upheld on appeal because the state Supreme Court’s determination that the petitioner had failed to establish prejudice resulting from his alleged exclusion from a bench conference during the penalty phase of his trial was not an unreasonable application of clearly established federal law. Since the petitioner had not even attempted to articulate what might have been discussed at the conference, there was no reasonable probability that, but for his exclusion from it, the result of the proceedings would have been different.
Cook v. Warden, Georgia Diagnostic Prison ,(C.A.11 (Ga.))
Criminal Justice – Defendant’s confession to his father, who was FBI agent, was admissible despite lack of Miranda warning.
No Miranda violation occurred when a defendant’s confession to his father was admitted in a capital murder trial despite a lack of warnings to defendant. Although the father was an FBI agent, he was chiefly acting as the defendant’s father, not as a law enforcement agent. The father never offered to act as a state agent in speaking with his son, and the father testified that he was not thinking of his job as an FBI agent at the pertinent time. Furthermore, at their meeting there was crying, shaking, and hugging. Such acts are typically absent in custodial interrogations.
Holland v. Tucker ,(S.D.Fla.)
Criminal Justice – State court unreasonably determined that petitioner’s right to self-representation was not denied at capital murder trial.
A state supreme court unreasonably determined that a petitioner’s right to self-representation was not denied at his capital murder trial, so as to warrant federal habeas relief. The trial judge had denied the petitioner’s repeated requests to represent himself based on his lack of formal legal education and training and lack of knowledge of the applicable rules of evidence and procedure, rather than on the correct standard of whether he was competent to waive his Sixth Amendment right to counsel and whether that waiver was knowing and voluntary.
Roberts v. Commissioner, Alabama Dept. of Corrections ,(C.A.11 (Ala.))
Criminal Justice – Defendant was not deprived of effective assistance by counsel entering insanity plea and not presenting evidence to support it.
The Court of Appeals for the Eleventh Circuit has held that a defendant was not deprived of effective assistance in a capital murder trial by trial counsel entering an alternate plea of not guilty by mental disease in front of the jury venire and then failing to present any evidence to support that plea. The defendant was not prejudiced by the counsel’s failure to present evidence to support insanity plea, as there was no evidence that the prospective jurors heard the entry of the plea, since the arraignment took place at the bench before jury selection began. Also, even if the jurors did hear the insanity plea, the plea was withdrawn before the case was sent to the jury and the jury was never instructed on the insanity defense. Finally, here was no showing that the defendant would have been found not guilty by reason of insanity if counsel had adequately investigated and presented evidence in support of the insanity defense.
Willoughby v. State ,(Fla.App. 3 Dist.)
Criminal Justice – State failed to prove defendant was not authorized to access network as required for conviction of unlawfully accessing computer.
The state failed to prove that the defendant was not authorized to access her employer’s computer network. This was required for a conviction of unlawfully accessing a computer. The defendant’s supervisor authorized her to access her employer’s computer network to perform her job. The defendant’s personal laptop was connected to her employer’s computer network by her employer’s network administrator.
U.S. v. Tobin ,(C.A.11 (Fla.))
Criminal Justice – Court’s involvement in plea discussions warranted resentencing of defendant before a different district judge.
A district court’s involvement in plea discussions violated the “categorical mandate” of Rule 11. The court explicitly indicated that it would like the defendants to begin and engage in plea discussions, and addressed both defense counsel and the defendants themselves in individual colloquies on the subject. The violation warranted the resentencing of a defendant before a different district judge.
U.S. v. Rosales-Bruno ,(C.A.11 (Fla.))
Criminal Justice – Defendant’s conviction for false imprisonment, in violation of Florida law, did not qualify as “crime of violence.”
A defendant’s conviction for false imprisonment, in violation of Florida law, did not qualify as a “crime of violence,” under the sentencing guideline provision imposing a 16-level sentencing increase for a defendant who was deported for a crime of violence. The offense of false imprisonment in Florida was not categorically a crime of violence, as it did not necessarily involve the threat or use of physical force. Also, the judgment and information were insufficient to show that the defendant’s specific conduct involved the use of physical force.
State v. McMahon ,(Fla.)
Criminal Justice – Trial court’s initiation of plea dialogue with defendant without invitation of a party is not per se reversible error.
The Supreme Court of Florida has held that a trial court’s initiation of a plea dialogue with a defendant without invitation of a party is not per se reversible error. In so holding, the Court resolved a conflict among the District Courts of Appeal on this issue. The Court went on to hold that the 18- month sentence imposed on the defendant, who had pled guilty to possession of cocaine, possession of drug paraphernalia, and grand theft, was not illegal based on the trial court’s failure to hold a habitual felony offender (HFO) hearing before sentencing the defendant, as required by statute. Thus, the state was not authorized to appeal the sentence pursuant to the statute permitting the state to appeal an illegal sentence.
U.S. v. Chitwood ,(C.A.11 (Ga.))
Criminal Justice – Georgia false imprisonment is a “crime of violence” for sentencing purposes.
A defendant’s previous conviction for violating Georgia’s false imprisonment statute qualified as a “crime of violence” for purposes of career offender treatment under the Sentencing Guidelines. The risk of serious physical injury posed by violation of Georgia’s false imprisonment statute was similar to that posed by the closest analog among the enumerated offenses, burglary of a dwelling, namely, the risk of a violent confrontation between the offender and the person being falsely imprisoned, including the risk that the offender, aware that such confrontation is possible, will have to inflict serious physical injury to detain the victim. In so ruling, the Eleventh Circuit joined the general consensus of the circuits recognizing that, after the Supreme Court’s decision in Sykes v. U.S., 131 S.Ct. 2267, the “purposeful, violent, and aggressive” analysis set forth in Begay v. U.S., 553 U.S. 137, does not apply to offenses that are not strict liability, negligence, or recklessness crimes.
U.S. v. Lebowitz ,(C.A.11 (Ga.))
Criminal Justice – Production of child pornography statute as applied to defendant was not void for vagueness under Due Process Clause.
The production of child pornography statute, prohibiting any person from employing, using, persuading, inducing, enticing, or coercing any minor under 18 years of age to engage in any sexually explicit conduct for the purpose of producing any visual depiction of such conduct if such visual depiction was actually transmitted using any means or facility of interstate commerce, was not unconstitutionally vague as applied to the defendant. The statute comported with the Due Process Clause by providing the defendant fair warning of prohibited conduct. A person of common intellect who read the statute would know that a person violated the statute by persuading a 16-year-old to engage in sexual conduct for the purpose of recording that conduct and later transmitted that recording over the Internet.
Hayes v. State ,(Fla.)
Criminal Justice – Trial court improperly considered defense counsel’s peremptory challenge as one for cause.
In deciding the objection of the state of Florida to the defendant’s exercise of a peremptory challenge regarding a female prospective juror, the trial court improperly considered defense counsel’s challenge as one for cause, thereby imposing an impermissible higher burden upon the defense counsel. The trial court focused merely on whether the prospective juror’s relationship with two law enforcement officers created any problem for the prospective juror, that is, whether she could be fair.
Reese v. Secretary, Florida Dept. of Corrections ,(C.A.11 (Fla.))
Criminal Justice – Habeas relief was precluded on claim of prosecutorial misconduct that did not violate due process during capital sentencing.
The Florida Supreme Court’s rejection of a defendant’s claim of prosecutorial misconduct during capital sentencing was not an unreasonable application of clearly established federal law. Thus, federal habeas relief was precluded. The United States Supreme Court had never held that a prosecutor’s closing arguments were so unfair as to violate a defendant’s right to due process. The prosecutor’s comments stated that the murder victim’s experience was “every woman’s worst nightmare,” suggested that the defendant would be released on parole absent a sentence of death, compared the defendant with a “cute little puppy” who grew up to become a “vicious dog,” and urged the jury to show the defendant “the same sympathy, the same pity” that he showed to the victim and “that was none.”
Rehberg v. Paulk ,(U.S.)
Civil Rights – Grand jury witness has absolute immunity from any 1983 claim based on his or her testimony — Supreme Court Decision
A witness in a grand jury proceeding is entitled to the same absolute immunity from suit under 1983 as a witness who testifies at trial, and so a grand jury witness has absolute immunity from any 1983 claim based on his or her testimony, the United States Supreme Court has ruled in a unanimous decision, 2012 WL 1069091, affirming an Eleventh Circuit decision. The petitioner, a certified public accountant who sent anonymous faxes to, among others, the management of a hospital, criticizing the hospital’s management and activities, was the subject of a criminal investigation launched by the local district attorney’s chief investigator. Three indictments were eventually returned against the petitioner, charging him with making harassing phone calls and assaulting a hospital physician. Following dismissal of all of the indictments, the petitioner brought an action against the investigator under 42 U.S.C.A. 1983, alleging that he conspired to present, and did present, false testimony to the grand jury. The district court denied the investigator’s motion to dismiss, but the Court of Appeals reversed, holding that the investigator was absolutely immune from a 1983 claim based on his grand jury testimony. Certiorari was granted to resolve a Circuit conflict regarding the immunity of a “complaining witness” in a grand jury proceeding. <p>Despite the broad terms of 1983, which provides that every person who acts under color of state law to deprive another of a constitutional right is answerable to that person in a suit for damages, the Court “has long recognized that the statute was not meant to effect a radical departure from ordinary tort law and the common-law immunities applicable in tort suits,” Justice Alito wrote. Thus, in determining the scope of the immunities available in a 1983 action, the Court has looked to the common law for guidance, taking a “functional approach” by identifying those governmental functions that were historically viewed as so important and vulnerable to interference through litigation that some form of absolute immunity from civil liability was needed to ensure that they are performed with independence and without fear of consequence. Among the functions that the Court has identified as absolutely immune from liability for damages under 1983 are the giving of testimony by witnesses at trial. Although guided by the common law, the Court has not mechanically duplicated the precise scope of the absolute immunity that the common law provided to protect these functions, Justice Alito noted, just as the scope of the new federal claim created by 1983 differs in some respects from the common law. <p>While, at common law, trial witnesses enjoyed a limited form of absolute immunity for statements made in the course of a judicial proceeding, in that they had complete immunity against libel and slander claims, the immunity of a trial witness sued under 1983 is broader and extends to any claim based on the witness’ testimony. “The factors that justify absolute immunity for trial witnesses apply with equal force to grand jury witnesses,” Justice Alito reasoned. In both contexts, the tribunal could be deprived of critical evidence if a witness feared retaliatory litigation, and in neither context was the deterrent of potential civil liability needed to prevent perjurious testimony. Furthermore, as the Court explained in Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), there is no reason to distinguish law enforcement witnesses from lay witnesses. <p>The petitioner’s main argument, that Supreme Court precedent already established that a “complaining witness” is not shielded by absolute immunity, was rejected by the Court as based on a fundamental misunderstanding of the distinctive function played by a “complaining witness” during the period when the predecessor to 1983 was enacted. <p>Consequently, the Court concluded, “a grand jury witness is entitled to the same immunity as a trial witness,” and therefore “has absolute immunity from any 1983 claim based on the witness’ testimony.” (Affirming Rehberg v. Paulk, 611 F.3d 828 (C.A.11-Ga. 2010).)
U.S. v. Pavlenko ,(S.D.Fla.)
Criminal Justice – The report of the defendant’s polygraph examination was inadmissible under the rule of evidence governing expert testimony.
In a criminal prosecution, the report of the defendant’s polygraph examination, offered by the defendant to corroborate his contemplated testimony that he did not have the requisite guilty knowledge or criminal intent to join a conspiracy with anyone to perpetrate frauds, did not satisfy the Daubert factors. Therefore, it was inadmissible under the rule of evidence governing expert testimony. Polygraph theory and technique could not be adequately tested, as there was no reliable measure of a polygraph’s ability to detect deception accurately. There was also no basis to establish a reliable error rate for polygraph results. The defendant did not show that the test was carried out fully consistently with the applicable professional standards. Finally, there was no consensus within the scientific and legal communities over the efficacy of polygraph evidence.
Florida v. Harris ,(U.S.Fla.)
Criminal Justice – Reliability of drug-detection dog’s alert as providing probable cause to conduct warrantless search — Certiorari Granted
The United States Supreme Court has granted certiorari in a case in which the Florida Supreme Court held that to demonstrate that an officer has a reasonable basis for believing that an alert by a drug-detection dog is sufficiently reliable to provide probable cause to conduct a warrantless search, the government must present all records and evidence that are necessary to allow the trial court to evaluate the reliability of the dog. The fact that a drug-detection dog has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate reliability. Rather, the government must present the training and certification records as well as an explanation of the meaning of these records, the dog’s field performance records, including any unverified alerts, evidence concerning the experience and training of the officer handling the dog, and any other objective evidence known to the officer about the dog’s reliability in detecting the presence of illegal substances. The Florida Supreme Court observed that the training and certification of drug-detection dogs are not standardized, and thus the government must explain the training and certification of a particular dog so that a court may evaluate how well the dog is trained and whether the dog falsely alerts. Criticizing what one commentator had called the “mythic infallibility of the dog’s nose,” the court stated, “Any presumption of reliability based only on the fact that the dog has been trained and certified does not take into account the potential for false alerts, the potential for handler error, and the possibility of alerts to residual odors.”A drug-detection dog, noted the Florida Supreme Court, cannot be cross- examined like a police officer whose observations may provide the basis for probable cause. Instead, a drug-detection dog’s alert is analogous to an informant whose information forms the basis for probable cause. In each case the trial court must be able evaluate the reliability of the information based on the totality of the circumstances. Of particular importance is whether a dog, like an informant, has a record of giving accurate information in the past. If a drug-detection dog’s ability to alert to the presence of illegal substances is questionable, then the danger exists that individuals will be subjected to searches of their vehicles or persons without probable cause, the Florida Supreme Court stated. One justice of the Florida Supreme Court dissented, writing that the majority had imposed “elaborate and inflexible evidentiary requirements” on the government that are inconsistent with the proper understanding of probable cause as a “practical, non-technical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” (Case below: Harris v. State, 71 So.3d 756 (Fla. 2011) , as revised on den. of reh’g (2011).)
U.S. v. Romo-Villalobos ,(C.A.11 (Fla.))
Criminal Justice – Defendant’s prior conviction for resisting an officer was for a crime of violence under sentencing guidelines.
A defendant’s prior Florida conviction for resisting an officer with violence was for a crime of violence under the sentencing guideline imposing a 16-level enhancement for having been previously deported after a conviction for a felony crime of violence. The use of more than de minimis physical force or violence was a necessary element of the Florida offense, and the offense required more than recklessness.
State v. Chubbuck ,(Fla.App. 4 Dist.)
Criminal Justice – Defendant was not required to prove needed treatment was not available in prison system to obtain downward durational departure.
A defendant was not required to prove that the treatment he needed was not available in the prison system in order to obtain a downward durational departure. The departure might have been available to him under a statute that allowed the sentencing court to depart from the lowest permissible sentence if the defendant required specialized treatment for a mental disorder that was unrelated to substance abuse or addiction or for a physical disability, and the defendant was amenable to treatment. The statute did not require a finding of a lack of available treatment in prison. Nothing in the legislative history even hinted that services had to be unavailable in prison to treat the condition in order to justify a downward departure on this ground.
Avila v. State ,(Fla.App. 2 Dist.)
Criminal Justice – Double jeopardy did not prevent State from retrying defendant on charged offense of sexual battery with deadly weapon after jury deadlocked on some unidentified lesser-included offense.
Under Florida law, double jeopardy did not prevent the State from retrying a defendant on the charged offense of sexual battery with a deadly weapon after the jury deadlocked on some unidentified lesser-included offense during its deliberations at the defendant’s first trial. The deadlocked jury did not decide to “acquit” the defendant of sexual battery with a deadly weapon, and instead, it did not reach a unanimous decision as to the disposition of that charge.
Rozzelle v. Secretary, Florida Dept. of Corrections ,(C.A.11 (Fla.))
Criminal Justice – Actual innocence gateway to habeas review did not extend to claim of lesser degree of homicide.
The actual innocence “gateway” to a state prisoner’s otherwise procedurally defaulted or time-barred petition for federal habeas relief does not extend to prisoners who did the killing and whose alleged actual innocence of a non- capital homicide conviction is premised on being guilty of only a lesser degree of homicide. Moreover, even assuming that the actual innocence gateway was available in these circumstance, a state prisoner convicted of second-degree murder did not show actual innocence, as the basis for an exception to the Antiterrorism and Effective Death Penalty Act’s (AEDPA) one-year limitations period for the habeas petition. The prisoner’s putatively new evidence of lack of depraved mind and that he acted in the heat of passion was either largely cumulative of what the jury heard or unfavorable to the prisoner.
Hernandez v. State ,(Fla.App. 4 Dist.)
Criminal Justice – Testimony of law enforcement supported finding that defendant consented to warrantless search.
Testimony of law enforcement supported a trial court’s finding that a defendant consented to a warrantless search of his property for drug evidence, despite what the appellate court described as the “inherent incredibility of the factual scenario” of the case. The testimony indicated that the defendant, after twice telling officers to get a warrant, invited officers on his property, put away his dog, and kicked down his own door to allow officers to have a look at his indoor marijuana grow room, which provided probable cause for a search warrant. The testimony did not contain any evidence of coercive conduct or the use of overbearing tactics by law enforcement. The trial court had only the testimony of law enforcement to consider. Under the circumstances, the appellate court concluded, it could not be said that the trial court erred by denying the defendant’s motion to suppress.
In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011 ,(C.A.11 (Fla.))
Criminal Justice – Individual’s act of decrypting and producing contents of seized computer hard drives was Fifth Amendment “testimony.”
A subpoenaed individual’s act of decrypting and producing for a grand jury the contents of hard drives seized during the course of a child pornography investigation was sufficiently testimonial to trigger Fifth Amendment protection. The act was not merely physical, but would require the use of the individual’s mind. In addition, this purported testimony was not a “foregone conclusion,” as nothing in the record revealed that the government knew whether any files actually existed or the location of those files on the hard drives, or that the government knew with reasonable particularity that the individual was even capable of accessing the encrypted portions of the drives. Furthermore, the district court erred in limiting the individual’s immunity to the government’s use of his act of decryption and production, while allowing the government derivative use of the evidence such act disclosed. Because the individual’s act of production would have testimonial aspects to it, an order to compel him to produce the unencrypted contents of the drives would require immunity coextensive with the Fifth Amendment, which required both use and derivative-use immunity.
Arrington v. State ,(Fla.App. 2 Dist.)
Criminal Justice – In felony murder cases where juvenile defendant did not actually commit the murder, mandated life-without-parole sentence may be unconstitutional.
The statutorily mandated life-without-parole sentence for juvenile defendants who commit felony murder may constitute a grossly disproportionate sentence in some cases where the juvenile defendant did not actually commit the murder. Thus, trial courts must have discretion to impose a lesser sentence when life without possibility of parole would be disproportionate to the circumstances of the crime.
Edwards v. Shanley ,(C.A.11 (Fla.))
Civil Rights – Officer who let police dog attack fleeing automobile driver for five to seven minutes was not entitled to qualified immunity.
Although, after an automobile driver had fled the scene following a traffic stop, the arresting officer’s use of a police dog to help track and initially subdue the driver was reasonable, the officer thereafter used unreasonable force when he permitted his dog to attack the driver for five to seven minutes, while the driver was lying face down on the ground with his hands exposed and pleading to surrender, and while the officer was in a position to immediately effect the driver’s arrest. Though, given the fact that the driver, an unidentified individual, had fled at night into the woods, the officer had some reason to approach the driver with concerns for his own safety, in subjecting the driver to the dog attack the officer increased the force applied at the same time the threat presented by the driver decreased. This further infliction of pain was gratuitous and sadistic. Because the Eleventh Circuit also found that clearly established law did not permit this level of force, it followed that the officer was not entitled to qualified immunity from the driver’s 1983 claims.
U.S. v. Vadnais ,(C.A.11 (Fla.))
Criminal Justice – Five-level enhancement for distribution of child pornography for expectation of receipt of thing of value did not apply to defendant.
A defendant’s use of peer-to-peer file-sharing software to obtain child pornography files from other users in a manner that permitted other users to obtain child pornography files from his shared folder did not support a five- level enhancement for distribution of child pornography for the expectation of the receipt of a thing of value. The five-level enhancement imposed an additional requirement that the distribution occur for a specified purpose, and there was no showing that defendant expected to receive any other “thing of value.”
Maples v. Thomas ,(U.S.)
Criminal Justice – Postconviction counsel’s abandonment was cause for state death row inmate’s procedural default of federal habeas claim — Supreme Court Decision
Reversing the Eleventh Circuit, the United States Supreme Court has held, 2012 WL 125438, that postconviction counsel’s abandonment of their representation of a state death row inmate without informing either the inmate or the postconviction court was cause to excuse the inmate’s procedural default of his federal habeas claim, which had resulted from his failure to file an appeal within 42 days of the denial of his state postconviction petition, as required by Alabama’s rules of appellate procedure. The state postconviction and federal habeas petitions alleged the ineffective assistance of counsel at the guilt and penalty phases of the inmate’s capital murder trial. The inmate had been represented in the state postconviction proceeding by two out-of-state pro bono attorneys and an Alabama attorney. The order dismissing the state petition was mailed to the out-of-state attorneys’ law firm, but they had left their employment with that firm, and the firm’s mail room returned the unopened envelope to the state trial court clerk. The Alabama attorney also received a copy of the order, but he did not act on it. A divided panel of the Eleventh Circuit concluded that the failure of the inmate’s postconviction counsel to timely appeal from the denial of state postconviction relief did not constitute cause, as an element of the cause and prejudice test for excusing a federal habeas petitioner’s default under a state’s procedural rule, because the inmate had no constitutional right to effective assistance of postconviction counsel. Certiorari was granted, but limited to the question of whether the inmate had shown the requisite cause. <p>Writing for the Court, Justice Ginsburg observed that cause for failure to meet a state procedural rule exists where something external to the habeas petitioner, which cannot fairly be attributed to him, impeded his efforts to comply with the rule. A postconviction counsel’s negligence does not qualify as cause, because counsel is the prisoner’s agent, and a principal bears the risk of negligent conduct by his agent. “A markedly different situation is presented,” wrote Justice Ginsburg, “when an attorney abandons his client without notice, and thereby occasions the default.” In that situation, the attorney has severed the principal-agent relationship, and thus no longer acts, or fails to act, as the client’s representative, and thus the attorney’s acts or omissions cannot fairly be attributed to the client. Such a situation occurred here, Justice Ginsburg concluded, where the lawyers the inmate believed to be “vigilantly representing him had abandoned the case without leave of court, without informing the inmate they could no longer represent him, and without securing any recorded substitution of counsel.” Thus abandoned by counsel, the inmate was “left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself pro se.” The inmate, in fact, had no right to receive notice of the order denying his postconviction petition, and he did not receive notice within the 42-day appeal period. Justice Ginsburg rejected the contention that there was no severing of the agency relationship because other lawyers with the out-of-state attorneys’ law firm undertook efforts to remedy the default, including seeking mandamus relief to grant the inmate leave to file an out-of-time appeal. At the time of the default, Justice Ginsburg noted, these other lawyers at the firm had not been admitted to practice in Alabama, and they had not entered their appearances in the postconviction court, and thus they lacked the legal authority to act on the inmate’s behalf before the appeal period had expired. Furthermore, the inmate’s Alabama attorney, who served as local counsel for the sole purpose of allowing the out-of-state attorneys to appear pro hac vice, did not represent the inmate in any meaningful way. Justice Ginsburg left the question of whether the inmate had shown the requisite prejudice to excuse his procedural default for the courts below to resolve on remand. Justice Alito filed a concurring opinion. Justice Scalia filed a dissenting opinion, in which Justice Thomas joined. (Case below: Maples v. Allen, 586 F.3d 879 (C.A.11-Ala. 2009).)