Kulbicki Still Awaiting Supreme Court Cert Decision

By Michael Wein

The Maryland case of Kulbicki v. State, involving the post-conviction relief appropriate for those convicted with help from the now thoroughly discredited FBI “comparative bullet lead analysis” (“CBLA”), was one of the “blockbuster” cases of last year, as noted by fellow Blog editor Brad McCullough in a post discussing how the case unexpectedly did not decide larger issues and by myself on a list of some of the “longest pending cases” in the 2013-2014 Term (Kulbicki being the longest). The 4-3 Court of Appeals decision and majority opinion by Judge Lynne Battaglia, instead of dealing with potentially more sweeping issues that could have also been addressed in the case, concentrated more narrowly on Kulbicki’s entitlement to a post-conviction remedy under a regular ineffective-assistance-of-counsel analysis, despite that potential error not being earlier presented in the certiorari petition. As Judge Robert McDonald’s dissent noted, the case “reverses Mr. Kulbicki’s conviction on the basis that his trial counsel failed to anticipate [that CBLA would one day be deemed inadmissible] and thereby provided ineffective assistance of counsel in their cross-examination of the prosecution’s CBLA forensic expert – a ground not briefed by either party in this appeal and not among the questions on which we granted the writ of certiorari in this case.”

While the opinion was therefore somewhat controversial, normally the Court of Appeals decision would be the end of it, as Kulbicki itself did not appear, at least on first glance, to raise any significant federal claims. Yet the Attorney General’s Office, under Brian Frosh, sought certiorari from the U.S. Supreme Court, requesting review of the Court of Appeals’ interpretation of the Supreme Court case Strickland v. Washington as it applies to a later-arising challenge to forensic methods used to convict a defendant. So far, per the online docket, the case has been relisted – that is, not disposed of in previous batches of certiorari grants and denials – three times by the Supreme Court.

The Court’s third conference since the petition’s filing was Thursday, and, assuming the case is not relisted again (which seems unlikely as there is only a few more days left in the Supreme Court’s term), then presumably Monday the fate of the petition will be resolved. The odds are now that the case has achieved the interest of at least one justice. Certiorari could be granted or denied outright, though, as known by anyone who reads John Elwood’s Relist Watch on SCOTUSBLOG, the Court’s actions thus far strongly suggest either (1) an opinion by one or more justices respecting denial of certiorari (dissenting and/or concurring in the denial), or (2) a summary opinion granting certiorari but without oral arguments.

Kulbicki is represented by Kannon Shanmugam, who is notable as a regular Supreme Court advocate and ably represented the Maryland Public Defender’s Office after the Court granted certiorari in Maryland v. King, 569 U.S. 12 (2013). As noted by the Maryland Daily Record, Mr. Shanmugam entered his appearance only to waive Mr. Kulbicki’s right to respond to the certiorari petition. Then the Supreme Court “called for response” (known as a “CFR”) to the State of Maryland’s petition.

Parenthetically, I should mention that, although there has been some criticism (including on the Blog) aimed at the Court of Appeals’ decision in Kulbicki for not deciding the larger legal issues presented in the original certiorari grant, the Court’s reluctance to “open the floodgates” to all post-conviction petitioners in Maryland is hardly a surprise, and is very analogous to what the Supreme Court did in Dretke v. Haley, 541 U.S. 384 (2004). In Dretke, the Supreme Court declined to resolve a circuit split arising, as noted by the dissenters in the case, from a Fifth Circuit decision that “exacerbated a growing divergence of opinion in the Courts of Appeals regarding the availability and scope of the actual innocence exception in the noncapital sentencing context.” Yet Justice Sandra Day O’Connor’s majority opinion saw the matter differently, determining that, in light of a significant post-certiorari concession by the petitioner, the State of Texas, that the incarcerated defendant was entitled to and would mostly likely obtain post-conviction relief for denial of the Sixth Amendment right to effective assistance of counsel, the better course was to not decide the circuit split – which, more than a decade later, still exists:

Petitioner here conceded at oral argument that respondent has a viable and “significant” ineffective assistance of counsel claim. Success on the merits would give respondent all of the relief that he seeks — i.e., resentencing. It would also provide cause to excuse the procedural default of his sufficiency of the evidence claim. Contrary to the dissent’s view, it is precisely because the various exceptions to the procedural default doctrine are judge-made rules that courts as their stewards must exercise restraint, adding to or expanding them only when necessary. … And because petitioner has assured us that it will not seek to reincarcerate respondent during the pendency of his ineffective assistance claim, the negative consequences for respondent of our judgment to vacate and remand in this case are minimal[.] … [A]s this case and the briefing illustrate, such claims are likely to present equally difficult questions regarding the scope of the actual innocence exception itself.

(Citations omitted.)

Thus, Dretke created a new judicial rule that, when an incarcerated defendant has legitimate ineffective-assistance-of-counsel claims, those should be examined first before examining “actual innocence.” Applying this newfangled procedural rule, the majority refrained from addressing the circuit split – which Justice Stevens’ dissent described as an “easy case” – and decided the more “fact specific” claims of the individual petitioner. So while Kulbicki was, given the original issues for which the Court of Appeals granted certiorari, decided in a surprising manner, it would hardly be the first time that courts in a post-conviction context have avoided larger concerns and resolved cases on far more narrow (though still important) grounds.