Bousley v. United States may require appellate attorneys to raise meritless claims in order to preserve them for habeas review in the event of a change in the law. Bousley is a habeas corpus case involving the “procedural default” doctrine. The doctrine states that a prisoner may only raise issues that have been adequately preserved, and if not preserved, they have defaulted on their claims. Bousley looked with critical hindsight at the decisions made by appellate counsel and punished the defendant for their lawyer’s failure to preserve an issue rejected by eleven courts of appeals—including the court before which the appeal was brought. In refusing to excuse this default, the United States Supreme Court effectively warns that counsel must raise even those claims that current law forecloses, so as to preserve any issue in case the law changes in the future. Given the current legal landscape, lawyers will have to abandon the simple rule of thumb suggested by Reed v. Ross, which allowed lawyers to select the best issues on the basis of existing law. No longer can an attorney refuse to raise an issue simply because the settled law is against them; they will have to consider how likely it is that the law will remain settled in the future. The appellate lawyer will not only have to identify these future issues, but also weigh the benefits of raising the issues against the risk that including them will clog their brief, thereby reducing the chances of winning other issues on appeal. These may be the kind of choices that appellate lawyers are paid to make, but the rule nevertheless places them at a disadvantage.
St. Mary's University School of Law
Henry J. Bemporad & Sarah P. Kelly,
Novel Issues, Futile Issues, and Appelate Advocacy: The Troubling Lessons of Bousley v. United States.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol35/iss1/2
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