Whether an attorney's complete abdication of agency duties during a client's waiver of state habeas review can constitute cause to excuse a procedural default and allow federal habeas review

No question identified. : To the Honorable Samuel Alito, Associate Justice of the Supreme Court of the United States and Circuit Justice to the United States Court of Appeals for the Fifth Circuit: Pursuant to 28 U.S.C. § 2101(c) and Supreme Court Rules 13.5, 22, and 30.2, applicant Richard Lee Tabler respectfully requests a thirty(30-) day extension of time, up to and including March 138, 2024, within which to file a petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fifth Circuit. Mr. Tabler has not previously sought an extension of time from this Court in this matter. In support of this request, Mr. Tabler submits the following: 1. The Court of Appeals for the Fifth Circuit denied Mr. Tabler's petition for rehearing on November 14, 2023. See Exhibit 1. Without an extension, the time to file a petition for a writ of certiorari in this Court will expire on February 12, 2024. See S. Ct. R. 13.1, 13.3, 30.1. This application is being timely filed, in compliance with Rule 13.5, more than 10 days before that date. A copy of the Fifth Circuit's opinion is attached. See Exhibit 2. This Court will have jurisdiction over Mr. Tabler's future petition for writ of certiorari pursuant to 28 U.S.C. § 1254(1). The district court had jurisdiction pursuant 28 U.S.C. § 2254. 2. In this case, state habeas counsel completely abdicated their role at a hearing to determine whether the court would allow their client to waive his right to state habeas review. Lead counsel announced that they would take no position, refused to participate in the hearing, and never disclosed a lengthy expert evaluation that would have allowed the judge to make an informed decision. The case presents a question this Court has not yet addressed: whether an attorney’s renunciation of agency duties to a client seeking to waive state collateral review can provide cause to excuse a procedural default and allow federal habeas review on the merits. The ruling below flatly conflicted with fundamental agency principles, and the circuits have reached diverging positions in similar cases. The question is important because death-sentenced persons frequently seek to waive further review. See Supreme Court Rule 10(a), (©). 3. Mr. Tabler stood trial in 2007 before a jury in Bell County, Texas, on two counts of capital murder for intentionally or knowingly causing the deaths of Haitham Zayed and Mohamed Amine Rahmouni on November 26, 2004. The jury found him guilty on March 21, 2007. It rendered verdicts on the special issues that compelled imposition of the death penalty on April 2, 2007, and the trial court formally imposed the death sentence the same day. 4. Mr. Tabler’s direct appeal and state habeas corpus cases proceeded simultaneously, as required by Texas law. See Tex. C.C.P. Art. 11.071(4)(A). During a brief hearing conducted on September 30, 2008, the state habeas court ruled that Mr. Tabler was competent to waive his state habeas rights and accepted his waiver. At the hearing, lead counsel announced that he and his co-counsel would not take a position “one way or the other” on whether the court should allow his client to waive his state habeas rights. Counsel had made the renunciation clear to Mr. Tabler beforehand in a letter, telling him that it was “not my job” to help him waive or argue against it, and “this will just be between you and Judge Trudo.” He said nothing of substance during the hearing and made no objection as the court repeatedly gave his client inaccurate advice about the deadline for any waiver to take effect. Counsel never told the court about a comprehensive neuropsychological report diagnosing Mr. Tabler as severely mentally ill or the fact that Mr. Tabler changed his mind frequently about wanting to waive his rights. The court directly elicited Mr. Tabler’s assurance that he was “competent enough.” At the end of the hearing, counsel asked the court to confirm that it had relieved him and his co-co