13-d-3 Procedural Default

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

13-D-3. Procedural Default

If you are a state prisoner and you present a habeas claim to the federal court that has not been presented to the state court, your claim may be in "procedural default,"²⁴² and the federal court will be barred from hearing your claim.²⁴³ If you are a federal prisoner and include a claim in your habeas petition that was not a part of your direct appeal to a federal court of appeals, your claim may be in procedural default. As a federal prisoner, you can avoid procedural default by raising every habeas claim in your direct appeal. In some circumstances, you may be required to have raised the claims at your trial (for example, by making appropriate objections) to be able to raise the claims in your direct appeal.²⁴⁴ State prisoners can avoid procedural default by raising every claim in state court. In many cases, state prisoners will be required to have raised claims at trial, through motions or objections, in order to raise the claims on direct review.²⁴⁵ State prisoners must be certain to raise all claims in all state collateral proceedings, too.²⁴⁶

(a) State Procedural Rules and Procedural Default

If you are a state prisoner, your claim can also be in procedural default if you raised your claim to a state court that refused to review the merits of the claim due to a state procedural rule. This often occurs when prisoners fail to pursue their claim in a timely manner.²⁴⁷ State prisoners are not allowed to bring habeas claims in federal court if those claims were not reviewed on the merits in state court because the petitioner did not follow a state procedural rule.²⁴⁸ But if a state procedural rule prevents you from bringing a claim in state court, and the state court ignores the rule and reviews the merits of your claim anyway, a federal court cannot later refuse to review your claim based on the state procedural rule.²⁴⁹

If you are in procedural default, you can try to use the "independent and adequate state grounds" doctrine to avoid procedural default.²⁵⁰ You can get out of procedural default if the procedural rule the state court used to deny you a hearing on the merits was (1) not "independent" of federal law, or (2) not "adequate" (in other words, good enough) to bar federal review of the claim. These are hard standards to meet but the terms are further described below.

(i) Showing the State Procedural Rule Is Not "Independent" of Federal Law

To show that the procedural rule the state court used was not independent of federal law, you must show that the state law is connected with federal law and not entirely separate from federal law.²⁵¹ State law is connected with federal law if judges must answer questions about federal law in order to decide the question of state law.²⁵² For example, if a state procedural rule says that when fundamental or constitutional errors of federal law are made, the claim is not considered untimely and can be reviewed, then the state court judges have to decide questions of federal law-the constitutional issue-before deciding if the state procedural rule applied to your case.²⁵³ If the procedural rule the state court used to deny your claim was not entirely separate from federal law, you can try to argue that the procedural rule is not "independent" of federal law and it should not stop the habeas court from reviewing your claim.

(ii) Showing the State Procedural Rule Was Not "Adequate" to Bar Federal Review

When you argue that your default of a state procedural rule is not an adequate (good enough) reason to deny review of your federal habeas petition, you are arguing that the state rule is unfair, interferes with enforcement of your federal rights, or is not applied consistently. Therefore, the state rule is not an adequate reason to bar review of your claim.²⁵⁴ Some common ways to argue that a state procedural rule is not adequate to bar review of your federal claims are:

(1) The state's rule is not "firmly established," "consistently applied," or "strictly or regularly followed;"²⁵⁵

(2) The state procedural rule did not provide you with a reasonable opportunity to have your federal claim heard in state court because the rule frustrates (interferes with) the enforcement of federal rights or is unreasonably hard to meet and has the effect of frustrating federal rights;²⁵⁶

(3) The procedural rule required you to object to the error before you could realize that the error occurred, or that the rule was applied in your case in a way that you could not have anticipated;²⁵⁷ or

(4) You tried to raise a claim, and even though you did not follow the rule exactly, the way you tried to bring up the claim served the same purpose as the state rule.²⁵⁸

If you have procedurally defaulted a claim, you can try to use the "independent or adequate state grounds" body of law to get around the procedural default. Remember, you have to show either that the state procedural rule is not independent of federal law or that the rule is not adequate to bar federal review.

(b) Exceptions to Procedural Default

If your claim is in procedural default, there are limited circumstances in which the federal court may still review your claim. These circumstances apply to both state and federal prisoners. The court will review your claim if you satisfy either the (1) "cause and prejudice" test or the (2) "fundamental miscarriage of justice" test.²⁵⁹ The courts rarely find either of these, so you should not depend on either of these exceptions to the procedural default rule.²⁶⁰ You should work hard to avoid procedural default by first raising all of your claims in state court if you are a state prisoner or on direct federal appeal if you are a federal prisoner.

(i) Cause and Prejudice Test

The "cause and prejudice" test is a defense to procedurally defaulted claims. That means that if your claim is procedurally defaulted, the federal habeas court may still review your claim if you can prove that you had "cause" for not following the procedure and experienced "prejudice." To pass this test you must:

(1) show cause (in other words, give a good reason for why you failed to follow the state procedural rule, or failed to present the claim in your direct appeal if you are a federal prisoner); and

(2) show prejudice (that your case would have come out differently if you had been able to present your claim of constitutional violation).²⁶¹

The cause and prejudice standard can be the greatest obstacle you must overcome to obtain federal habeas review. Since the Supreme Court announced the standard in 1977, ²⁶² federal courts have thrown out thousands of habeas petitions for failing to meet the standard. Therefore, you must think carefully and creatively about how to satisfy or get around the "cause and prejudice" standard.

1. Showing Cause

Showing "cause" for not following procedure is not easy. Generally, cause must be based on an outside factor that prevented you from avoiding a procedural mistake.²⁶³ Situations that courts consider "cause" include:

(1) State officials prevented you from following the state procedural rule.²⁶⁴ For example, at your trial, a state officer led you to believe that a constitutional violation had not occurred, when in fact it had. In this case, the officer's actions would be "cause" for why you did not object to the violation at trial. The court will allow you to argue this claim.²⁶⁵

(2) State officials purposely lied about material information.²⁶⁶ For example, when a state tells you that all Brady material (exculpatory material) has been turned over to you, when in reality it has not been, you cannot be expected to be able to present this evidence-since you did not know about it.²⁶⁷ The fact that the state lied to you establishes a cause for failure to investigate that the court may consider.

(3) The legal basis of your constitutional claim was not reasonably available to you (or to your lawyer) at the time of your trial.²⁶⁸ In other words, a federal court will excuse your failure to object to an incident that occurred at your trial, if you can show that you could not have known from the case law existing at the time of your trial that the incident was a constitutional violation. Unfortunately, most attempts to show cause in this way are unsuccessful.²⁶⁹ You will not show "cause" by just claiming any of the following things: that your attorney was unaware of the claim; ²⁷⁰ that your attorney believed it would be useless to raise the claim because the state court had rejected the claim before; ²⁷¹ or that your attorney overlooked the claim.²⁷²

(4) By failing to follow the state procedural rule (for example, failing to object at trial, failing to bring an appeal in time, etc.), your attorney provided you with "[i]neffective assistance of counsel."²⁷³ Remember that you must exhaust your claim of ineffective assistance of counsel in the state courts before presenting the claim to the federal court as cause for why you failed to follow a state procedural requirement.²⁷⁴

It is important to understand that the above list is not exhaustive: there may be other reasons in your specific case that would persuade a court to find that you have "cause." By "Shepardizing" both Wainwright²⁷⁵ and Coleman²⁷⁶ and researching this issue, you will discover other reasons that courts have found...