An argument for reviving the actual futility exception to the Supreme Court's procedural default doctrine.

• Author: Newton, Brent E.
• Position: Criminal law

1. INTRODUCTION

   A fundamental tenet of the Supreme Court's error preservation jurisprudence is that a criminal (1) defendant's failure to raise a legal claim, including a constitutional claim, during court proceedings (whether in the trial court or on appeal) "forfeits" (2) or "procedurally defaults" the claim on a subsequent direct appeal or collateral attack of the defendant's conviction or sentence. (3) Although it has spoken inconsistently on the issue over the years, the Supreme Court's current approach is to "default" a claim not raised in a prior proceeding even if the court in that proceeding would have been utterly powerless to grant relief on the claim in view of extant appellate precedent that squarely foreclosed the claim. (4)

   This article addresses the futility of objecting in view of adverse binding precedent and its implications under the procedural default doctrine, an issue that the Court has addressed repeatedly, beginning in 1947 with Sunal v. Large, (5) and most recently in 1998 in Bousley. (6) This article contends that as a matter of logic and equity the procedural default doctrine, as a general rule, should not be applied when an inferior court before which the defendant previously appeared (where a claim was not raised) would have been powerless to grant relief on that claim because then-governing precedent of a superior court dictated rejection of the claim.

   Applying the procedural default doctrine in such a situation runs afoul of the centuries-old "fundamental maxim of jurisprudence," (7) deeply rooted in common sense, that the law does not require "useless," "vain," or "futile" acts. (8) "Good judicial administration is not furthered by insistence on futile procedure." (9) Furthermore, requiting defense counsel to object on grounds that are clearly foreclosed by entrenched precedent subjects them to possible sanctions for raising "frivolous" claims. (10)

   This issue takes on great practical importance in view of the Supreme Court's perennial practice of significantly altering the existing legal landscape in the criminal law arena by (1) outright overruling or seriously eroding precedent that previously had foreclosed a claim; or (2) finding merit in a claim that a consensus or near-consensus of lower courts had previously rejected and that the Court never had addressed previously. (11) Under the Court's current procedural default jurisprudence, criminal defendants who failed to object on a legal ground that was then squarely foreclosed by governing precedent and that only later became legally viable as a result of supervening precedent are generally out of luck when they attempt to raise the claim for the first time on direct appeal or collateral review.

   Such an inequitable and illogical application of the procedural default doctrine should be abandoned. As discussed below, the Supreme Court should significantly modify its current approach to the futility issue. This article proposes such a modification, which, if adopted, would excuse procedural defaults when raising a claim at an earlier juncture in a case actually would have been futile from an objective standpoint--as opposed simply to being merely perceived as futile--and, thus, would have served no legitimate purpose.

2. THE PROCEDURAL DEFAULT DOCTRINE AND ITS RECOGNIZED EXCEPTIONS

   The consequences of a procedural default are typically harsh for a criminal defendant, whether in state or federal court. A defendant in a state prosecution who did not raise a federal constitutional claim in accordance with state procedural requirements (12) and who subsequently raises a claim of error, even a meritorious one, on direct appeal to the United States Supreme Court (13) will not receive a ruling on the merits of the claim if the state procedural bar is deemed "adequate," which means that the state court's application of the state's procedural rule served a "legitimate state interest." (14) Similarly, on collateral review of a state defendant's conviction or sentence in a federal habeas corpus proceeding, (15) a defendant's constitutional claim will not receive a merits ruling if the state courts applied an "adequate" state law procedural ground unless the defendant shows both "cause" for his procedural default and "prejudice" resulting from the claimed error. (16) Failure to establish cause will bar consideration of the claim as a threshold matter, notwithstanding a showing of tremendous prejudice based on a constitutional error. (17) In a series of decisions during the past two decades, the Supreme Court has held that, even if it would have been "futile" to have raised the procedurally defaulted claim in light of then-governing adverse appellate precedent, such futility does not excuse a procedural default. (18)

   A defendant in a federal prosecution who did not object on a particular legal ground in the trial court is subject to the "plain error" variation of the procedural default doctrine on direct appeal to a United States Court of Appeals or the United States Supreme Court. (19) In order to prevail under the plain error standard, the defendant must establish on appeal that there was (1) an error committed in the federal district court; (2) the error was "plain" under the law in effect at the time of the lower court proceedings or the law in effect at the time of the appeal; (3) the error was sufficiently prejudicial in that it affected the defendant's "substantial rights"; and (4) such a prejudicial error "seriously affected the fairness, integrity, or public reputation of the judicial proceedings." (20)

   The fourth prong of this plain error analysis vests tremendous discretion in an appellate court to determine whether such a showing has been made. (21) That is, even if a federal appellate court finds merit in the defendant's claim of prejudicial plain error, the court still possesses discretion to refuse to reverse the defendant's conviction or sentence based on the procedural default. Such discretion to affirm the judgment of the district court does not exist in a case of a meritorious claim of prejudicial error that was not procedurally defaulted in the lower court. (22) In Johnson v. United States, (23) the Supreme Court held that the plain error standard applies to a procedurally defaulted claim even if, at the time of the proceedings in the district court, governing appellate precedent would have made an objection utterly futile because a district court would have had no power to grant relief on the claim, which only later became viable based on an intervening decision by the Supreme Court. (24)

   A federal defendant who failed to raise a claim on direct appeal--whether or not it was preserved in the district court--faces the same stringent "cause and prejudice" standard applicable to state defendants in federal habeas corpus cases when the federal defendant raises the claim for the first time on collateral review under 28 U.S.C. [section] 2255. (25) Just as it held in Engel regarding state defendants, the Supreme Court in Bousley held that there is no "futility" exception to the procedural default doctrine for federal defendants on collateral review. (26)

   In sum, according to the Supreme Court's current error preservation jurisprudence, the fact that a procedurally defaulted claim would have been foreclosed under extant appellate precedent does not enable the defendant asserting it later to escape either the plain error standard on a federal direct appeal or the cause-and-prejudice standard on collateral review.

3. MIXED SIGNALS REGARDING FUTILITY AS AN EXCEPTION TO THE PROCEDURAL DEFAULT DOCTRINE

   The Supreme Court's first treatment of the futility issue occurred in 1947 in Sunal v. Large. (27) In Sunal, two defendants, Sunal and Kulick, were charged in federal court with draft evasion in separate cases. At their 1945 trials, they attempted to challenge their selective service classifications as erroneous as a defense to the charges--both men claimed to be religious ministers as opposed to mere conscientious objectors--but the trial court refused to permit them to raise such a defense to the jury. (28) After they were convicted and sentenced, neither appealed. Within a matter of days after the time for filing a direct appeal had expired, the Supreme Court granted certiorari in Smith v. United States (29) and Estep v. United States, (30) which were consolidated, and ultimately held that defendants charged with draft evasion could defend against such charges by challenging the correctness of their selective service classifications so long as they first had exhausted their administrative remedies within the Selective Service System. (31) Sunal and Kulick, who had exhausted their administrative remedies before trial, filed petitions for writs of habeas corpus, which challenged their convictions under Estep. (32)

   A threshold issue in Sunal was whether the two defendants' failure to have raised their claim on direct appeal foreclosed habeas corpus relief on procedural grounds. Disagreeing with both the Second Circuit (in Kulick's case) and the Fourth Circuit (in Sunal's case), the Supreme Court held that the defendants' failure to raise the issue on direct appeal foreclosed their ability to do so on collateral review. (33) At the time of their decision not to file a direct appeal in 1945, precedent from all eight of the United State Courts of Appeals to have addressed the issue, including the Second and Fourth Circuits, had rejected precisely the defense that Sunal and Kulick had attempted to raise at their trials, and the Supreme Court recently had denied certiorari in one of those other cases. (34) More significant, at that time, extant Supreme Court precedent, Falbo v. United States, (35) certainly appeared, from an objective standpoint, to directly foreclose the claim. (36) As the Fourth Circuit observed in Sunal's case, (37) the Court's decision in Falbo "was very widely understood by the Bench and Bar" to...