Expanding cause: how federal courts should address severe psychiatric impairments that impact state post-conviction review

• Author: Joshua D. Marcin
• Pages: 79-125

EXPANDING CAUSE: HOW FEDERAL COURTS SHOULD

ADDRESS SEVERE PSYCHIATRIC IMPAIRMENTS THAT

IMPACT STATE POST-CONVICTION REVIEW

Joshua D. Marcin*

ABSTRACT

A state prisoner must comply with state procedural rules to obtain federal judi-

cial review of one’s detention or sentence of death, but what if a severe psychiatric

impairment or illness prevents the prisoner—or one’s counsel—from complying

with those rules? Federal habeas courts have not agreed on whether this type of

impairment can excuse a procedural default. This Article argues that courts refus-

ing to recognize severe psychiatric impairments as valid excuses for defaults are

asking the wrong questions, like whether an impairment is “external to the peti-

tioner.” Courts instead should ask whether an impairment impeded a petitioner’s

ability to comply with a procedural rule or caused a breakdown in an attorney-cli-

ent relationship. Declining to recognize severe impairments as valid excuses in

these circumstances is out of step with the Supreme Court’s guidance and creates

hard-to-justify inconsistencies with the principles underlying procedural default

and other areas of habeas law.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

I. HOW SEVERE IMPAIRMENTS CAN LEAD TO PROCEDURAL DEFAULTS . . . . . 83

A. From a Trial in State Court through State Post-Conviction

Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

B. Moving to Federal Court, but Facing Procedural Default. . . . 92

II. WHY A CATEGORY OF “CAUSE” FOR SEVERE PSYCHIATRIC IMPAIRMENTS

ALIGNS WITH SUPREME COURT PRECEDENT AND THE PRINCIPLES THAT

GOVERN PROCEDURAL DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

A. The Court’s Guidance on “Cause,” with Attorney Negligence as

One—but Not the Only—Kind. . . . . . . . . . . . . . . . . . . . . . . . 97

B. Other Types of “Cause” and Circumstances Justifying

Equitable Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

C. Supreme Court Precedent and the Principles Underlying

Procedural Default Demand a Category of “Cause” for Severe

Psychiatric Impairments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

* I was a Supervising Attorney/Clinical Fellow with the Appellate Litigation Clinic at Georgetown University

Law Center when I wrote this article. Many thanks to Eve Brensike Primus, Erica Hashimoto, Carol Steiker,

Joshua Freiman, and Rosemary Auge for their thoughtful insights, guidance, and feedback. Additional thanks to

the editors at the American Criminal Law Review for their support throughout the editing process. © 2023,

Joshua D. Marcin.

79

III. WHAT LOWER COURTS HAVE DONE SO FAR: TAKEN INCONSISTENT

POSITIONS ON WHETHER SEVERE PSYCHIATRIC IMPAIRMENTS CAN EXCUSE A

PROCEDURAL DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

A. Courts Looking for “External Obstacles,” Perhaps Only Literal

Ones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

B. Courts Declining to Recognize a Psychiatric Impairment as

“Cause” Without Expressly Requiring an “External” Factor . 117

C. The Eighth Circuit’s Recognition that Certain Impairments

Constitute Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

D. A Path Forward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

INTRODUCTION

No matter how strong a state prisoner’s claim for relief from wrongful detention

or a sentence of death may be, procedural rules can stand in the way of judicial

review. If the prisoner does not adhere to a state’s rules for presenting a claim, state

courts may decline to review whether that claim has merit. And, if the prisoner

then seeks relief in federal court, a state may raise the affirmative defense of “pro-

cedural default,” using the earlier failure in state court to bar federal review.

What if a severe psychiatric impairment prevented the prisoner—or one’s coun-

sel—from complying with a state procedural rule? The Supreme Court has not pro-

vided “a comprehensive catalog” on when to excuse procedural defaults,

1

but it

has explained that a showing of “cause” for such an excuse would “ordinarily” be

something “external to the defense” or, in post-conviction proceedings, “external

to the petitioner.”

2

Litigants and scholars have argued that a psychiatric impair-

ment or illness should excuse a default, often explaining that it constitutes an

“objective factor external to the defense.”

3

Some lower federal courts, however,

have appeared reticent to adopt this argument and have diverged when deciding

what “external to the petitioner” means in this context.

4

This Article analyzes the issue in depth and argues that courts presented with

evidence that a petitioner—or one’s counsel—experienced a psychiatric impair-

ment when a default occurred should ask only whether that impairment impeded

one’s ability to comply with a procedural rule or caused a breakdown in an attorney-

1. See RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE § 26.3 n.10

and accompanying text (2020) (quoting Smith v. Murray, 477 U.S. 527, 533–34 (1986)).

2. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Coleman v. Thompson, 501 U.S. 722, 753 (1991)

(emphasis omitted); see also Aziz Z. Huq, Habeas and the Roberts Court, 81 U. CHI. L. REV. 519, 534 (2014)

(“Cause for a procedural default . . . has been only loosely defined to require something ‘external’ to a petitioner

. . . .” (quoting Carrier, 477 U.S. at 488)) (cited in Eve Brensike Primus, Federal Review of State Criminal

Convictions: A Structural Approach to Adequacy Doctrine, 116 MICH. L. REV. 75, 107 n.194 (2017) [hereinafter

Structural Approach to Adequacy]).

3. See Coleman, 501 U.S. at 753 (quoting Carrier, 477 U.S. at 488); infra Part I.B.

4. See infra Part III.

80 AMERICAN CRIMINAL LAW REVIEW [Vol. 60:79

client relationship that itself caused a default.

5

Recognizing psychiatric impairment

as a category of “cause” in these circumstances would align procedural default doc-

trine with other areas of habeas law.

6

As scholars have emphasized, procedural

default has “equitable origins”

7

and its “exceptions” are designed to “ensur[e] that

state prisoners have a realistic opportunity to present their federal claims in state

court.”

8

And numerous courts have recognized that either an attorney’s or a litigant’s

psychiatric impairment can be an “extraordinary circumstance” for purposes of

equitably tolling the federal habeas statute of limitations Congress established in

the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

9

To rule

severe impairment out as a valid excuse for a procedural default without even so

much as an individualized analysis of what brought about the default would allow a

breakdown in state-court proceedings to stand in the way of any meaningful judicial

review of a potentially meritorious claim.

Yet only one circuit has held in a published opinion that a petitioner’s psychiat-

ric illness or impairment can constitute “cause” to excuse a default.

10

Courts that

have refused to recognize a severe-psychiatric-impairment category of “cause”

have been asking the wrong questions and creating serious procedural due process

issues. Three circuits have viewed what the Supreme Court called “ordinarily” a

sufficient kind of “cause” as the only kind.

11

And these circuits have interpreted a

phrase the Court appeared to use figuratively—“external to the petitioner”—as if

the Court used it literally to mean outside someone’s body.

12

Other courts have

5. See infra Parts II–III.

6. See infra Part II. In addition, one treatise explains that the Supreme Court has, outside “the habeas corpus

context,” “suggest[ed] that the ‘objective/external factors’ capable of excusing a default may include all

‘extraordinary circumstances suggesting that the party [including counsel] is faultless’ in causing the default or

that the party was ‘prevented from complying by forces beyond its control.’” H

ERTZ & LIEBMAN, supra note 1, at

§ 26.3 n.20 and accompanying text (quoting Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S.

380, 387–88, 393–95 (1993), and citing other examples); see also id. at § 26.3 n.20 (adding that, “[u]nder this

approach, ‘cause’ includes situations in which a party’s or his attorney’s ‘incarceration’ or ‘ill health’ or ‘an act

of God or unforeseeable human intervention’ prevented compliance with a state procedural rule” (quoting

Pioneer Inv. Serv. Co., 507 U.S. at 387–88, 393–94)).

7. See Erica Hashimoto, Reclaiming the Equitable Heritage of Habeas, 108 NW. U. L. REV. 139, 150–63

(2013) [hereinafter Equitable Heritage] (explaining that procedural default, along with three other “gatekeeping

bars,” have “equitable origins,” as shown, in part, by their “individualized exceptions based on equitable

considerations”).

8. See Eve Brensike Primus, Equitable Gateways: Toward Expanded Federal Habeas Corpus Review of

State-Court Criminal Convictions, 61 ARIZ. L. REV. 291, 309 (2019) [hereinafter Equitable Gateways]; see also

id. at 305 (explaining that “federal courts have been willing to look past procedural defects in state prisoners’

petitions if those defects resulted from some unforeseen external obstacles (whether state created or not) that

prevented prisoners who were otherwise diligently pursuing their rights from complying with the procedural

rules”); id. (adding that a “federal court bypasses the procedural restrictions on equitable grounds, because the

prisoners, through no fault of their own, have never had a full and fair opportunity to have the federal claims

considered”).

9. See infra Part II.C.; infra notes 191–93 and accompanying text.

10. See infra Part III.C.

11. See infra Part III.A.

12. See id.

2023] EXPANDING CAUSE 81