FEDERAL REVIEW OF STATE CRIMINAL CONVICTIONS: A STRUCTURAL APPROACH TO ADEQUACY DOCTRINE.

• Author: Primus, Eve Brensike

Modern state postconviction review systems feature procedural labyrinths so complicated and confusing that indigent defendants have no realistic prospect of complying with the rules. When defendants predictably fail to navigate these mazes, state and federal courts deem their claims procedurally defaulted and refuse to consider those claims on their merits. As a result, systemic violations of criminal procedure rights--like the right to effective counsel--persist without judicial correction.

But the law contains a tool that, if properly adapted, could bring these systemic problems to the attention of federal courts: procedural adequacy. Procedural adequacy doctrine gives federal courts the power to ignore procedural defaults and declare state procedural rules inadequate when those rules unduly burden defendants' abilities to assert violations of their federal rights. And unlike the more commonly invoked cause and prejudice doctrine, which excuses default on the theory that a defendant's unusual circumstances justify an exception to the rules, procedural adequacy doctrine allows courts to question the legitimacy of the state procedural regimes themselves. Procedural adequacy doctrine can therefore catalyze reform in a way that cause and prejudice cannot.

For procedural adequacy litigation to catalyze reform, however, it must be adapted to modern circumstances in one crucial respect. Historically, procedural adequacy doctrine focused on cases involving the deliberate manipulation of individual rules. Today, what is needed is a structural approach to adequacy, one that would consider how the interaction of multiple procedural rules unfairly burdens federal rights. Such a structural approach to adequacy is consistent with the doctrine's original purposes and is the most sensible way to apply procedural adequacy under current conditions. Litigants should accordingly deploy a structural approach to procedural adequacy doctrine and use it to stop states from burying systemic constitutional violations in complicated procedural labyrinths.

TABLE OF CONTENTS INTRODUCTION I. STATE PROCEDURAL RULES AS OBSTACLES TO THE ADJUDICATION OF CRIMINAL DEFENDANTS' FEDERAL CLAIMS II. STRUCTURAL ADEQUACY DOCTRINE AS A POTENTIAL SOLUTION A. The Origin and Purpose of Procedural Adequacy Doctrine B. A Structural Approach to Procedural Adequacy III. STRUCTURAL ADEQUACY DOCTRINE FALLS DORMANT: HOW THE FEDERAL COURTS SHIFTED TO A CAUSE AND PREJUDICE ANALYSIS IV. WHY STRUCTURAL ADEQUACY IS BETTER THAN CAUSE AND PREJUDICE A. Different Orientations: The Prisoner Versus the System B. Different Relief C. Different Obstacles to Review D. Doctrinal Coherence and Original Purposes CONCLUSION INTRODUCTION

It is no secret that criminal justice is badly in need of reform. (1) In state after state, criminal court systems violate defendants' constitutional rights through prosecutorial misconduct, (2) inadequate indigent defense delivery systems, (3) and the admission of shoddy scientific evidence. (4) Yet, despite the broad and growing awareness of pervasive problems in state criminal justice systems, few federal courts confront the need for reform in any systematic way. (5)

Why do federal courts not engage these well-known problems more comprehensively? A full answer would account for several different causes. But one important and underappreciated reason is rooted in the process of criminal litigation. Federal courts confront state criminal justice systems through the review of individual criminal convictions, and postconviction review features a complex web of procedural rules that deflects judicial attention away from systematic substantive problems. (6)

At the state level, modern postconviction review schemes are often so complicated and confusing that indigent criminal defendants have no realistic prospect of complying with the procedural rules. (7) A failure to comply, in turn, means that the state courts will refuse to consider the merits of a defendant's underlying constitutional claims. (8) Most defendants who fail to run the state's gauntlet of procedural rules successfully then find that the federal courts will not address their claims on the merits out of deference to the state court's finding of procedural default. (9) In short, the extreme difficulty of complying with the relevant procedural requirements prevents all but a small number of defendants from bringing many criminal procedure problems into the courts for adjudication on the merits. Given the small volume of merits cases, courts do not engage the underlying substantive problems as systemic rights violations calling for major responses, and the problems continue to go unaddressed. (10)

Consider, for example, how states handle ineffective assistance of trial counsel ("IATC") claims." Many states relegate all IATC claims to the postconviction process, rather than permitting those claims to be raised on direct appeal. (12) But in the postconviction process, most prisoners must proceed pro se, because states do not provide prisoners with lawyers. (13) (Under prevailing Sixth Amendment doctrine, the right to counsel applies only at trial and on the first appeal as of right.) (14) Obviously, prison inmates cannot effectively reinvestigate their cases or get sworn affidavits from witnesses without outside assistance. Moreover, state postconviction processes routinely feature strict pleading requirements with which unskilled pro se litigants will predictably be unable to comply. (15) The combined effect of these procedural rules is to bounce IATC claims out of court without ever requiring the state to entertain them on the merits. (16) The resulting failure to address large numbers of IATC claims is particularly problematic given the widespread understanding that states systematically underfund and overburden indigent defense attorneys in ways that compromise their ability to provide effective representation. (17) In short, the system engenders widespread ineffectiveness of defense representation by refusing to fund indigent defense adequately, and then it prevents courts from redressing the resulting constitutional violations by creating procedural barriers to reviewing claims of ineffective assistance.

As noted above, the federal courts have not done much to stop states from relying on procedural rules to avoid addressing defendants' constitutional claims. Most federal review of state court convictions occurs in the context of petitions for habeas corpus relief under 28 U.S.C. [section] 2254, (18) and petitioners who fail to navigate their states' procedural labyrinths successfully are generally deemed to have "procedurally defaulted" their constitutional claims. (19) Citing federalism concerns and the value of respect for state law rules, federal habeas courts will review only the petitions of those lucky few who flawlessly complete the procedural obstacle course of state postconviction review. (20) Given how few petitioners manage that feat, (21) most of the underlying constitutional issues go unaddressed in federal court, and the problems persist.

As this Article explains, the same current body of habeas law that deems so many habeas petitions procedurally defaulted also contains a powerful and underused tool that litigants could use to bring systemic problems in state criminal justice to the attention of federal courts. (22) That tool is the doctrine of procedural adequacy.

Procedural adequacy is an equitable doctrine that took shape during the heyday of the civil rights movement. (23) At that time, federal courts understood that state courts would often be hostile to criminal defendants' exercise of their federal constitutional rights, such that federal courts were badly needed as alternative forums in which defendants could raise constitutional challenges. (24) The federal courts further recognized that state courts were often willing to manipulate their procedural regimes in order to preclude federal review of constitutional claims by finding unreasonable or arbitrary ways of declaring that criminal defendants had failed to comply with procedural rules. (25) So when state courts attempted to avoid addressing federal questions by resting their decisions on unreasonable applications of state procedural rules, the federal courts deemed the state procedural grounds inadequate to preclude federal review. (26) In short, procedural adequacy doctrine gives federal courts the power and the duty to declare state procedural rules inadequate when those rules unduly burden defendants' abilities to assert violations of their federal rights, (27) and that is precisely what many state postconviction labyrinths do.

Unfortunately, litigants too often fail to raise procedural adequacy challenges when the state procedural problem is structural, meaning that it is the interaction among state postconviction rules that precipitates a procedural default. Instead, litigants and their lawyers (to the extent that they have lawyers) think of procedural adequacy as a doctrine to invoke when one particular procedural rule is applied problematically.

The paradigmatic scenario in which federal courts declared state rules procedurally inadequate is, of course, the 1950s or '60s case in which a racist Southern judge would deliberately make up a rule, or apply a rule bizarrely, in order to dismiss a constitutional claim brought by a black defendant or a civil rights activist (or a person who was both). (28) But procedural adequacy doctrine is not just a rule against the deliberate manipulation of state processes, and there is no reason why it should apply only when a petitioner's problem is the unfairness arising from a single procedural rule as opposed to the unfairness arising from the way that multiple rules interact.

Indeed, the Supreme Court took a more structural approach to procedural adequacy (without naming it as such) more than sixty years ago to stop one state from using the...