State prisoners must “exhaust” all their post-conviction remedies in state court before bringing a claim in federal court on habeas corpus review. If they don’t follow the state’s procedural rules, they risk having their claim “procedurally-defaulted” (or procedurally-barred) in federal court and their habeas petition dismissed. The only way around this is to show “cause and prejudice” or a “fundamental miscarriage of justice” to excuse the default.
But there is another, less traveled, route to having a procedurally-defaulted claim heard in federal court: Proving that the state procedural rule wasn’t an “adequate” rule, since only state rules that meet this standard can lead to a procedural default in federal court.
The “independent and adequate” doctrine was developed by the Supreme Court decades ago. See Coleman v. Thompson, 501 U.S. 722 (1991). Its purpose was to allow state courts to fix an error before the federal courts got involved. It applies to direct appeals to the federal court from the state courts, as well as federal habeas cases that came up through the state courts.
Most often, prisoners bringing a procedurally-defaulted claim on federal habeas corpus focus on showing “cause” to excuse the default and the “prejudice” that would result if the claim wasn’t heard. That’s the “cause and prejudice” standard in a nutshell. Proving a fundamental miscarriage of justice if the error is left in place automatically meets the prejudice criterion. A quintessential FMOJ is the actual innocence of someone wrongfully imprisoned.
However, showing that the state procedural rule is “inadequate” is another way to have the defaulted claim heard in federal court. A recent case provides a good example of when a state procedural rule is inadequate to avoid procedural default on federal habeas review: Gibbs v. Huss, 2021 U.S. App. LEXIS (6th Cir. Aug. 30, 2021).
In that case, Phillip Gibbs was convicted of armed robbery and later found out the courtroom was closed during jury selection, a blatant constitutional violation. When he raised this on direct appeal, the court said he had procedurally-defaulted the claim because he failed to object when the error happened. Michigan’s contemporaneous-objection rule required the objection, regardless of the fact that Gibbs had no idea the courtroom was closed until long after the trial.
Eventually, Gibbs raised his claim in a habeas petition in the U.S. District Court in Detroit. While that court said the claim had “real merit,” it ultimately concluded that the state’s rule was “independent and adequate” to render the claim procedurally-defaulted. Gibbs took his case to the U.S. Court of Appeals for the Sixth Circuit.
While the Sixth Circuit came short of declaring Michigan’s contemporaneous-objection rule inadequate in Gibbs’ case, leaving that task to the district court on remand, it provided some reasons why it could be:
(1) The Court pointed out that there’s no “state interest” in requiring someone to object to an error of which they were not aware at the time,
(2) The Court said there was no state case law that Michigan courts consistently applied the contemporaneous-objection rule to cases like Gibbs’, for errors unknown at the time they’re made. In order to be “adequate,” a state rule must be “firmly established and regularly followed.” Ford v. Georgia, 498 U.S. 411(1991),
(3) The trial judge made clear that her rule was to close the courtroom during voir dire, meaning that an objection by Gibbs likely wouldn’t have done any good, and
(4) Most importantly, the Court said that requiring Gibbs to object to an unknown error would be an “egregious” application of the rule, and that “such a rule would deny due process.”
To be sure, proving a state procedural rule is inadequate is difficult. In some cases, proving cause and prejudice or a FMOJ may be a better route to avoid procedural default. but don’t overlook the opportunity to show how the state rule was inadequate in your case in an attempt to avoid procedural default in federal court.
Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. He is a consultant in federal post-conviction procedure and an authority on federal sex offense issues.
