Federal Habeas Corpus: Getting Around Procedural Default

The term “procedural default” means that if you could have raised your claim on direct appeal or any time earlier but did not, a federal court cannot hear the claim in a habeas corpus petition. But there are ways around this obstacle, including something called “cause and prejudice” and some other exceptions recognized by the courts.

Cause and Prejudice Defined

Cause means some factor that wasn`t your fault prevented you from filing your claim prior to your federal habeas petition. It comes down to whether the claim existed at the time you should have raised it. See Lynn v. United States, 365 F.3d 1225, 1235 (11th Cir. 2004). Once you show cause for not raising your claim earlier, then you must show why you would be “prejudiced” if the court doesn`t address the claim in your habeas petition.

Prejudice is not much different from the ineffective assistance of counsel (IAC) standard established in Strickland v. Washington, 466 U.S. 668 (1984). The Supreme Court held that IAC occurs when counsel errs and that, absent the error, there`s a “reasonable probability” of a different outcome.

The cause-and-prejudice exception was created by the Supreme Court in Wainwright v. Sykes, 433 U.S. 12 (1997), which replaced the more lenient “deliberate bypass” rule that didn`t really stop lawyers from purposely sitting on claims they knew could be raised in a habeas petition later on, should the direct appeal be unsuccessful. While strict, cause and prejudice are not rigid concepts, the Court has said. The following are some examples of ways around the procedural default bar.

Claims Outside the Record Excuse Procedural Default

In Waley v. Johnston, 316 U.S. 101 (1942), the Supreme Court faced a claim that a guilty plea was coerced by government threats and the lower courts denied the claim, saying that the record did not refute the claim and simply relied on the government`s word that there were no threats made. The Court held that claims which are outside the existing record must get a hearing to discern the facts.

Reaffirming this concept after the Antiterrorism and Effective Death Penalty Act in 1996 (AEDPA), the Court held in Bousley v. United States, 523 U.S. 614 (1998), that there is an “exception to the procedural default rule for claims that could not be presented without further factual development.” This rule is still the standard for claims based on facts that are not on the record.

IAC Excuses Procedural Default

There`s good reason why IAC claims are raised in habeas petitions and rarely on direct appeal: Habeas corpus is the “forum best suited to developing the facts necessary to determine the adequacy of representation” in a criminal case. Massaro v. United States, 538 U.S. 500 (2003). While this generally applies to federal prisoners filing for “habeas” relief under 28 U.S.C. sec 2255, the idea applies to all claims being raised in a federal habeas petition. If the claim needs development of the record then, habeas is the proper way of doing that. Direct appeals are limited to the existing record.

IAC of State Post-Conviction Counsel Excuses Procedural Default

Ineffective assistance of post-conviction counsel for state prisoners can also allow a federal habeas court to hear a claim that`s procedurally-defaulted. In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court established four criteria that must be met before a federal court can excuse procedural default because of post-conviction counsel`s failure to raise the claim in the state proceedings:

1. The IAC claim regarding trial counsel must be “substantial”,
2. Post-conviction counsel was ineffective for not raising the claim in the post-conviction proceedings,
3. The state post-conviction proceedings were the first opportunity to raise the IAC claim, and
4. State law or rules require IAC claims to be raised in the post-conviction proceedings, and not on direct appeal.

Not all states will meet these criteria, but just because there`s no state law saying IAC claims must be raised in a post-conviction proceeding doesn`t mean the state supreme court hasn`t established such a rule in one of its decisions.

Novelty of the Claim Can Excuse Procedural Default

A new legal basis for a claim that didn`t exist earlier may avoid the procedural default bar in a federal habeas case. In Reed v. Ross, 468 U.S. 1 (1984), the Supreme Court identified three criteria for whether one of its decisions would be a new legal basis for a claim:

1. When the Supreme Court overrules one of its precedents in a new constitutional decision that prevented the claim from being raised earlier,
2. When the Supreme Court overturns a widespread practice by the lower courts, and 3. When the Court disapproves a practice it had previously endorsed.

A good example of the first criterion was when the Court announced a new constitutional ruling in Johnson v. United States, 576 U.S. 591 (2015), holding that a provision of the a criminal statute was unconstitutional. Prior to Johnson, every court including the Supreme Court had held the provision was perfectly legal. And then in Johnson it was declared illegal. The nearly 15,000 federal prisoners raising a Johnson claim shortly after that ruling could do so under the “novelty” exception to procedural default.

Actual Innocence is an Exception to Procedural Default

The Supreme Court held in McQuiggin v. Perkins, 569 U.S. 303 (2013), that a showing of actual innocence (sometimes called “factual innocence) is an “exception” to any procedural bar to a claim on federal habeas review. In order to show actual innocence, you have to show that “in light of all the evidence, it is more likely than not that no reasonable juror would have convicted” you.

Notice the emphasized word “would” in that sentence. It doesn`t mean that a juror could have found you not guilty, but that they would have done so. It`s more of a subjective standard than a legal, objective standard. This leaves room for assumptions by the courts and can lead to the denial of relief, simply based on a difference of opinion among judges. You have to sway the judges just as if you were trying to sway a jury for actual innocence.

And believe it or not, an actual-innocence claim is not a valid claim for habeas relief by itself. It only gets you back into court with your underlying claims. You must point to a constitutional violation in order for the court to grant relief. Fortunately, coming up with an underlying constitutional claim if you`re actually innocent is not too difficult to do. See Reeves v. Fayette SCI, 897 F.3d 154 (3d Cir. 2018).

In conclusion, getting around the procedural-default bar on federal habeas review requires some creative arguments. While it`s not easy, it is quite possible to have your defaulted claims heard by the federal court.

Dale Chappell is the author of the Insider`s Guide series of post-conviction books, including Federal Habeas Corpus for State Prisoners, and Habeas Corpus for Federal Prisoners. Follow his blog at ZenLawGuy.com or on Twitter at @zenlawguy.

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