by Dale Chappell

The term “procedural default” is a significant barrier in federal habeas corpus petitions. It means that if a claim could have been raised on direct appeal or at any earlier stage but was not, a federal court generally cannot consider the claim. However, there are several recognized exceptions to this rule, allowing petitioners to bypass procedural default under specific circumstances.

Understanding Procedural Default

The doctrine of procedural default is anchored in the notion that legal issues should be addressed and resolved as soon as they arise. By encouraging defendants to raise all pertinent issues at the earliest opportunity, typically during the trial or on direct appeal, the judicial system seeks to prevent unnecessary delays and avoid piecemeal litigation. This approach not only fosters judicial efficiency but also upholds the finality of convictions – ensuring that once a case is adjudicated, it reaches a conclusion, and the parties can move forward. But criminal cases are not that simple.

Courts have grappled with the balance between adhering to procedural rules and ensuring justice. For instance, in Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court underscored the importance of procedural default but also acknowledged the necessity of exceptions to prevent unjust outcomes. Additionally, in Murray v. Carrier, 477 U.S. 478 (1986), the Court clarified the parameters of the “cause and prejudice” standard, emphasizing that a petitioner must show both cause for the default and actual prejudice as a result of the alleged violation of federal law.

Despite the benefits of procedural default, the courts acknowledge that its rigid application can sometimes lead to unjust outcomes. As a result, several exceptions have been developed to mitigate the harshness of this doctrine. These exceptions are designed to address unique situations where the strict enforcement of procedural rules would otherwise result in a miscarriage of justice.

Cause and Prejudice Defined

The Supreme Court created the “cause and prejudice” rule in Engle v. Isaac, 456 U.S. 107 (1982), and United States v. Frady, 456 U.S. 152 (1982), during a time when the Court was focused on limiting the ability of prisoners to challenge their convictions. These decisions marked a pivotal shift in the approach to procedural default in federal habeas corpus cases. The cause and prejudice standard, which allows federal habeas courts to consider defaulted claims if the petitioner can demonstrate both cause for the default and actual prejudice resulting from the alleged violation of federal law.

The “cause and prejudice” framework replaced the more lenient “deliberate bypass” rule from Fay v. Noia, 372 U.S. 391 (1963). The “deliberate bypass” standard allowed federal habeas review if the petitioner had not deliberately bypassed state procedures. However, the Supreme Court’s decision in Wainwright v. Sykes, 433 U.S. 72 (1977), signaled a shift toward a stricter approach, emphasizing the importance of adhering to state procedural rules and encouraging defendants to raise all possible claims at the earliest opportunity.

Under the “cause and prejudice” framework, “cause” means some factor beyond the petitioner’s control prevented him from filing the claim in a timely manner. This could include interference by officials, the unavailability of the factual or legal basis for a claim, or ineffective assistance of counsel. The U.S. Court of Appeals for the Eleventh Circuit in Lynn v. United States, 365 F.3d 1225 (11th Cir. 2004), clarified that cause requires showing an objective factor external to the defense impeded counsel’s efforts to comply with the procedural rule. For instance, if the legal or factual basis for a claim did not exist or was not recognized at the time it should have been raised, this could constitute cause.

Prejudice, in the context of the “cause and prejudice” standard, is commonly understood through the lens of the ineffective assistance of counsel (“IAC”) standard established in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, prejudice requires showing that counsel’s errors likely affected the outcome of the trial. However, in the “cause and prejudice” context, the definition is somewhat narrower. Prejudice requires a showing that a “fundamental defect” would result if the claim were not allowed to proceed. This means that the error must have had a substantial and injurious effect or influence on the outcome.

Claims Outside the Record Excuse Procedural Default

Claims based on facts outside the trial record are another recognized exception to procedural default. In Waley v. Johnston, 316 U.S. 101 (1942), the Supreme Court addressed a claim that a guilty plea was coerced by government threats. The lower courts denied the claim because the trial record did not refute it and relied solely on the government’s assertion that no threats were made. The Supreme Court held that claims outside the existing record must be given a hearing to discern the facts, underscoring the need for thorough judicial review when the trial record is incomplete or ambiguous.

The decision in Waley highlights the Supreme Court’s recognition that trial records may not always capture the full context or truth of a defendant’s claims. When allegations arise that cannot be substantiated or refuted by the existing record – such as claims of coerced guilty pleas – courts must conduct hearings to explore these claims further. This approach ensures that justice is not compromised by an incomplete or misleading trial record.

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996 imposed stricter standards on federal habeas corpus review, significantly narrowing the circumstances under which federal courts can grant relief. Despite these stringent requirements, the AEDPA did not eliminate the exception for claims requiring additional factual development. The AEDPA emphasizes deference to state court decisions and mandates that federal habeas relief may be granted only when state court rulings are contrary to, or involve an unreasonable application of, clearly established federal law or are based on an unreasonable determination of the facts.

The AEDPA imposes stricter standards on federal habeas corpus review but did not eliminate the exception for claims requiring further factual development. In Bousley v. United States, 523 U.S. 614 (1998), the Court reaffirmed that there is an exception to the procedural default rule for claims that could not be presented without additional factual development. This ruling ensures that petitioners have an avenue for relief when crucial facts are not part of the trial record.

Ineffective Assistance of Counsel Excuses Procedural Default

Ineffective assistance of counsel claims are often raised in habeas petitions rather than on direct appeal because habeas corpus is better suited for developing the necessary facts to assess the adequacy of representation. In Massaro v. United States, 538 U.S. 500 (2003), the Supreme Court ruled that IAC claims are best raised in habeas proceedings rather than on direct appeal, and the failure to raise them on appeal does not procedurally default these claims.

In Massaro, the Court emphasized the limitations of the trial record in IAC claims and the need for a separate forum to address these issues adequately. Evaluating counsel’s performance solely based on the trial record can be challenging because the record may not capture all aspects of the attorney’s conduct or decision-making process. Critical information – such as what counsel did or did not investigate, advice given to the defendant, or reasons behind strategic choices – may not be evident from the trial proceedings alone. Therefore, the habeas corpus process provides an essential mechanism for defendants to present additional evidence that could demonstrate ineffective assistance.

While the focus of Massaro was on federal habeas corpus proceedings, state prisoners also have avenues to raise IAC claims and other trial court errors in federal habeas petitions. Although the procedural details for state prisoners differ and are beyond the scope of this discussion, it is crucial for state prisoners to understand their rights and the various options available to them in federal court. These options may include filing habeas corpus petitions to challenge the effectiveness of their counsel and other aspects of their trial.

Ineffective Assistance of State Postconviction Counsel Excuses Procedural Default

The Supreme Court’s decision in Martinez v. Ryan, 566 U.S. 1 (2012), established a significant exception to the procedural default rule, allowing federal courts to hear claims that would otherwise be barred. The outlined criteria provide a clear framework for determining when procedural default can be excused due to ineffective assistance of postconviction counsel:

• Substantial IAC Claim: The claim regarding ineffective assistance of trial counsel must be substantial, meaning it has some merit or potential to succeed if reviewed on its merits.
• Ineffective Postconviction Counsel: The petitioner must demonstrate that his postconviction counsel was ineffective for failing to raise the substantial IAC claim during state postconviction proceedings.
• First Opportunity to Raise the Claim: The state postconviction proceedings must have been the first available opportunity for the petitioner to raise the IAC claim. This is often the case when state procedural rules require IAC claims to be raised in postconviction proceedings rather than on direct appeal.
• State Law Requirements: The petitioner must show that state law or procedural rules mandated that IAC claims be brought during postconviction proceedings, not on direct appeal.

Meeting these criteria, a state prisoner filing for federal habeas relief may have his procedurally defaulted claim heard if his postconviction counsel was ineffective. The decision in Martinez provides a pathway for state prisoners that is not currently available to federal movants under § 2255. This gap highlights a potential area for legal development and advocacy, as federal prisoners similarly disadvantaged by ineffective postconviction counsel may lack recourse.

After working with numerous postconviction attorneys over the years, I believer there is a need for federal prisoners to be able to challenge the effectiveness of their postconviction counsel, especially when their IAC claims must first be raised in a § 2255 motion, not on appeal. The lack of recognition for ineffective assistance of postconviction counsel in § 2255 cases creates an inequitable situation for federal prisoners. Given the critical role postconviction proceedings play in addressing IAC claims, there is a compelling argument for extending the principles of Martinez to federal cases. Federal prisoners should have the ability to challenge the effectiveness of their postconviction counsel, particularly since their IAC claims must be raised in a § 2255 motion.

Novelty of the Claim Can Excuse Procedural Default

The Supreme Court’s decision in Reed v. Ross, 468 U.S. 1 (1984), provides a crucial exception to the procedural default rule for claims based on new legal grounds. This exception acknowledges that defendants cannot be expected to raise claims that were not legally viable at the time of their trial or direct appeal. The Court identified three specific circumstances under which a new legal basis could excuse procedural default: 

• Overruling of Precedent: When the Supreme Court issues a new constitutional decision that overrules one of its prior precedents, defendants may raise claims based on this new legal understanding even if they did not do so during their initial trial or appeal.
• Overturning Widespread Practice: If the Supreme Court overturns a practice widely accepted and applied by lower courts, this constitutes a new legal basis for claims. Defendants who were previously subject to the now-overturned practice can raise this as a ground for relief despite procedural default.
• Disapproval of Previously Endorsed Practice: When the Supreme Court disapproves a practice it had previously endorsed, defendants affected by the practice can bring claims based on this change in legal interpretation, thus bypassing the procedural default bar. 

The novelty exception recognized in Reed is vital for ensuring justice and fairness in the legal system. It prevents defendants from being unfairly penalized for failing to anticipate future changes in the law. By allowing claims based on new legal grounds, this exception ensures that significant developments in constitutional law can be applied retroactively to cases where the original legal framework did not provide for such claims.

The decision in Johnson v. United States, 576 U.S. 591 (2015), exemplifies the application of this exception. In Johnson, the Supreme Court declared the residual clause of the Armed Career Criminal Act unconstitutionally vague. This clause had been upheld by various courts, including the Supreme Court itself, for years. The ruling in Johnson created a new legal basis for challenging sentences imposed under the residual clause, allowing petitioners to raise claims that were previously unavailable. Consequently, many defendants could bypass procedural default and seek relief based on this novel constitutional decision.

While procedural default rules serve to promote the finality of convictions and judicial efficiency, exceptions like those recognized in Reed and exemplified by Johnson balance these objectives with the need for fairness and justice. They ensure that defendants are not denied relief simply because the legal basis for their claims did not exist at the time of their trial or appeal.

Actual Innocence Is an Exception to Procedural Default

The Supreme Court has held that demonstrating actual innocence can overcome any procedural bar. In McQuiggin v. Perkins, 569 U.S. 383 (2013), the Court ruled that a showing of actual innocence, sometimes called “factual innocence,” is an exception to procedural default. To establish actual innocence, a petitioner must show that “in light of all the evidence, it is more likely than not that no reasonable juror would have convicted” him.

This standard is stringent, requiring compelling evidence of innocence. But it does not mean that a juror could have found the petitioner not guilty, only that a reasonable juror would have done so. The subjective nature of this standard allows for judicial discretion, emphasizing the importance of presenting strong and unequivocal evidence. Courts must thoroughly evaluate the new evidence in the context of the entire case record to determine if it meets the rigorous requirements of the actual innocence exception. This underscores the necessity for petitioners to gather and present highly persuasive evidence that was not available at the time of the original trial.

Importantly, an actual innocence claim does not itself provide grounds for habeas relief. Instead, it serves as a gateway that allows courts to consider the petitioner’s underlying claims, which would otherwise be procedurally barred. This principle is crucial in ensuring that defendants who can convincingly demonstrate their innocence are not precluded from having their constitutional claims heard due to procedural technicalities.

Even if a petitioner successfully demonstrates actual innocence, he must still prove that a constitutional violation occurred to obtain habeas relief. This requirement was highlighted in Reeves v. Fayette SCI, 897 F.3d 154 (3d Cir. 2018), where the court emphasized that an actual innocence claim must be accompanied by a substantive constitutional claim. The actual innocence gateway thus ensures that genuinely innocent individuals can have their constitutional claims adjudicated, but it does not eliminate the necessity of demonstrating a violation of constitutional rights.

Conclusion

Overcoming the procedural default bar in federal habeas review requires careful legal strategy and creative argumentation. While procedural default presents a significant obstacle, the recognized exceptions provide pathways for petitioners to have their claims heard in federal court. These exceptions underscore the judiciary’s commitment to ensuring justice and fairness, particularly in cases where strict adherence to procedural rules would result in manifest injustice.

Navigating the complexities of procedural default and the associated exceptions is challenging but not insurmountable. With a thorough understanding of the legal principles and strategic use of the exceptions, it is possible to persuade federal courts to consider defaulted claims, thereby providing an essential avenue for relief to those who have been wrongfully convicted or denied a fair trial.

Dale Chappell is Criminal Legal News’ resident habeas expert, with over 400 published articles on postconviction relief. He is a contract paralegal specializing in appeals and postconviction relief and can be reached at www.zenlawguy.com.

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