OCTOBER TERM, 1999
Syllabus
EDWARDS, WARDEN
v. CARPENTER
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 98-2060. Argued February 28, 2000-Decided April 25, 2000
Respondent pleaded guilty while maintaining his innocence to
Ohio murder and robbery charges in exchange for the prosecutor's
agreement that the plea could be withdrawn if the death penalty was
imposed. The Ohio Court of Appeals affirmed his conviction and
sentence of imprisonment, and he did not appeal to the Ohio Supreme
Court. After pursuing state postconviction relief
pro se,
respondent, represented by new counsel, petitioned the Ohio Court
of Appeals to reopen his direct appeal, claiming that his original
appellate counsel was constitutionally ineffective in failing to
challenge the sufficiency of the evidence supporting his conviction
and sentence. The court dismissed the application as untimely under
Ohio Rule of Appellate Procedure 26(B), and the Ohio Supreme Court
affirmed. Respondent then filed a federal habeas petition, raising,
inter alia, the sufficiency-of-the-evidence claim, and
alleging that his appellate counsel was constitutionally
ineffective in not raising that claim on direct appeal. The
District Court found that his ineffective-assistance-of-counsel
claim was cause excusing the procedural default of his
sufficiency-of-the-evidence claim because Rule 26(B) was not an
adequate procedural ground to bar federal review of the
ineffective-assistance claim; concluded that respondent's appellate
counsel was constitutionally ineffective; and granted the writ
conditioned on the state appellate court's reopening of
respondent's direct appeal of the sufficiency-of-the-evidence
claim. On cross-appeals, the Sixth Circuit held that the
ineffective-assistance claim served as cause to excuse the default
of the sufficiency-of-the-evidence claim, whether or not the former
claim had been procedurally defaulted, because respondent had
exhausted the ineffective-assistance claim by presenting it to the
state courts in his application to reopen the direct appeal.
Finding prejudice from counsel's failure to raise the
sufficiency-of-the-evidence claim on direct appeal, it directed the
District Court to issue the writ conditioned upon the state court's
according respondent a new culpability hearing.
Held: A procedurally defaulted ineffective-assistance
claim can serve as cause to excuse the procedural default of
another habeas claim only if the habeas petitioner can satisfy the
"cause and prejudice" standard with respect to the
ineffective-assistance claim itself. The procedural
447
default doctrine and its attendant "cause and prejudice"
standard are grounded in comity and federalism concerns,
Coleman v.
Thompson, 501 U. S. 722, 730, and
apply whether the default occurred at trial, on appeal, or on state
collateral attack,
Murray v.
Carrier, 477 U. S. 478, 490-492.
Thus, a prisoner must demonstrate cause for his state-court default
of
any federal claim, and prejudice therefrom, before the
federal habeas court will consider that claim's merits. 501 U. S.,
at 750. Counsel's ineffectiveness in failing properly to preserve a
claim for state-court review will suffice as cause, but only if
that ineffectiveness itself constitutes an independent
constitutional claim.
Carrier, supra, at 488-499. The comity
and federalism principles underlying the doctrine of exhaustion of
state remedies require an ineffective-assistance claim to be
presented to the state courts as an independent claim before it may
be used to establish cause for a procedural default.
Carrier,
supra, at 489. The doctrine's purposes would be frustrated if
federal review were available to a prisoner who had
presented his claim in state court, but in such a manner
that the state court could not, under its procedural rules, have
entertained it. Pp. 450-454.
163 F.3d
938, reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, KENNEDY, SOUTER, THOMAS, and
GINSBURG, JJ., joined. BREYER, J., filed an opinion concurring in
the judgment, in which STEVENS, J., joined,
post, p.
454.
Edward B. Foley, State Solicitor of Ohio, argued the
cause for petitioner. With him on the briefs were
Betty D.
Montgomery, Attorney General,
David M. Gormley, and
Stephen
J. Joseph Bodine, Jr., argued the cause for
respondent.
With him on the brief were David H. Bodiker, Laurence E. Komp,
and Angela Wilson Miller.
*
* A brief of
amici curiae urging reversal was filed for
the State of Texas et al. by
John Cornyn, Attorney General
of Texas,
Andy Taylor, First Assistant Attorney General,
Shane Phelps, Deputy Attorney General for Criminal Justice,
Gregory S.
Coleman, Solicitor General,
Idolina
G.
McCullough, Assistant Solicitor General,
Michael E.
McLachlan, Solicitor General of Colorado, and
John M.
Bailey, Chief State's Attorney of Connecticut, and by the
Attorneys General for their respective States as follows:
Bill
Pryor of Alabama,
Bruce M. Botelho of Alaska,
Mark
Pryor of Arkansas,
Janet Napolitano of Arizona,
Bill
Lockyer of California,
Ken
448
JUSTICE SCALIA delivered the opinion of the Court.
This case presents the question whether a federal habeas court
is barred from considering an ineffective-assistanceof-counsel
claim as "cause" for the procedural default of another claim when
the ineffective-assistance claim has itself been procedurally
defaulted.
I
Respondent was indicted by an Ohio grand jury for aggravated
murder and aggravated robbery. He entered a guilty plea while
maintaining his innocence-a procedure we held to be constitutional
in
North Carolina v.
Alford, 400 U. S. 25 (1970)-in
exchange for the prosecution's agreement that the guilty plea could
be withdrawn if the three-judge panel that accepted it elected,
after a mitigation hearing, to impose the death penalty. The panel
accepted respondent's plea based on the prosecution's recitation of
the evidence supporting the charges and, following a mitigation
hearing, sentenced him to life imprisonment with parole eligibility
after 30 years on the aggravated-murder count and to a concurrent
term of 10 to 25 years on the aggravated-robbery count. On direct
appeal respondent, represented by new counsel, assigned only the
single error that the evidence offered in mitigation established
that he should have been
Salazar of Colorado, M. Jane Brady of Delaware, Robert A.
Butterworth of Florida, Thurbert E. Baker of Georgia, James E. Ryan
of Illinois, Jeffrey A. Modisett of Indiana, Thomas
J.
Miller of Iowa, Carla
J. Stovall of Kansas, Richard P.
Ieyoub of Louisiana,
J. Joseph Curran, Jr., of Maryland,
Mike Hatch of Minnesota, Mike Moore of Mississippi, Jeremiah W
(Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg
of Nebraska, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin
of New Hampshire, John
J. Farmer, Jr., of New Jersey,
Patricia A. Madrid of New Mexico, W A. Drew Edmondson of Oklahoma,
Charles M. Condon of South Carolina, Mark Barnett of South Dakota,
Paul G. Summers of Tennessee, Jan Graham of Utah, William H.
Sorrell of Vermont, Christine Q Gregoire of Washington, Darrell V.
McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin.
449
eligible for parole after 20 rather than 30 years. The Ohio
Court of Appeals affirmed, and respondent did not appeal to the
Ohio Supreme Court.
After unsuccessfully pursuing state postconviction relief
pro
se, respondent, again represented by new counsel, filed an
application in the Ohio Court of Appeals to reopen his direct
appeal, pursuant to Ohio Rule of Appellate Procedure 26(B),1 on the
ground that his original appellate counsel was constitutionally
ineffective in failing to raise on direct appeal a challenge to the
sufficiency of the evidence. The appellate court dismissed the
application because respondent had failed to show, as the rule
required, good cause for filing after the 90-day period allowed.2
The Ohio Supreme Court, in a one-sentence
per curiam
opinion, affirmed.
State v.
Carpenter, 74 Ohio St. 3d
408,659 N. E. 2d 786 (1996).
On May 3, 1996, respondent filed a petition for writ of habeas
corpus in the United States District Court for the Southern
District of Ohio, alleging,
inter alia, that the evidence
supporting his plea and sentence was insufficient, in violation of
the Fifth and Fourteenth Amendments, and that his appellate counsel
was constitutionally ineffective in failing to raise that claim on
direct appeal. Concluding that respondent's
sufficiency-of-the-evidence claim was procedurally defaulted, the
District Court considered next whether the
ineffective-assistance-of-counsel claim could
1 Rule 26(B) provides, in relevant part:
"(1) A defendant in a criminal case may apply for reopening of
the appeal from the judgment of conviction and sentence, based on a
claim of ineffective assistance of appellate counsel. An
application for reopening shall be filed in the court of appeals
where the appeal was decided within ninety days from journalization
of the appellate judgment unless the applicant shows good cause for
filing at a later time."
2 Respondent filed his application to reopen on July 15, 1994.
Although Rule 26(B) did not become effective until July 1, 1993,
more than two years after respondent's direct appeal was completed,
the Court of Appeals considered respondent's time for filing to
have begun on the Rule's effective date and to have expired 90 days
thereafter.
450
serve as cause excusing that default. The District Court
acknowledged that the ineffective-assistance claim had been
dismissed on procedural grounds, but concluded that Rule 26(B)'s
inconsistent application by the Ohio courts rendered it inadequate
to bar federal habeas review. See
Ford v.
Georgia,
498 U. S. 411,
423-424 (1991) (state procedural default is not an "independent and
adequate state ground" barring subsequent federal review unless the
state rule was "'firmly established and regularly followed'" at the
time it was applied). Proceeding to the merits of the
ineffectiveassistance claim, the District Court concluded that
respondent's appellate counsel was constitutionally ineffective
under the test established in
Strickland v.
Washington, 466 U. S. 668 (1984), and
granted the writ of habeas corpus conditioned on the state
appellate court's reopening of respondent's direct appeal of the
sufficiency-of-the-evidence claim.
On cross-appeals, the United States Court of Appeals for the
Sixth Circuit held that respondent's
ineffectiveassistance-of-counsel claim served as "cause" to excuse
the procedural default of his sufficiency-of-the-evidence claim,
whether or not the ineffective-assistance claim itself had been
procedurally defaulted.
Carpenter v.
Mohr, 163 F. 3d
938 (CA6 1998). In the panel's view, it sufficed that
respondent had exhausted the ineffective-assistance claim by
presenting it to the state courts in his application to reopen the
direct appeal, even though that application might, under Ohio law,
have been time barred. Finding in addition prejudice from counsel's
failure to raise the sufficiencyof-the-evidence claim on direct
appeal, the Sixth Circuit directed the District Court to issue the
writ of habeas corpus conditioned upon the state court's according
respondent a new culpability hearing. We granted certiorari. 528 U.
S. 985 (1999).
II
Petitioner contends that the Sixth Circuit erred in failing to
recognize that a procedurally defaulted ineffective-
451
assistance-of-counsel claim can serve as cause to excuse the
procedural default of another habeas claim only if the habeas
petitioner can satisfy the "cause and prejudice" standard with
respect to the ineffective-assistance claim itself. We agree.
The procedural default doctrine and its attendant "cause and
prejudice" standard are "grounded in concerns of comity and
federalism,"
Coleman v.
Thompson, 501 U. S. 722, 730
(1991), and apply alike whether the default in question occurred at
trial, on appeal, or on state collateral attack,
Murray v.
Carrier, 477 U. S. 478, 490-492
(1986). "[A] habeas petitioner who has failed to meet the State's
procedural requirements for presenting his federal claims has
deprived the state courts of an opportunity to address those claims
in the first instance."
Coleman, 501 U. S., at 732. We
therefore require a prisoner to demonstrate cause for his
statecourt default of
any federal claim, and prejudice
therefrom, before the federal habeas court will consider the merits
of that claim.
Id., at 750. The one exception to that rule,
not at issue here, is the circumstance in which the habeas
petitioner can demonstrate a sufficient probability that our
failure to review his federal claim will result in a fundamental
miscarriage of justice.
Ibid.
Although we have not identified with precision exactly what
constitutes "cause" to excuse a procedural default, we have
acknowledged that in certain circumstances counsel's
ineffectiveness in failing properly to preserve the claim for
review in state court will suffice.
Carrier, 477 U. S., at
488-489. Not just any deficiency in counsel's performance will do,
however; the assistance must have been so ineffective as to violate
the Federal Constitution.
Ibid. In other words, ineffective
assistance adequate to establish cause for the procedural default
of some
other constitutional claim is
itself an
independent constitutional claim. And we held in
Carrier
that the principles of comity and federalism that underlie our
longstanding exhaustion doctrine-then as
452
now codified in the federal habeas statute, see 28 U. s. c. §§
2254(b), (c)-require
that constitutional claim, like others,
to be first raised in state court. "[A] claim of ineffective
assistance," we said, generally must "be presented to the state
courts as an independent claim before it may be used to establish
cause for a procedural default."
Carrier, supra, at 489.
The question raised by the present case is whether
Carrier's exhaustion requirement for claims of ineffective
assistance asserted as cause is uniquely immune from the
procedural-default rule that accompanies the exhaustion requirement
in all other contexts-whether, in other words, it suffices that the
ineffective-assistance claim was "presented" to the state courts,
even though it was not presented in the manner that state law
requires. That is not a hard question. An affirmative answer would
render
Carrier's exhaustion requirement illusory.3
We recognized the inseparability of the exhaustion rule and the
procedural-default doctrine in
Coleman: "In the absence of
the independent and adequate state ground doctrine in federal
habeas, habeas petitioners would be able to avoid the exhaustion
requirement by defaulting their federal claims in state court. The
independent and adequate state
3 Last Term, in a
per curiam summary reversal, we clearly
expressed the view that a habeas petitioner must satisfy the "cause
and prejudice" standard before his procedurally defaulted
ineffective-assistance claim will excuse the default of another
claim.
Stewart v.
LaGrand, 526 U. S. 115, 120
(1999). Respondent contends that we are not bound by
LaGrand
because in that case the habeas petitioner had
waived his
ineffectiveassistance claim in the District Court, thereby
rendering our procedural default discussion dicta, and because, in
any event,
per curiam opinions decided without the benefit
of full briefing or oral argument are of little precedential value.
Whether our procedural default analysis in
LaGrand is
properly characterized as dictum or as alternative holding, and
whatever the precedential value of a
per curiam opinion, the
ease with which we so recently resolved this identical question
reflects the degree to which the proper resolution flows
irresistibly from our precedents.
453
ground doctrine ensures that the States' interest in correcting
their own mistakes is respected in all federal habeas cases." 501
U. S., at 732. We again considered the interplay between exhaustion
and procedural default last Term in
O'Sullivan v.
Boerckel, 526
U. S. 838 (1999), concluding that the latter doctrine was
necessary to "'protect the integrity' of the federal exhaustion
rule."
Id., at 848 (quoting
id., at 853 (STEVENS, J.,
dissenting)). The purposes of the exhaustion requirement, we said,
would be utterly defeated if the prisoner were able to obtain
federal habeas review simply by "'letting the time run'" so that
state remedies were no longer available.
Id., at 848. Those
purposes would be no less frustrated were we to allow federal
review to a prisoner who had
presented his claim to the
state court, but in such a manner that the state court could not,
consistent with its own procedural rules, have entertained it. In
such circumstances, though the prisoner would have "concededly
exhausted his state remedies," it could hardly be said that, as
comity and federalism require, the State had been given a
"fair 'opportunity to pass upon [his claims].'"
Id.,
at 854 (STEVENS, J., dissenting) (emphasis added) (quoting
Darr v.
Burford, 339 U. S. 200, 204
(1950)).
To hold, as we do, that an ineffective-assistance-of-counsel
claim asserted as cause for the procedural default of another claim
can itself be procedurally defaulted is not to say that that
procedural default may not
itself be excused if the prisoner
can satisfy the cause-and-prejudice standard with respect to
that claim. Indeed, the Sixth Circuit may well conclude on
remand that respondent can meet that standard in this case
(although we should note that respondent has not argued that he
can, preferring instead to argue that he does not have to). Or it
may conclude, as did the District Court, that Ohio Rule of
Appellate Procedure 26(B) does not constitute an adequate
procedural ground to bar federal habeas review of the
ineffective-assistance claim. We express no view as to these
issues, or on the question
454
BREYER, J., concurring in judgment
whether respondent's appellate counsel was constitutionally
ineffective in not raising the sufficiency-of-the-evidence claim in
the first place.
***
For the foregoing reasons, the judgment of the Court of Appeals
for the Sixth Circuit is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
JUSTICE BREYER, with whom JUSTICE STEVENS joins, concurring in
the judgment.
I believe the Court of Appeals correctly decided the basic
question: "Whether a federal habeas court is barred from
considering an ineffective-assistance-of-counsel claim as 'cause'
for the procedural default of another claim when the
ineffective-assistance claim is itself procedurally defaulted." The
question's phrasing itself reveals my basic concern. Although the
question, like the majority's opinion, is written with clarity, few
lawyers, let alone unrepresented state prisoners, will readily
understand it. The reason lies in the complexity of this Court's
habeas corpus jurisprudence-a complexity that in practice can deny
the fundamental constitutional protection that habeas corpus seeks
to assure. Today's decision unnecessarily adds to that complexity
and cannot be reconciled with our consistent recognition that the
determination of "cause" is a matter for the federal habeas
judge.
To explain why this is so, and at the risk of
oversimplification, I must reiterate certain elementary ground
rules. A federal judge may issue a writ of habeas corpus freeing a
state prisoner, if the prisoner is "in custody in violation of the
Constitution or laws or treaties of the United States." 28 U. S. C.
§ 2254(a). However, the judge may not issue the writ if an adequate
and independent state-law ground justifies the prisoner's
detention, regardless of the federal claim.
455
See
Wainwright v.
Sykes, 433 U. S. 72, 81-88
(1977). One "state ground" often asserted as an adequate,
independent basis for holding a state prisoner in custody is a
state-law "procedural default," such as the prisoner's failure to
raise his federal claim at the proper time. However, under certain
conditions the State's assertion of such a ground is not "adequate"
(and consequently does not bar assertion of the federal-law claim).
There are three situations in which an otherwise valid state ground
will not bar federal claims: (1) where failure to consider a
prisoner's claims will result in a "fundamental miscarriage of
justice,"
Coleman v.
Thompson, 501 U. S. 722, 750
(1991); (2) where the state procedural rule was not" 'firmly
established and regularly followed,'"
Ford v.
Georgia, 498
U. S. 411, 423-424 (1991);
James v.
Kentucky,
466 U. S. 341,
348-349 (1984); and (3) where the prisoner had good "cause" for not
following the state procedural rule and was "prejudice[d]" by not
having done so,
Sykes, supra, at 87.
Ordinarily, a federal habeas judge, while looking to state law
to determine the potential existence of a procedural ground that
might bar consideration of the prisoner's federal claim, decides
whether such a ground is
adequate as a matter of federal
law. See
Ford, supra; James, supra; Coleman, supra. Thus the
Court has applied federal standards to determine whether there has
been a "fundamental miscarriage of justice." See,
e. g.,
Schlup v.
Delo, 513 U. S. 298, 314-317
(1995). And the Court has also looked to state practice to
determine the factual circumstances surrounding the application of
a state procedural rule, while determining as a matter of federal
law whether that rule is "firmly established [and] regularly
followed."
Ford, supra, at 424425. Federal habeas courts
would normally determine whether "cause and prejudice" excuse a
"procedural default" in the same manner.
Murray v.
Carrier, 477
U. S. 478, 489 (1986) ("[T]he question of cause" is "a question
of federal law").
456
BREYER, J., concurring in judgment
If I could stop here, the rules would be complicated, but still
comprehensible. The federal habeas judge would look to state law
and state practice to determine the facts and circumstances
surrounding a state procedural rule that the State claims is an
"adequate and independent state ground." However, the federal judge
would determine the adequacy of that "state ground" as a matter of
federal law.
Unfortunately, the rules have become even more complex. In
Carrier, the Court considered a prisoner's contention that
he had "cause" for failing to follow a state procedural rule-a rule
that would have barred his federal claim. The "cause," in the
prisoner's view, was that his lawyer (who had failed to follow the
state procedural rule) had performed inadequately. This Court
determined, as a matter of federal law, that only a performance so
inadequate that it violated the defendant's Sixth Amendment right
to effective assistance of counsel could amount to "cause"
sufficient to overcome a "procedural default."
Id., at
488-489. That being so, the Court reasoned, the prisoner should
have to exhaust the ineffectiveness claim in state court. The Court
wrote:
"[I]f a petitioner could raise his ineffective assistance claim
for the first time on federal habeas in order to show cause for a
procedural default, the federal habeas court would find itself in
the anomalous position of adjudicating an unexhausted
constitutional claim for which state court review might still be
available." Id., at 489.
And today the Court holds not only that the prisoner must
exhaust this claim by presenting it to the state courts, but also
that his failure to do so properly, i.
e., a failure to
comply with the State's rules for doing so, bars that prisoner from
ever asserting that claim as a "cause" for not having complied with
state procedural rules.
The opinion in
Carrier raises a special kind of
"exhaustion" problem. The Court considered a type of "cause"
("in-
457
effective assistance") for not following the state procedural
rule that happened itself independently to constitute a violation
of the Federal Constitution. After all, were the prisoner to prove
his claim (i.
e., show "ineffective assistance"), the State
might want to take action first. Ordinary exhaustion rules assure
States an initial opportunity to pass upon claims of violation of
the Federal Constitution. Why should a State not have a similar
opportunity in this situation? As the
Carrier Court pointed
out, it would be "anomalous" for a federal habeas court to
"adjudicat[e] an unexhausted constitutional claim for which state
court review might still be available."
Ibid.
The anomaly disappears, however, once the prisoner has exhausted
his "ineffective-assistance" claim (which appeared in the guise of
a "cause"). And there is no other anomaly that requires the
majority's result. Once a claim of ineffective assistance of
counsel has been exhausted-either through presentation in the state
courts or through procedural default-there is no difference between
that claim and any other claim of "cause" for the prisoner's
original procedural default. The federal habeas court is no longer
in the "anomalous position" of considering as cause an independent
claim that might yet be considered by the state courts, for there
is no longer any possibility that the state courts will consider
the claim. There is thus no more reason to hold that procedural
default of an ineffective-assistance claim bars the prisoner from
raising that ineffectiveassistance claim as a "cause" (excusing a
different procedural default asserted as a bar to a basic
constitutional claim) than there is to bar any other claim of
"cause" on grounds of procedural default. The majority creates an
anomaly; it does not cure one.
The added complexity resulting from the Court's opinion is
obvious. Consider a prisoner who wants to assert a federal
constitutional claim (call it FCC). Suppose the State asserts
458
BREYER, J., concurring in judgment
as a claimed "adequate and independent state ground" the
prisoner's failure to raise the matter on his first state-court
appeal. Suppose further that the prisoner replies by alleging that
he had "cause" for not raising the matter on appeal (call it
C). After
Carrier, if that alleged "cause"
(C)
consists of the claim "my attorney was constitutionally
ineffective," the prisoner must have exhausted C in the state
courts first. And after today, if he did not follow state rules for
presenting C to the state courts, he will have lost his basic
claim, FCC, forever. But, I overstate. According to the opinion of
the Court, he will not necessarily have lost FCC forever
if
he had "cause" for not having followed those state rules (i.
e., the rules for determining the existence of "cause" for
not having followed the state rules governing the basic claim, FCC)
(call this "cause"
C*). Ante, at 453. The prisoner could
therefore still obtain relief if he could demonstrate the merits of
C*, C, and FCC.
I concede that this system of rules has a certain logic, indeed
an attractive power for those who like difficult puzzles. But I
believe it must succumb to this question:
Why should a
prisoner, who may well be proceeding
pro se, lose his basic
claim because he runs afoul of state procedural rules governing the
presentation to state courts of the "cause" for his not having
followed state procedural rules for the presentation of his basic
federal claim? And, in particular,
why should that special
default rule apply when the "cause" at issue is an
"ineffective-assistance-of-counsel" claim, but not when it is any
of the many other "causes" or circumstances that might excuse a
failure to comply with state rules? I can find no satisfactory
answer to these questions.
I agree with the majority, however, that this case must be
returned to the Court of Appeals. Although the prisoner's
"ineffective-assistance" claim is not barred, he still must prove
that the "assistance" he received was "ineffective" (or some other
"cause"). And, if he does so, he still must prove his basic claim
that his trial violated the Federal Con-
459
stitution-all before he can secure habeas relief. I would remand
for consideration of these matters.
For these reasons, I concur in the judgment.
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