OCTOBER TERM, 1997
Syllabus
TREST
v. CAIN, WARDEN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No.96-7901. Argued November 10, 1997-Decided December 9,1997
In upholding the District Court's refusal to issue a writ of
habeas corpus vacating petitioner Trest's Louisiana prison
sentence, the Fifth Circuit stated its belief that a state court
would refuse to consider Trest's federal claims as untimely, and
that this "procedural default" was an adequate and independent
state ground for denying him relief. In his petition for
certiorari, Trest pointed out that the Fifth Circuit had raised and
decided the "procedural default" question
sua sponte, and
that language in the court's opinion suggested that it had thought
that, once it had noticed the possibility of a procedural default,
it was required to raise the matter on its own.
Held: A court of appeals is not "required" to raise the
issue of procedural default
sua sponte. Pp. 89-92.
(a) In the habeas context, procedural default is normally a
"defense" that the State is "obligated to raise" and "preserv[e]"
if it is not to "lose the right to assert the defense thereafter."
Gray v.
Netherland, 518 U. S. 152, 166. This Court is
unaware of any precedent stating that a habeas court must raise
such a matter where the State itself does not do so. Pp. 89-90.
(b) This is not an appropriate case in which to examine whether
the law nonetheless permitted the Fifth Circuit to raise the
procedural default
sua sponte. First, its opinion contains
language suggesting it believed that, despite Louisiana's failure
to raise the matter, Circuit precedent required, not simply
permitted, it to consider a potential procedural default. Second,
Trest made clear in his certiorari petition that he intended to
limit the question to mandatory consideration, and Louisiana in its
response did not object, suggest alternate wording, or ask this
Court to consider the question in any broader context. Third, the
broader question cannot be easily answered in the context of this
case, for this Court is uncertain about matters which arguably are
relevant to the question whether the law permitted the Fifth
Circuit to raise a procedural default
sua sponte: questions
about the exhaustion of Trest's federal claims in state court and
about the relevant procedural rules to be applied. The parties
might have considered these questions, and the Fifth Circuit might
have determined their relevance or their answers,
88
had that court not decided the procedural default question
without giving the parties an opportunity for argument. pp.
90-92.
94 F.3d
1005, vacated and remanded.
BREYER, J., delivered the opinion for a unanimous Court.
Rebecca L. Hudsmith argued the cause and filed briefs for
petitioner.
Kathleen E. Petersen, Assistant Attorney General of
Louisiana, argued the cause for respondent. With her on the brief
were
Richard P. Ieyoub, Attorney General, and
Mary Ellen
Hunley, Assistant Attorney General. *
JUSTICE BREYER delivered the opinion of the Court.
The petitioner in this case, Richard Trest, seeks a writ of
habeas corpus, which would vacate a long sentence that he is
serving in a Louisiana prison for armed robbery. The District Court
refused to issue the writ. Trest appealed to the Court of Appeals
for the Fifth Circuit, which ruled against him on the ground of
"procedural default."
Trest v.
Whitley, 94 F.3d
1005, 1007 (1996). The Fifth Circuit believed that Trest had
failed to raise his federal claims on time in state court, that a
state court would now refuse to consider his claims for that
reason, and that this state procedural reason amounted to an
adequate and independent state ground for denying Trest relief.
Hence, in the absence of special circumstances, a federal habeas
court could not reach the merits of Trest's federal claims.
Id., at 1007-1009; see
* Edward M. Chikofsky and
Barbara E.
Bergman filed a brief for the National Association of Criminal
Defense Lawyers as
amicus curiae urging reversal.
A brief of
amici curiae urging affirmance was filed for
the State of Mississippi et al. by
Mike Moore, Attorney
General of Mississippi,
Marvin L. White, Jr., Assistant
Attorney General, and
Jeffrey A. Klingfuss, Special
Assistant Attorney General,
Robert A. Butterworth, Attorney
General of Florida,
Joseph P. Mazurek, Attorney General of
Montana, and
Frankie Sue Del Papa, Attorney General of
Nevada.
89
generally Coleman v. Thompson,
501 U. S. 722 (1991);
Rose
In his petition for certiorari to this Court, Trest pointed out
that the Court of Appeals had raised and decided the question of
"procedural default"
sua sponte. The parties themselves had
neither raised nor argued the matter. And language in the Court of
Appeals' opinion suggested that the court had thought that, once it
had noticed the possibility of a procedural default, it was
required to raise the matter on its own. Trest consequently asked
us to decide whether a court of appeals, reviewing a district
court's habeas corpus decision,
"is required to raise ...
sua sponte" a petitioner's potential procedural default.
Pet. for Cert. i (emphasis added). We agreed to do so.
Precedent makes clear that the answer to the question presented
is "no." A court of appeals is not "required" to raise the issue of
procedural default
sua sponte. It is not as if the presence
of a procedural default deprived the federal court of jurisdiction,
for this Court has made clear that in the habeas context, a
procedural default, that is, a critical failure to comply with
state procedural law, is not a jurisdictional matter. See
Lambrix v.
Singletary, 520 U. S. 518, 522-523
(1997);
Coleman, 501 U. S., at 730-731. Rather, "[i]n the
habeas context, the application of the independent and adequate
state ground doctrine," of which a procedural default is typically
an instance, "is grounded in concerns of comity and federalism."
Id., at 730 (contrasting habeas proceeding with this Court's
direct review of a state court judgment). Thus, procedural default
is normally a "defense" that the State is "obligated to raise" and
"preserv[e]" if it is not to "lose the right to assert the defense
thereafter."
Gray v.
Netherland, 518 U. S. 152, 166
(1996); see
Jenkins v.
Anderson, 447 U. S. 231, 234, n. 1
(1980). We are not aware of any precedent stating that a habeas
court
must raise such a matter where the State itself does
not do so. And Louisiana concedes as much, for it says in its brief
that "the Fifth
90
Circuit clearly was not 'required' to
sua sponte invoke
procedural default." Brief for Respondent 16-17.
Louisiana, however, would like us to go beyond the question
presented and hold that the law permitted (though it did not
require) the Fifth Circuit to raise the procedural default
sua
sponte. Cf.
Granberry v.
Greer, 481 U. S. 129, 133-134
(1987) (appellate court may raise
sua sponte petitioner's
failure to exhaust state remedies). We recognize some uncertainty
in the lower courts as to whether, or just when, a habeas court
may consider a procedural default that the State at some
point has waived, or failed to raise. Compare
Esslinger v.
Davis, 44 F.3d
1515, 1525-1528 (CAll 1995)
(sua sponte invocation of
procedural default serves no important federal interest), with
Hardiman v.
Reynolds, 971 F.2d
500, 502-505 (CAlO 1992) (comity and scarce judicial resources
may justify court raising state procedural default
sua
sponte); see also J. Liebman & R. Hertz, 2 Federal Habeas
Corpus Practice and Procedure § 26.2, pp. 814-817 (1994) (citing
cases). Nonetheless, we do not believe this is an appropriate case
in which to examine that question for several reasons. First, the
Fifth Circuit's opinion contains language suggesting the court
believed that, despite Louisiana's failure to raise the matter,
Circuit precedent required the court (and did not simply permit the
court) to consider a potential procedural default. See,
e.
g., 94 F. 3d, at 1007 ("[T]his court's decision in
Sones v.
Hargett ... precludes us from reviewing the
merits of Trest's habeas challenge").
Second, the language of the question presented in Trest's
petition for certiorari, as well as the arguments made in his
petition, made clear that Trest intended to limit the question in
the way we have described. Yet Louisiana in its response did not
object or suggest alternate wording. Nor did Louisiana ask us to
consider the question in any broader context.
Third, we cannot now easily answer the broader question in the
context of this case, for we are uncertain about mat-
91
ters which arguably are relevant to the question whether the law
permitted the Fifth Circuit to raise a procedural default
sua
sponte. The parties disagree, for example, about whether or not
Trest has fully, or partially, exhausted his current federal claims
by raising them in state court. Cf.
Rose v.
Lundy,
supra, at 518-520. They disagree about whether Louisiana has
waived any "nonexhaustion" defense. Cf.
Granberry v.
Greer, supra. They consequently disagree about whether this
is, or is not, the kind of case in which a federal court might rely
upon the existence of a state "procedural bar" despite the failure
of any state court to assert one. See
Coleman v.
Thompson, supra, at 735, n.
The parties also seem to disagree about which State's procedural
rules are relevant. Trest's federal claims focus upon the 35-year
sentence of imprisonment that the Louisiana court imposed (under a
Louisiana "habitual offender" law) in light of his earlier
convictions in Mississippi for burglary. Trest argued that those
earlier convictions were constitutionally invalid because they
rested upon a guilty plea which he says the Mississippi court
accepted without having first told him about his rights to appeal,
to trial by jury, to confront witnesses, and not to incriminate
himself. Cf.
Boykin v.
Alabama, 395 U. S. 238, 242-244
(1969);
State v.
Robicheaux, 412 So. 2d 1313,
1316-1317 (La. 1982). The Fifth Circuit did not reach the merits of
Trest's claims because it believed that the Mississippi courts
would have barred any challenge to his Mississippi convictions as a
challenge that, under state law, came too late in the day. See
Miss. Code Ann. § 99-39-5(2) (1994). Trest, and
amici
supporting him, state that the relevant procedural law (for the
purposes of the "procedural default" doctrine) is that of
Louisiana, rather than that of Mississippi, for it is Louisiana,
not Mississippi, which holds Trest in custody. And it is not clear
whether Mississippi's procedural law would create a "default" that
would bar federal courts from considering whether Louisi-
92
ana, not Mississippi, could (or could not) use Mississippi
convictions to enhance a sentence for a subsequent Louisiana
crime.
We note that the parties might have considered these questions,
and the Court of Appeals might have determined their relevance or
their answers, had that court not decided the procedural default
question without giving the parties an opportunity for argument. We
do not say that a court must always ask for further briefing when
it disposes of a case on a basis not previously argued. But often,
as here, that somewhat longer (and often fairer) way 'round is the
shortest way home. Regardless, we have answered the question
presented, we vacate the judgment of the Court of Appeals, and we
remand the case for further proceedings consistent with this
opinion.
It is so ordered.
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