Federal Habeas – What if State Won’t Exhaust a Claim?

As the reader may be well aware, a person who wants to file a federal habeas petition must first exhaust state court judicial remedies. 

 

However, sometimes the state courts refuse to address legal issues because of procedural problems.  For example, a state court might find that an issue was forfeited by failure to object during the trial or sentencing or might find that an appeal or petition was not timely filed.  If a state court decides a case on “adequate and independent” state law procedural grounds, then state remedies have not been exhausted because the court has not ruled on the actual issues in the case. Powell v. Lambert (9th Cir. 2004) 357 F. 3d 871, 874.

The initial burden of asserting that an issue had been procedurally defaulted is on the state.  The burden then shifts to the petitioner to show why the state procedural grounds were not adequate and independent.  Ultimately, the state bears the burden of proving that an issue was procedurally defaulted. Bennett v. Mueller (9th Cir. 2002) 322 F. 3d 573, 586.

It is usually rather clear from the opinion if the state court denied relief on procedural grounds if the court plainly states a procedural reason, or if the court cites a law or controlling case authorizing denial for a procedural reason. Harris v. Reed (1989) 489 U.S. 255, 264, 109 S. Ct. 1038; 103 L. Ed. 2d 308; Nitschke v. Belleque (9th Cir. 2012) 680 F. 3d 1105, 1109; Kim v. Villalobos (9th Cir. 1986) 799 F. 2d 1317, 1320-1321; Harris v. Superior Court (9th Cir. 1974) 500 F. 2d 1124, 1128; Curiel v. Miller (9th Cir. 2016) 830 F. 3d 864, 870.

In other cases, it may not be clear whether a denial is on the merits or on procedural grounds.  For example, when the California Supreme Court denies a petition with a one-line order (called a “postcard denial”) that does not state the reason for denying the petition, the denial might be on either the merits or on procedural grounds. Evans v. Chavis (2006) 546 U.S. 189, 197-198, 126 S. Ct. 846; 163 L. Ed. 2d 684.

The federal courts have adopted some presumptions to handle these ambiguous denials. If the state Supreme Court states that it has considered the habeas petition and relief is not warranted, the fair interpretation is that the Court denied the claim on the merits. 

Chambers v. McDaniel (9th Cir. 2008) 549 F. 3d 1191, 1195-1199; see also Greene v. Lambert (9th Cir. 2002) 288 F. 3d 1081, 1087 (order could be characterized as denial on the merits even though it was curt and ambiguous).

If the last reasoned state court decision imposes a procedural default, it will be presumed that summary denials by the higher state courts also were based on the procedural bar (Ylst v. Nunnemaker (1991) 501 U.S. 797, 111 S. Ct. 2590; 115 L. Ed.2d 706), however, this presumption can be overcome by strong evidence that the last reasoned state court decision was based on the merits. Kernan v. Hinojosa (2016) 578 U.S. 412, 136 S. Ct. 1603; 194 L. Ed. 2d 701. 

Otherwise, unless a state court expressly states that it is relying on a procedural bar, the presumption is that the court is acting on the merits. Smith v. Oregon Bd. of Parole (9th Cir. 2013) 736 F. 3d 857, 859; Curiel v. Miller (9th Cir. 2016) 830 F. 3d 864, 871.  Also, when a state court rejects some claims on the merits but does not expressly address another claim raised by the petitioner, there is a rebuttable presumption that the other claim also was decided on the merits. Johnson v. Williams (2013) 568 U.S. 289, 133 S. Ct. 1088; 185 L. Ed. 2d 105.

However, not all types of state law procedural denials are sufficient to bar federal habeas relief.  A federal court may refuse to hear a claim only if the state courts have decided the issue on state law procedural grounds that are “adequate and independent.” Stewart v. Smith (2002) 536 U.S. 856, 858, 122 S. Ct. 2578; 153 L. Ed. 2d 762; Coleman v. Thompson (1991) 501 U.S. 722, 729, 111 S. Ct. 2546; 115 L. Ed. 2d 640; see, e.g., Carter v. Giurbino (9th Cir. 2004) 385 F. 3d 1194, 1197 (California rule that sufficiency of evidence claims cannot be considered unless raised on direct appeal is independent and adequate state procedural bar).  

To be “independent,” the state court's decision must be based on state law that is independent of federal law. Michigan v. Long (1983) 463 U.S. 1032, 1038, 103 S. Ct.3469; 77 L. Ed. 2d 1201.  

To be “adequate,” the procedural rule must be clearly and consistently applied by the state courts. Johnson v. Mississippi (1988) 486 U.S. 578, 587, 108 S. Ct. 1981; 100 L. Ed 2d 575; James v. Kentucky (1984) 466 U.S. 341, 348-349, 104 S. Ct. 1830; 80 L. Ed. 2d 346.  A state procedural rule can be adequate even if judges can exercise discretion to excuse a failure to comply with the rule. Beard v. Kindler (2009) 558 U.S. 53, 60, 130 S. Ct. 612; 175 L. Ed. 2d 417.

There can be disputes about which state procedural rules are “adequate.”  For example, the California doctrine that a person may not bring a habeas claim on an issue that was already considered on a direct appeal is not an adequate procedural ground, because the state courts sometimes make exceptions for cases involving fundamental constitutional rights. Hill v. Roe (9th Cir. 2003) 321 F. 3d 787, 789; Park v. California (9th Cir. 2000) 202 F. 3d 1146, 1151-1152; see also Powell v. Lambert (9th Cir. 2004) 357 F. 3d 871, 879 (courts may look outside of published case law to determine actual practice of state courts as to whether a procedural rule is clearly and consistently applied).

In contrast, the California rule that a person may not raise an issue for the first time in a state habeas petition if the issue could have been raised earlier on direct appeal (called the “Dixon” bar) is an “independent and adequate” state law procedural ground which bars federal habeas review. Johnson v. Lee (2016) 578 U.S. 605, 136 S. Ct. 1802; 195 L. Ed. 2d 92.  Likewise, California’s rule that a state habeas petition must be filed without substantial delay also constitutes an “independent and adequate” state law ground for denial of a habeas petition. Walker v. Martin (2011) 562 U.S. 307, 131 S. Ct. 1120; 179 L. Ed. 2d 62.

A person may be able to show that a claim was not defaulted if the state courts’ reason for denying the claim is clearly mistaken, even if there was some other possible procedural default that was not mentioned by the state court. Cone v. Bell (2009) 556 U.S. 449, 467, 129 S. Ct. 1769; 173 L. Ed. 2d 701.

If a federal court decides that a claim is procedurally barred, dismissal of the claim should be without prejudice to future re-filing, unless it is clear that the procedural problem cannot be remedied. Cassatt v. Stewart (9th Cir. 2005) 406 F. 3d 614, 624.

While this article may appear on our website, credit for this article is instead due in large part to the Prison Law Office in Folsom, California, and their invaluable treatise, California Prison and Parole Law Handbook, from which this article relies heavily.  We thank them.