Filing a Federal Habeas Despite No State Exhaustion?

It is important to understand, if one is navigating the state and federal courts on habeas relief, that even if the state courts have denied habeas relief on an independent and adequate procedural ground, a petitioner may sometimes still be able to pursue federal habeas relief.

This article will address five ways this can be done.

First, if the procedural problem can be corrected, the petitioner must try to solve the problem and get the state court to rule on the issues. Sweet v. Cupp (9th Cir. 1981) 640 F. 2d 233, 237-238.  For example, if the state court dismissed habeas claims for not being sufficiently specific, petitioner should file a new more detailed habeas petition in the state court. Kim v. Villalobos (9th Cir. 1986) 799 F. 2d 1317, 1319.

Second, some state court procedural problems, may seem uncurable.  For example, if a court of appeal refused to decide an evidentiary claim because no objection was made at trial, the issue has been forfeited and cannot be revived.  Similarly, if a state court denies a habeas petition as untimely because the petitioner waited too long to file it, there is nothing that can be done to correct the procedural problem.  However, if these default problems can be characterized as a habeas claim of ineffective assistance by trial, appellate, or post-conviction counsel – such as failure to raise a claim or failure to discover evidence – the procedural default might be excused by the federal court. Ha Van Nguyen v. Curry (9th Cir. 2013) 736 F. 3d 1287, 1291 (failure of appellate counsel to raise claim); Woods v. Sinclair (9th Cir. 2014) 764 F. 3d 1109, 1137 (failure to discover evidence).

Third, even if the procedural problem cannot be corrected, federal courts may grant relief from a state procedural default if the petitioner can show good cause for not complying with the state procedural rule and actual prejudice from the default.  For example, there may be good cause for relief if the procedural default was due to abandonment by counsel without notice, or a similar factor beyond the petitioner’s control. Maples v. Thomas (2012) 565 U.S. 266, 283-284, 132 S. Ct. 912, 924; 181 L. Ed. 2d 807; Edwards v. Carpenter (2000) 529 U.S.446, 451, 120 S. Ct. 1587; 146 L. Ed. 2d 518; Coleman v. Thompson (1991) 501 U.S. 722, 753, 111 S. Ct. 2546; 115 L. Ed. 2d 640; Wainwright v. Sykes (1977) 433 U.S. 72, 87, 97 S. Ct. 2497; 53 L. Ed. 2d 594; Strickler v. Greene (1999) 527 U.S. 263, 268, 119 S. Ct. 1936; 144 L. Ed. 2d 286 (good cause to excuse procedural default where prosecutor did not disclose exculpatory material); Murray v. Carrier (1986) 477 U.S. 478, 488, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (same); Manning v. Foster (9th Cir. 2000) 224 F. 3d 1129, 1133 (prison officials' interference with a petitioner's access to administrative remedies can be cause for a procedural default).

Fourth, federal courts may also excuse a procedural default where a state court generally requires people to raise an issue by state habeas corpus rather than on direct appeal, but does not guarantee appointment of counsel or effective assistance by counsel for the state habeas proceeding. Trevino v. Thaler (2013) 569 U.S. 413, 133 S. Ct. 1911, 1918; 185 L. Ed. 2d 1044 (where state procedures make it unlikely that defendant had a meaningful opportunity to raise ineffective assistance claim on direct appeal, there is good cause to excuse procedural default if the defendant had no counsel or counsel was ineffective during the state collateral review proceedings); Martinez v. Ryan (2012) 566 U.S. 1, 132 S. Ct. 1309; 182 L. Ed. 2d 272; Sexton v. Cozner (9th Cir. 2012) 679 F. 3d 1150, 1157; Lopez v. Ryan (9th Cir. 2012) 678 F. 3d 1131, 1137; Davila v. Davis (2017) 582 U.S. 521, 137 S. Ct. 2058, 2065; 198 L. Ed. 2d 603 (Martinez and Trevino rule excusing procedural default does not extend to procedurally defaulted claim of ineffective assistance of appellate counsel when petitioner’s state post-conviction counsel provides ineffective assistance by failing to raise that claim).

Lastly and fifth, a federal court may also address a procedurally defaulted claim if there is new evidence showing that the petitioner is actually innocent. Schlup v. Delo (1995) 513 U.S. 298, 314, 115 S. Ct. 851, 130 L. Ed. 2d 808 (new evidence showing innocence); Griffin v. Johnson (9th Cir. 2003) 350 F. 3d 956, 961 (newly presented evidence, as well as newly discovered evidence can be considered under Schlup); LaGrand v. Stewart (9th Cir. 1998) 133 F. 3d 1253, 1261 (procedural default will be set aside if petitioner can show actual prejudice).

Under this standard, petitioner must show it is more likely than not that no reasonable juror would have convicted the petitioner in light of the new evidence. Schlup, supra, at 333; House v. Bell (2006) 547 U.S. 518, 536, 126 S. Ct. 2064, 165 L. Ed. 2d 1.  

Before addressing a claim of actual innocence, a court must address any non-defaulted claims that might result in comparable relief. Dretke v. Haley (2004) 541 U.S. 386, 393, 124 S. Ct. 1847; 158 L. Ed. 2d 659.  Similarly, in death penalty cases, a federal court may address a procedurally defaulted claim if, “but for a constitutional error, no reasonable jury would have found the petitioner eligible for the death penalty.” Jenkins v. Hutton (2017) 582 U.S. __, 137 S. Ct. 1769, 1772; 198 L. Ed. 2d 415; citing Sawyer v. Whitley (1992) 505 U.S. 333, 336, 112 S. Ct. 2514, 120 L. Ed. 2d 269. It is possible to meet this standard with evidence that “casts a vast shadow of doubt” about the reliability of the state’s proof of guilt. Carriger v. Stewart (9th Cir. 1997) 132 F. 3d 463, 477.

However, even new evidence impeaching the prosecution’s witnesses does not necessarily require relief from procedural default if the federal court does not think that the new evidence would have changed the outcome of the trial. Smith v. Baldwin (9th Cir. 2007) 510 F. 3d 1127, 1139; Sistrunk v. Armenakis (9th Cir. 2002) 292 F. 3d 669, 673.  

While this article appears on our website, it would be dishonest to claim we deserve all the credit for the material presented.  The Prison Law Office, in Folsom, California, deserves the credit because the majority of the information presented in this article is from reading the Prison Law Office’s wonderful treatise, California Prison and Parole Law Handbook.