In The

Supreme Court of the United States




Decided February 22, 1989

Justice O’Connor, Concurring

Topic: Criminal Procedure*Court vote: 8–1
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Joining O'Connor opinion: Chief Justice REHNQUIST Chief Justice REHNQUIST Justice SCALIA Justice SCALIA
Citation: 489 U.S. 255 Docket: 87–5677Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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I join the Court's opinion, and am in general agreement with its decision to apply the "plain statement" rule of Michigan v. Long, 463 U. S. 1032 (1983), to the state courts' invocation of state procedural default rules. I write separately to emphasize two points. First, I do not read the Court's opinion as addressing or altering the well-settled rule that the lower federal courts, and this Court, may properly inquire into the availability of state remedies in determining whether claims presented in a petition for federal habeas corpus have been properly exhausted in the state courts. See Humphrey v. Cady, 405 U. S. 504, 405 U. S. 515 -517 (1972); Ex parte Hawk, 321 U. S. 114, 321 U. S. 118 (1944).

In 28 U.S.C. § 2254(b), Congress has provided that a writ of habeas corpus

shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective processes or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

The exhaustion requirement is not satisfied if the habeas petitioner "has the right under the law of the State to raise, by any available procedure, the question presented." § 2254(c). Thus, in determining whether a remedy for a particular constitutional claim is "available," the federal courts are authorized, indeed required, to assess the likelihood that a state court will accord the habeas petitioner a hearing on the merits of his claim.

The rule requiring that a habeas petitioner exhaust available remedies in state court before seeking review of the same claims via federal habeas corpus serves two important interests. First, its roots lie in the respect which the federal courts owe to the procedures erected by the States to correct constitutional errors, and the confidence that state court judges take, and should be encouraged to take, their constitutional duties seriously. Second, the rule furthers the interest in the efficiency of federal habeas corpus by assuring that, in general, the factual and legal bases surrounding a petitioner's constitutional claim or claims will have been developed in a prior adjudication. See generally Rose v. Lundy, 455 U. S. 509, 455 U. S. 518 -519 (1982).

To protect these interests, we have held that, where a federal habeas petitioner raises a claim which has never been presented in any state forum, a federal court may properly determine whether the claim has been procedurally defaulted under state law, such that a remedy in state court is "unavailable" within the meaning of § 2254(c). See Engle v. Isaac, 456 U. S. 107, 456 U. S. 125 -126, n. 28 (1982). The lower courts have consistently looked to state procedural default rules in making the "availability" determination, both before and after our decision in Engle. See, e.g., Watson v. Alabama, 841 F.2d 1074, 1077, n. 6 (CA11), cert. denied, 488 U.S. 864 (1988); Leroy v. Marshall, 757 F.2d 94, 97 (CA6), cert. denied, 474 U.S. 831 (1985); Wayne v. White, 735 F.2d 324, 325 (CA8 1984); Williams v. Duckworth, 724 F.2d 1439, 1442 (CA7), cert. denied, 469 U.S. 841 (1984); Richardson v. Turner, 716 F.2d 1059, 1061-1062 (CA4 1983); Beaty v. Patton, 700 F.2d 110, 112 (CA3 1983); Jackson v. Cupp, 693 F.2d 867, 869 (CA9 1982); Matias v. Oshiro, 683 F.2d 318, 319-321 (CA9 1982); Keener v. Ridenour, 594 F.2d 581, 584 (CA6 1979); Smith v. Estelle, 562 F.2d 1006, 1007-1008 (CA5 1977); United States ex rel. Williams v. Brantley, 502 F.2d 1383, 1385-1386 (CA7 1974). Indeed, we have reaffirmed and applied the rule of Engle in Teague v. Lane, post at 489 U. S. 297 -298.

A contrary rule would make no sense. It would require a "plain statement" indicating state reliance on a procedural bar where no state court was ever given the opportunity to pass on either the procedural posture or the merits of the constitutional claim. Moreover, dismissing such petitions for failure to exhaust state court remedies would often result in a game of judicial ping-pong between the state and federal courts, as the state prisoner returned to state court only to have the state procedural bar invoked against him. See Fay v. Noia, 372 U. S. 391, 372 U. S. 435 (1963); United States ex rel Williams v. Brantley, supra, at 1385-1386 ("We refuse to contribute further needless and delaying requirements to a procedure that already often results in shuttling prisoners back and forth between the state and federal courts before any decision on the merits is ever reached"). Finally, such a rule would create an incentive to proceed immediately to federal court, bypassing state postconviction remedies entirely in the hope that the lack of a state court decision as to the applicability of the State's procedural bar would be treated as "ambiguity." Such a result would not only run counter to the decisions of this Court, see Rose, supra, at 455 U. S. 518 -519, but would also frustrate the congressional purpose embodied in § 2254.

In sum, it is simply impossible to "[r]equir[e] a state court to be explicit in its reliance on a procedural default," ante at 489 U. S. 264, where a claim raised on federal habeas has never been presented to the state courts at all. In such a context, federal courts quite properly look to and apply state procedural default rules in making the congressionally mandated determination whether adequate remedies are available in state court.

My second concern stems from the majority's references to our decisions in Murray v. Carrier, 477 U. S. 478 (1986), and Smith v. Murray, 477 U. S. 527 (1986). In these decisions, the Court reaffirmed the holding of Wainwright v. Sykes, 433 U. S. 72, 433 U. S. 90 -91 (1977), that a state prisoner pursuing federal habeas remedies must show both "cause" for a procedural default and "prejudice" flowing from the alleged constitutional violation for a federal court to entertain his claim on the merits despite the existence of an otherwise preclusive state law ground for decision. In Murray v. Carrier, the Court rejected

a reworking of the cause and prejudice test... to dispense with the requirement that the petitioner show cause and instead to focus exclusively on whether there has been a 'manifest injustice' or a denial of 'fundamental fairness.'

477 U.S. at 477 U. S. 493. The Court went on to indicate that:

We remain confident that, for the most part, 'victims of a fundamental miscarriage of justice will meet the cause-and-prejudice standard.' But we do not pretend that this will always be true. Accordingly, we think that, in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.

Id. at 477 U. S. 495 -496 (citation omitted).

At several points in its opinion, the Court refers to a "miscarriage of justice" test to be applied in conjunction with the cause and prejudice inquiry. See ante at 489 U. S. 258, and n. 2; ante at 489 U. S. 259, n. 3; ante at 489 U. S. 262. I do not read the Court's opinion as suggesting any alteration of the relationship between the cause and prejudice inquiry and the narrow exception to the cause requirement where a petitioner cannot show cause but can make a strong showing of probable factual innocence. See Smith, supra, at 477 U. S. 538 -539 ("We similarly reject the suggestion that there is anything fundamentally unfair' about enforcing procedural default rules in cases devoid of any substantial claim that the alleged error undermined the accuracy of the guilt or sentencing determination"). The operative test is cause and prejudice; there is a kind of "safety valve" for the "extraordinary case" where a substantial claim of factual innocence is precluded by an inability to show cause. With this understanding, I join the Court's opinion.

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