Skip navigation
The Habeas Citebook Ineffective Counsel - Header
× You have 2 more free articles available this month. Subscribe today.

Fifth Circuit: New, Retroactive Supreme Court Decision Allowing SOS Habeas Petition Not New Enough to Avoid Procedural-Default Bar

by Dale Chappell

In a decision that further narrows the federal habeas corpus remedy, a divided panel of the U.S. Court of Appeals for the Fifth Circuit held that a claim under a new, retroactive U.S. Supreme Court ruling to allow a second or successive (“SOS”) habeas petition was not a new enough claim to avoid the procedural-default bar.

When the Supreme Court declared the “residual clause” of the Armed Career Criminal Act (“ACCA”) unconstitutional in Johnson v. United States, 576 U.S. 591 (2015), Jose Vargas-Soto requested authorization to file a SOS motion under 28 U.S.C. § 2255 to vacate his enhanced sentence based on a prior “crime of violence” that he claimed fell under the similar residual clause of the illegal re-entry statute, as defined in 18 U.S.C. § 16(b). That request was denied, but when the Supreme Court later extended Johnson to the residual clause in the illegal re-entry statute in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), his second request was granted. He then filed his approved § 2255 motion in the district court.

That motion, however, was eventually denied, the court holding that Vargas-Soto’s prior conviction for manslaughter during an “intoxicated assault” qualified under the elements clause, not the unconstitutional residual clause, so his 15-year sentence was legally sound. While Vargas-Soto’s appeal of that denial was pending, the Supreme Court held that a prior conviction that has only a mens rea of recklessness, which Vargas-Soto’s manslaughter conviction had, isn’t a valid predicate under the elements clause. Borden v. United States, 141 S. Ct. 1817 (2021). That left Vargas-Soto’s manslaughter prior under the defunct residual clause.

The Claim Wasn’t Barred by the AEDPA

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) added a res judicata bar to federal habeas corpus in 1996: “A Claim presented in a [SOS] habeas application under sec 2254 that was presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1). The Fifth Circuit reiterated that it routinely applies this claim preclusion rule to federal prisoners under § 2255 because the Supreme Court has held the bar is jurisdictional. See Panetti v. Quarterman, 551 U.S. 930 (2007).

The Court found that Vargas-Soto’s claim in his second request for authorization was the same kind of claim as his first, viz., a void-for-vagueness claim. Whether the claim cited Johnson, Dimaya, or United States v. Davis, 139 S. Ct. 2319 (2019), is irrelevant because there is just one claim based on void-for-vagueness ground, the Court explained. See United States v. Castro, 30 F.4th 240 (5th Cir. 2022) (instructing that a Johnson claim is the same as a Davis claim because both are “based on the same ground,” i.e., void-for-vagueness). 

However, the res judicata bar applies only to claims filed in a SOS “motion,” the Court said, and a request for authorization to file a SOS habeas motion is only a request and not itself a motion. Vargas-Soto filed the same claim in his failed request for authorization, the Court noted, and “that means he never actually filed the underlying motion.” As a result, he was not prohibited from filing by the res judicata bar.

Dimaya Is a New, Retroactive Supreme Court Ruling for a SOS Motion

For a Court of Appeals to authorize a SOS habeas petition or motion based on a new Supreme Court decision, the following narrow criteria must be met: “A new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” § 2255(h)(2). The Court found Dimaya met these criteria. First, Dimaya is “new” because it wasn’t dictated by precedent, the Court said. “Vargas-Soto’s conviction became final in 2011. At that point, neither Johnson nor Dimaya had been decided. If Dimaya wasn’t dictated by precedent after Johnson it certainly wasn’t when Vargas-Soto’s conviction became final. In short, Dimaya announced a new rule of constitutional law,” explained the Court.

Second, the Supreme Court can make its ruling retroactive by expressly saying so or by the Supreme Court’s holdings in multiple cases that together dictate retroactivity. Tyler v. Cain, 533 U.S. 656 (2001). The Supreme Court didn’t expressly say Dimaya is retroactive, but the combined holdings of four Supreme Court cases “necessarily dictate retroactivity” of Dimaya, the Court stated. See Schriro v. Summerlin, 542 U.S. 348 (2004); Johnson; Welch v. United States, 578 U.S. 120 (2016); Dimaya.

Third, Dimaya was previously unavailable. “Vargas-Soto’s last proceeding before the instant sec 2255 motion was a request for authorization to file a successive sec 2255 motion after Johnson ... but before Dimaya. Because Dimaya announced a new rule even after Johnson, the claim was previously unavailable to Vargas-Soto,” the Court said.

The Claim Was Filed on Time

The AEDPA also imposes a strict one-year time limit for a habeas petition or motion. Under § 2255(f)(3), which governs first and SOS motions, a petitioner has one year from the date of the new decision. Because Vargas-Soto’s void-for-vagueness claim had its roots in Johnson, the Court clarified that Dimaya did not restart the clock. Instead, it’s the “right” recognized by the Supreme Court that matters, not the case relied upon, and the “right” in Vargas-Soto’s case was recognized in Johnson.

The Court also counted Vargas-Soto’s denied request for authorization as the filing that stopped the AEDPA clock since it was the Court’s fault in dismissing it, which caused him to have to file again.

A Habeas Petitioner Must Also Clear the Procedural-Default Bar

The hurdle to file a SOS petition was just one obstacle for Vargas-Soto. He also had to get around the procedural-default bar, the Court said. A federal habeas claim is “procedurally-defaulted” if it could have been raised earlier but wasn’t. United States v. Frady, 456 U.S. 152 (1982). There are two exceptions to this rule: (1) showing “cause” for the default and resulting prejudice if the claim isn’t heard, or (2) showing actual innocence. Gonzales v. Davis, 924 F.3d 236 (5th Cir. 2019). Vargas-Soto couldn’t show “actual innocence” with respect to his enhanced sentence, so the focus of the Court was on whether he could show cause to excuse the default.

To show cause, a petitioner “must show that some objective factor external to the defense impeded counsel’s efforts to comply with the relevant procedural rule.” Davila v. Davis, 137 S. Ct. 2058 (2017). The Supreme Court has held that a “novel” constitutional claim can show cause. See Reed v. Ross, 468 U.S. 1 (1984). The Court defined this as a Supreme Court decision that explicitly overrules one of its decisions, overturns a longstanding and widespread practice by the lower courts, or disapproves a practice that the Supreme Court had approved in prior cases. Id.

While most circuits have cited Reed and held that void-for-vagueness claims after Johnson were novel to avoid the procedural-default bar, the Fifth Circuit concluded that Reed was no longer good law after the AEDPA. Even if it were still valid, the Court said that Reed’s novel claim criteria were only dicta or not the holding of the Reed Court and therefore not binding on the lower courts.

The Court also dismissed the argument that futility could provide cause to excuse procedural-default. It explained: “Defense counsel routinely raise arguments to preserve them for further review despite binding authority to the contrary. ... This entire enterprise would be pointless if futility constituted cause. And it would create a system of litigation freeriding, under which prisoners who do not make arguments get a free ride from those who do.” (internal citations omitted)

Circuit Judge W. Eugene Davis dissented, saying that requiring defendants to raise frivolous claims just to preserve them for a future, retroactive constitutional ruling by the Supreme Court “defies logic.” “When the Supreme Court forecloses a constitutional claim, every court in the nation, including the High Court, is bound to reject it.” He also added this final view:

“The majority opinion stands in direct contradiction to Supreme Court authority and unanimous circuit authority. In my view, Vargas-Soto has established cause for his procedural default and has demonstrated that he is entitled to § 2255 relief. The majority avoids this obvious result by obscuring or misreading applicable authority. It achieves an injustice in this case, and many future cases, despite clear Supreme Court guidance. Therefore, I respectfully dissent.”

The majority of the panel nevertheless found that Vargas-Soto’s void-for-vagueness claim was procedurally-defaulted and affirmed the denial of habeas relief. See: United States v. Vargas-Soto, 35 F.4th 979 (5th Cir. 2022). 

As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal cases

United States v. Vargas-Soto

United States v. Castro

Panetti v. Quarterman

SUPREME COURT OF THE UNITED STATES
550 U.S. 930; 127 S.Ct. 2842; 168 L.Ed.2d 662

SCOTT LOUIS PANETTI, PETITIONER v. NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

No. 06-6407

April 18, 2007, Argued

June 28, 2007, Decided

NOTICE: [*1] The LEXIS pagination of this document is subject to change pending release of the final published version.

PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.

DISPOSITION: 448 F.3d 815, reversed and remanded.

SYLLABUS:

Petitioner was convicted of capital murder in a Texas state court and sentenced to death despite his well-documented history of mental illness. After the Texas courts denied relief on direct appeal, petitioner filed a federal habeas petition pursuant to 28 U.S.C. § 2254, but the District Court and the Fifth Circuit rejected his claims, and this Court denied certiorari. In the course of these initial state and federal proceedings, petitioner did not argue that mental illness rendered him incompetent to be executed. Once the state trial court set an execution date, petitioner filed a motion under Texas [*2] law claiming, for the first time, that he was incompetent to be executed because of mental illness. The trial judge denied the motion without a hearing and the Texas Court of Criminal Appeals dismissed petitioner's appeal for lack of jurisdiction.

He then filed another federal habeas petition under § 2254, and the District Court stayed his execution to allow the state trial court time to consider evidence of his then-current mental state. Once the state court began its adjudication, petitioner submitted 10 motions in which he requested, inter alia, a competency hearing and funds for a mental health expert. The court indicated it would rule on the outstanding motions once it had received the report written by the experts that it had appointed to review petitioner's mental condition. The experts subsequently filed this report, which concluded, inter alia, that petitioner had the ability to understand the reason he was to be executed. Without ruling on the outstanding motions, the judge found petitioner competent and closed the case. Petitioner then returned to the Federal District Court, seeking a resolution of his pending § 2254 petition. The District Court concluded [*3] that the state-court competency proceedings failed to comply with Texas law and were constitutionally inadequate in light of the procedural requirements mandated by Ford v. Wainwright, 477 U.S. 399, 410, where this Court held that the Eighth Amendment prohibits States from inflicting the death penalty upon insane prisoners. Although the court therefore reviewed petitioner's incompetency claim without deferring to the state court's finding of competency, it nevertheless granted no relief, finding that petitioner had not demonstrated that he met the standard for incompetency. Under Fifth Circuit precedent, the court explained, petitioner was competent to be executed so long as he knew the fact of his impending execution and the factual predicate for it. The Fifth Circuit affirmed.

Held:

1. This Court has statutory authority to adjudicate the claims raised in petitioner's second federal habeas application. Because § 2244(b)(2) requires that "[a] claim presented in a second or successive . . . [§ 2254] application . . . that was not presented in a prior application . . . be dismissed," the State maintains that the failure of petitioner's first § [*4] 2254 application to raise a Ford-based incompetency claim deprived the District Court of jurisdiction. The results this argument would produce show its flaws. Were the State's interpretation of "second or successive" correct, a prisoner would have two options: forgo the opportunity to raise a Ford claim in federal court; or raise the claim in a first federal habeas application even though it is premature. Stewart v. Martinez-Villareal, 523 U.S. 637, 644. The dilemma would apply not only to prisoners with mental conditions that, at the time of the initial habeas filing, were indicative of incompetency but also to all other prisoners, including those with no early sign of mental illness. Because all prisoners are at risk of deteriorations in their mental state, conscientious defense attorneys would be obliged to file unripe (and, in many cases, meritless) Ford claims in each and every § 2254 application. This counterintuitive approach would add to the burden imposed on courts, applicants, and the States, with no clear advantage to any. The more reasonable interpretation of § 2244, suggested by this Court's precedents, is that Congress did not intend the [*5] provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) addressing "second or successive" habeas petitions to govern a filing in the unusual posture presented here: a § 2254 application raising a Ford-based incompetency claim filed as soon as that claim is ripe. See, e.g., Martinez-Villareal, supra, at 643-645. This conclusion is confirmed by AEDPA's purposes of "furthering comity, finality, and federalism," Miller-El v. Cockrell, 537 U.S. 322, 337, "promoting judicial efficiency and conservation of judicial resources, . . . and lending finality to state court judgments within a reasonable time," Day v. McDonough, 547 U.S. 198, 205-206. These purposes, and the practical effects of the Court's holdings, should be considered when interpreting AEDPA, particularly where, as here, petitioners "run the risk" under the proposed interpretation of "forever losing their opportunity for any federal review of their unexhausted claims," Rhines v. Weber, 544 U.S. 269, 275. There is, finally, no argument in this case that petitioner proceeded in a manner that could be considered an abuse of [*6] the writ. Cf. Felker v. Turpin, 518 U.S. 651, 664. To the contrary, the Court has suggested that it is generally appropriate for a prisoner to wait before seeking the resolution of unripe incompetency claims. See, e.g., Martinez-Villareal, supra, at 644-645. Pp. 9-15.

2. The state court failed to provide the procedures to which petitioner was entitled under the Constitution. Ford identifies the measures a State must provide when a prisoner alleges incompetency to be executed. Justice Powell's opinion concurring in part and concurring in the judgment in Ford controls, see Marks v. United States, 430 U.S. 188, 193, and constitutes "clearly established" governing law for AEDPA purposes, § 2254(d)(1). As Justice Powell elaborated, once a prisoner seeking a stay of execution has made "a substantial threshold showing of insanity," 477 U.S., at 424, the Eighth and Fourteenth Amendments entitle him to, inter alia, a fair hearing, ibid., including an opportunity to submit "expert psychiatric evidence that may differ from the State's own psychiatric examination," id., at 427. The procedures [*7] the state court provided petitioner were so deficient that they cannot be reconciled with any reasonable interpretation of the Ford rule. It is uncontested that petitioner made a substantial showing of incompetency. It is also evident from the record, however, that the state court reached its competency determination without holding a hearing or providing petitioner with an adequate opportunity to provide his own expert evidence. Moreover, there is a strong argument that the court violated state law by failing to provide a competency hearing. If so, the violation undermines any reliance the State might now place on Justice Powell's assertion that "the States should have substantial leeway to determine what process best balances the various interests at stake." Id., at 427. Under AEDPA, a federal court may grant habeas relief, as relevant, only if a state court's "adjudication of [a] claim on the merits . . . resulted in a decision that . . . involved an unreasonable application" of the relevant federal law. § 2254(d)(1). If the state court's adjudication is dependent on an antecedent unreasonable application of federal law, that requirement is satisfied, and [*8] the federal court must then resolve the claim without the deference AEDPA otherwise requires. See, e.g., Wiggins v. Smith, 539 U.S. 510, 534. Having determined that the state court unreasonably applied Ford when it accorded petitioner the procedures in question, this Court must now consider petitioner's claim on the merits without deferring to the state court's competency finding. Pp. 15-21.

3. The Fifth Circuit employed an improperly restrictive test when it considered petitioner's claim of incompetency on the merits. Pp. 21-28.

(a) The Fifth Circuit's incompetency standard is too restrictive to afford a prisoner Eighth Amendment protections. Petitioner's experts in the District Court concluded that, although he claims to understand that the State says it wants to execute him for murder, his mental problems have resulted in the delusion that the stated reason is a sham, and that the State actually wants to execute him to stop him from preaching. The Fifth Circuit held, based on its earlier decisions, that such delusions are simply not relevant to whether a prisoner can be executed so long as he is aware that the State has identified the link [*9] between his crime and the punishment to be inflicted. This test ignores the possibility that even if such awareness exists, gross delusions stemming from a severe mental disorder may put that awareness in a context so far removed from reality that the punishment can serve no proper purpose. It is also inconsistent with Ford, for none of the principles set forth therein is in accord with the Fifth Circuit's rule. Although the Ford opinions did not set forth a precise competency standard, the Court did reach the express conclusion that the Constitution "places a substantive restriction on the State's power to take the life of an insane prisoner," 477 U.S., at 405, because, inter alia, such an execution serves no retributive purpose, id., at 408. It might be said that capital punishment is imposed because it has the potential to make the offender recognize at last the gravity of his crime and to allow the community as a whole, including the victim's surviving family and friends, to affirm its own judgment that the prisoner's culpability is so serious that the ultimate penalty must be sought and imposed. Both the potential for this recognition [*10] and the objective of community vindication are called into question, however, if the prisoner's only awareness of the link between the crime and the punishment is so distorted by mental illness that his awareness of the crime and punishment has little or no relation to the understanding shared by the community as a whole. A prisoner's awareness of the State's rationale for an execution is not the same as a rational understanding of it. Ford does not foreclose inquiry into the latter. To refuse to consider evidence of this nature is to mistake Ford's holding and its logic. Pp. 21-28.

(b) Although the Court rejects the Fifth Circuit's standard, it does not attempt to set down a rule governing all competency determinations. The record is not as informative as it might be because it was developed by the District Court under the rejected standard, and, thus, this Court finds it difficult to amplify its conclusions or to make them more precise. It is proper to allow the court charged with overseeing the development of the evidentiary record the initial opportunity to resolve petitioner's constitutional claim. Pp. 28-30.

448 F.3d 815, reversed and remanded. [*11]

JUDGES: KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA and ALITO, JJ., joined.

OPINION: JUSTICE KENNEDY delivered the opinion of the Court.

"The Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane." Ford v. Wainwright, 477 U.S. 399, 409-410 (1986). The prohibition applies despite a prisoner's earlier competency to be held responsible for committing a crime and to be tried for it. Prior findings of competency do not foreclose a prisoner from proving he is incompetent to be executed because of his present mental condition. Under Ford, once a prisoner makes the requisite preliminary showing that his current mental state would bar his execution, the Eighth Amendment, applicable to the States under the Due Process Clause of the Fourteenth Amendment, entitles him to an adjudication to determine his condition. These determinations are governed by the substantive federal baseline for competency set down in Ford.

Scott Louis Panetti, referred to here as petitioner, was [*12] convicted and sentenced to death in a Texas state court. After the state trial court set an execution date, petitioner made a substantial showing he was not competent to be executed. The state court rejected his claim of incompetency on the merits. Filing a petition for writ of habeas corpus in the United States District Court for the Western District of Texas, petitioner claimed again that his mental condition barred his execution; that the Eighth Amendment set forth a substantive standard for competency different from the one advanced by the State; and that prior state-court proceedings on the issue were insufficient to satisfy the procedural requirements mandated by Ford. The State denied these assertions and argued, in addition, that the federal courts lacked jurisdiction to hear petitioner's claims.

We conclude we have statutory authority to adjudicate the claims petitioner raises in his habeas application; we find the state court failed to provide the procedures to which petitioner was entitled under the Constitution; and we determine that the federal appellate court employed an improperly restrictive test when it considered petitioner's claim of incompetency on the merits. [*13] We therefore reverse the judgment of the Court of Appeals for the Fifth Circuit and remand the case for further consideration.

I

On a morning in 1992 petitioner awoke before dawn, dressed in camouflage, and drove to the home of his estranged wife's parents. Breaking the front-door lock, he entered the house and, in front of his wife and daughter, shot and killed his wife's mother and father. He took his wife and daughter hostage for the night before surrendering to police.

Tried for capital murder in 1995, petitioner sought to represent himself. The court ordered a psychiatric evaluation, which indicated that petitioner suffered from a fragmented personality, delusions, and hallucinations. 1 App. 9-14. The evaluation noted that petitioner had been hospitalized numerous times for these disorders. Id., at 10; see also id., at 222. Evidence later revealed that doctors had prescribed medication for petitioner's mental disorders that, in the opinion of one expert, would be difficult for a person not suffering from extreme psychosis even to tolerate. See id., at 233 ("I can't imagine anybody getting that dose waking up for two to three days. You cannot take that kind of medication [*14] if you are close to normal without absolutely being put out"). Petitioner's wife described one psychotic episode in a petition she filed in 1986 seeking extraordinary relief from the Texas state courts. See id., at 38-40. She explained that petitioner had become convinced the devil had possessed their home and that, in an effort to cleanse their surroundings, petitioner had buried a number of valuables next to the house and engaged in other rituals. Id., at 39. Petitioner nevertheless was found competent to be tried and to waive counsel. At trial he claimed he was not guilty by reason of insanity.

During his trial petitioner engaged in behavior later described by his standby counsel as "bizarre," "scary," and "trance-like." Id., at 26, 21, 22. According to the attorney, petitioner's behavior both in private and in front of the jury made it evident that he was suffering from "mental incompetence," id., at 26; see also id., at 22-23, and the net effect of this dynamic was to render the trial "truly a judicial farce, and a mockery of self-representation," id., at 2

Schriro v. Summerlin

SUPREME COURT OF THE UNITED STATES
542 U.S. 348; 124 S.Ct. 2519; 159 L.Ed.2d 442

DORA B. SCHRIRO, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS, PETITIONER v. WARREN WESLEY SUMMERLIN

No. 03-526

April 19, 2004, Argued

June 24, 2004, Decided

NOTICE: [*1] This preliminary LEXIS version is unedited and subject to revision.

PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

DISPOSITION: 341 F.3d 1082, reversed and remanded.

SYLLABUS:

Respondent was convicted of first-degree murder and sentenced to death under Arizona's capital sentencing scheme then in effect, which authorized the trial judge, rather than the jury, to determine the presence of aggravating circumstances that make the defendant eligible for the death sentence. The State Supreme Court affirmed on direct review. While respondent's subsequent federal habeas case was pending in the Ninth Circuit, this Court decided that Apprendi v. New Jersey, 530 U.S. 466, 490, required the existence of an aggravating factor to be proved to a jury rather than a judge under Arizona's scheme. [*2] Ring v. Arizona, 536 U.S. 584, 603-609. The Ninth Circuit invalidated respondent's death sentence, rejecting the argument that Ring did not apply because respondent's conviction and sentence had become final on direct review before Ring was decided.

Held: Ring does not apply retroactively to cases already final on direct review. Pp. 3-10.

(a) A "new rule" resulting from a decision of this Court applies to convictions that are already final only in limited circumstances. New substantive rules generally apply retroactively, but new procedural rules generally do not -- only "'watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding" are given retroactive effect. Saffle v. Parks, 494 U.S. 484, 495. Such a rule must be one "without which the likelihood of an accurate conviction is seriously diminished." Teague v. Lane, 489 U.S. 288, 313. Pp. 3-4.

(b) Ring's holding is properly classified as procedural. It did not alter the range of conduct or the class of persons subject to the death penalty in Arizona, but only the method of determining [*3] whether the defendant engaged in that conduct. Pp. 4-6.

(c) Ring did not announce a watershed rule of criminal procedure. This Court cannot confidently say that judicial factfinding seriously diminishes accuracy. Pp. 7-10.

341 F.3d 1082, reversed and remanded.

JUDGES: SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

OPINION: JUSTICE SCALIA delivered the opinion of the Court.

In this case, we decide whether Ring v. Arizona, 536 U.S. 584 (2002), applies retroactively to cases already final on direct review.

I

In April 1981, Finance America employee Brenna Bailey disappeared while on a house call to discuss an outstanding debt with respondent Warren Summerlin's wife. That evening, an anonymous woman (later identified as respondent's mother-in-law) called the police and accused respondent of murdering Bailey. Bailey's partially nude body, her skull crushed, was found the next morning in the trunk of her car, wrapped in a bedspread from respondent's home. Police arrested [*4] respondent and later overheard him make incriminating remarks to his wife.

Respondent was convicted of first-degree murder and sexual assault. Arizona's capital sentencing provisions in effect at the time authorized the death penalty if one of several enumerated aggravating factors was present. See Ariz. Rev. Stat. Ann. §§ 13-703(E), (F) (West 1978), as amended by Act of May 1, 1979 Ariz. Sess. Laws ch. 144. Whether those aggravating factors existed, however, was determined by the trial judge rather than by a jury. § 13-703(B). In this case the judge, after a hearing, found two aggravating factors: a prior felony conviction involving use or threatened use of violence, § 13-703(F)(2), and commission of the offense in an especially heinous, cruel, or depraved manner, § 13-703(F)(6). Finding no mitigating factors, the judge imposed the death sentence. The Arizona Supreme Court affirmed on direct review. State v. Summerlin, 138 Ariz. 426, 675 P.2d 686 (1983).

Protracted state and federal habeas proceedings followed. While respondent's case was pending in the Ninth Circuit, we decided Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, supra. [*5] In Apprendi, we interpreted the constitutional due-process and jury-trial guarantees to require that, "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S., at 490. In Ring, we applied this principle to a death sentence imposed under the Arizona sentencing scheme at issue here. We concluded that, because Arizona law authorized the death penalty only if an aggravating factor was present, Apprendi required the existence of such a factor to be proved to a jury rather than to a judge. 536 U.S., at 603-609. n1 We specifically overruled our earlier decision in Walton v. Arizona, 497 U.S. 639 (1990), which had upheld an Arizona death sentence against a similar challenge. 536 U.S., at 609.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n1 Because Arizona law already required aggravating factors to be proved beyond a reasonable doubt, see State v. Jordan, 126 Ariz. 283, 286, 614 P.2d 825, 828, cert. denied, 449 U.S. 986 (1980), that aspect of Apprendi was not at issue.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*6]

The Ninth Circuit, relying on Ring, invalidated respondent's death sentence. Summerlin v. Stewart, 341 F.3d 1082, 1121 (2003) (en banc). n2 It rejected the argument that Ring did not apply because respondent's conviction and sentence had become final on direct review before Ring was decided. We granted certiorari. 540 U.S. 1045 (2003). n3

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n2 Because respondent filed his habeas petition before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214, the provisions of that Act do not apply. See Lindh v. Murphy, 521 U.S. 320, 336-337 (1997).


n3 The State also sought certiorari on the ground that there was no Apprendi violation because the prior-conviction aggravator, exempt from Apprendi under Almendarez-Torres v. United States, 523 U.S. 224 (1998), was sufficient standing alone to authorize the death penalty. We denied certiorari on that issue, 540 U.S. 1045 (2003), and express no opinion on it.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*7]

II

When a decision of this Court results in a "new rule," that rule applies to all criminal cases still pending on direct review. Griffith v. Kentucky, 479 U.S. 314, 328 (1987). As to convictions that are already final, however, the rule applies only in limited circumstances. New substantive rules generally apply retroactively. This includes decisions that narrow the scope of a criminal statute by interpreting its terms, see Bousley v. United States, 523 U.S. 614, 620-621 (1998), as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish, see Saffle v. Parks, 494 U.S. 484, 494-495 (1990); Teague v. Lane, 489 U.S. 288, 311 (1989) (plurality opinion). n4 Such rules apply retroactively because they "necessarily carry a significant risk that a defendant stands convicted of 'an act that the law does not make criminal'" or faces a punishment that the law cannot impose upon him. Bousley, supra, at 620 (quoting Davis v. United States, 417 U.S. 333, 346 (1974)).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n4 We have sometimes referred to rules of this latter type as falling under an exception to Teague's bar on retroactive application of procedural rules, see, e.g., Horn v. Banks, 536 U.S. 266, 271, and n. 5 (2002) (per curiam); they are more accurately characterized as substantive rules not subject to the bar.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*8]

New rules of procedure, on the other hand, generally do not apply retroactively. They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise. Because of this more speculative connection to innocence, we give retroactive effect to only a small set of "'watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Saffle, supra, at 495 (quoting Teague, 489 U.S., at 311). That a new procedural rule is "fundamental" in some abstract sense is not enough; the rule must be one "without which the likelihood of an accurate conviction is seriously diminished." Id., at 313 (emphasis added). This class of rules is extremely narrow, and "it is unlikely that any . . . 'has yet to emerge.'" Tyler v. Cain, 533 U.S. 656, 667, n. 7 (2001) (quoting Sawyer v. Smith, 497 U.S. 227, 243 (1990)).

The Ninth Circuit agreed with the State that Ring announced a new rule. 341 F.3d at 1108-1109. [*9] It nevertheless applied the rule retroactively to respondent's case, relying on two alternative theories: first, that it was substantive rather than procedural; and second, that it was a "watershed" procedural rule entitled to retroactive effect. We consider each theory in turn.

A

A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes. See Bousley, supra, at 620-621 (rule "holds that a . . . statute does not reach certain conduct" or "makes conduct criminal"); Saffle, supra, at 495 (rule "decriminalizes a class of conduct [or] prohibits the imposition of . . . punishment on a particular class of persons"). In contrast, rules that regulate only the manner of determining the defendant's culpability are procedural. See Bousley, supra, at 620.

Judged by this standard, Ring's holding is properly classified as procedural. Ring held that "a sentencing judge, sitting without a jury, [may not] find an aggravating circumstance necessary for imposition of the death penalty." 536 U.S., at 609. Rather, "the Sixth Amendment requires that [those [*10] circumstances] be found by a jury." Ibid. This holding did not alter the range of conduct Arizona law subjected to the death penalty. It could not have; it rested entirely on the Sixth Amendment's jury-trial guarantee, a provision that has nothing to do with the range of conduct a State may criminalize. Instead, Ring altered the range of permissible methods for determining whether a defendant's conduct is punishable by death, requiring that a jury rather than a judge find the essential facts bearing on punishment. Rules that allocate decisionmaking authority in this fashion are prototypical procedural rules, a conclusion we have reached in numerous other contexts. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 426 (1996) (Erie doctrine); Landgraf v. USI Film Products, 511 U.S. 244, 280-281 (1994) (antiretroactivity presumption); Dobbert v. Florida, 432 U.S. 282, 293-294 (1977) (Ex Post Facto Clause).

Respondent nevertheless argues that Ring is substantive because it modified the elements of the offense for which he was convicted. He relies on our statement in Ring that, "because Arizona's [*11] enumerated aggravating factors operate as 'the functional equivalent of an element of a greater offense,' the Sixth Amendment requires that they be found by a jury. " 536 U.S., at 609 (citation omitted); see also Sattazahn v. Pennsylvania, 537 U.S. 101, 111 (2003) (plurality opinion). The Ninth Circuit agreed, concluding that Ring "repositioned Arizona's aggravating factors as elements of the separate offense of capital murder and reshaped the structure of Arizona murder law." 341 F.3d at 1105.

A decision that modifies the elements of an offense is normally substantive rather than procedural. New elements alter the range of conduct the statute punishes, rendering some formerly unlawful conduct lawful or vice versa. See Bousley, 523 U.S., at 620-621. But that is not what Ring did; the range of conduct punished by death in Arizona was the same before Ring as after. Ring held that, because Arizona's statutory aggravators restricted (as a matter of state law) the class of death-eligible defendants, those aggravators effectively were elements for federal constitutional purposes, and so were subject [*12] to the procedural requirements the Constitution attaches to trial of elements. 536 U.S., at 609. This Court's holding that, because Arizona has made a certain fact essential to the death penalty, that fact must be found by a jury, is not the same as this Court's making a certain fact essential to the death penalty. The former was a procedural holding; the latter would be substantive. The Ninth Circuit's conclusion that Ring nonetheless "reshaped the structure of Arizona murder law," 341 F.3d at 1105, is particularly remarkable in the face of the Arizona Supreme Court's previous conclusion to the contrary. See State v. Towery, 204 Ariz. 386, 390-391, 64 P. 3d 828, 832-833, cert. dism'd, 539 U.S. 986 (2003). n5

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n5 Respondent also argues that Ring was substantive because our understanding of Arizona law changed. Compare Ring v. Arizona, 536 U.S. 584, 602-603 (2002), with Apprendi v. New Jersey, 530 U.S. 466, 496-497 (2000). Even if our understanding of state law changed, however, the actual content of state law did not. See State v. Ring, 200 Ariz. 267, 279, 25 P. 3d 1139, 1151 (2001), rev'd on other grounds, 536 U.S. 584 (2002); State v. Gretzler, 135 Ariz. 42, 54, 659 P.2d 1, 13, cert. denied, 461 U.S. 971 (1983); Johnson v. Fankell, 520 U.S. 911, 916 (1997).


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*13]

B

Respondent argues in the alternative that Ring falls under the retroactivity exception for "'watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Saffle, 494 U.S., at 495 (quoting Teague, 489 U.S., at 311). He offers several reasons why juries are more accurate factfinders, including the tendency of group deliberation to suppress individual eccentricities; the jury's protection from exposure to inadmissible evidence; and its better representation of the common sense of the community. The Ninth Circuit majority added others, including the claim that a judge might be too acclimated to capital sentencing and that he might be swayed by political pressure. 341 F.3d at 1109-1116. Respondent further notes that common-law authorities praised the jury's factfinding ability. See, e.g., 3 W. Blackstone, Commentaries on the Laws of England 380 (1768); Georgia v. Brailsford, 3 Dall. 1, 4 (1794) (jury charge of Jay, C. J.).

The question here is not, however, whether the Framers believed that juries are more accurate factfinders than judges (perhaps so [*14] -- they certainly thought juries were more independent, see Blakely v. Washington, ante, at ___-___ (slip op., at 9-12)). Nor is the question whether juries actually are more accurate factfinders than judges (again, perhaps so). Rather, the question is whether judicial factfinding so "seriously diminishes" accuracy that there is an "'impermissibly large risk'" of punishing conduct the law does not reach. Teague, supra, at 312-313 (quoting Desist v. United States, 394 U.S. 244, 262 (1969) (Harlan, J., dissenting)) (emphasis added). The evidence is simply too equivocal to support that conclusion.

First, for every argument why juries are more accurate factfinders, there is another why they are less accurate. The Ninth Circuit dissent noted several, including juries' tendency to become confused over legal standards and to

Reed v. Ross

SUPREME COURT OF THE UNITED STATES
468 U.S. 1; 104 S. Ct. 2901; 82 L. Ed. 2d 1

AMOS REED ET AL. v. DANIEL ROSS

No. 83-218

March 27, 1984, Argued

June 27, 1984, Decided

PRIOR HISTORY:

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.

DISPOSITION: 704 F.2d 705, affirmed.

SYLLABUS:

In 1969, respondent was convicted of first-degree murder in a North Carolina state court and sentenced to life imprisonment. At trial, he had claimed lack of malice and self-defense, and, in accordance with well-settled North Carolina law, the trial judge instructed the jury that respondent had the burden of proving each of these defenses. Although respondent appealed his conviction on several grounds, he did not challenge the constitutionality of this instruction. In 1975, Mullaney v. Wilbur, 421 U.S. 684, struck down, as violative of due process, the requirement that the defendant bear the burden of proving lack of malice. In 1977, Hankerson v. North Carolina, 432 U.S. 233, held that Mullaney was to have retroactive application. Subsequently, after exhausting his state remedies, respondent brought a habeas corpus proceeding in Federal District Court under 28 U. S. C. § 2254, challenging the jury instruction, but the court held that habeas relief was barred because respondent had failed to raise the issue on appeal as required by North Carolina law. The Court of Appeals summarily affirmed, but this Court vacated and remanded for further consideration in light of Engle v. Isaac, 456 U.S. 107, and United States v. Frady, 456 U.S. 152, both of which addressed the standard for procedural bars under § 2254 whereby a state prisoner may not obtain federal habeas corpus relief absent a showing of "cause and actual prejudice," when a procedural default bars litigation of a constitutional claim in state court. On remand, the Court of Appeals reversed, holding that respondent had satisfied the "cause" requirement because the Mullaney issue was so novel at the time of his state appeal that his attorney could not reasonably be expected to have raised it. And the State conceded the existence of "prejudice."

Held: Respondent had "cause" for failing to raise the Mullaney issue on appeal from his conviction. Pp. 9-20.

(a) Where, as in this case, a defendant has failed to abide by a State's procedural rule requiring the exercise of legal expertise and judgment, the competing concerns implicated by the exercise of a federal court's habeas corpus power -- on the one hand, Congress' interest in providing a federal forum for the vindication of state prisoners' constitutional rights and, on the other hand, the State's interest in the integrity of its rules and proceedings and the finality of its judgment -- have come to be embodied in the "cause and prejudice" requirement. Pp. 9-11.

(b) Where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures. Pp. 12-16.

(c) Here, the Mullaney issue was sufficiently novel at the time of respondent's appeal to excuse his attorney's failure to raise it at that time. The state of the law at the time of the appeal did not offer a "reasonable basis" upon which to challenge the jury instruction in question. Pp. 16-20.

COUNSEL: Richard N. League, Special Deputy Attorney General of North Carolina, argued the cause for petitioners. With him on the brief was Rufus L. Edmisten, Attorney General.

Edwin Kneedler argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, John H. Garvey, and Louis M. Fischer.

Barry Nakell, by appointment of the Court, 464 U.S. 1036, argued the cause and filed a brief for respondent.

JUDGES: BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, POWELL, and STEVENS, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 20. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C. J., and BLACKMUN and O'CONNOR, JJ., joined, post, p. 21.

OPINIONBY: BRENNAN

OPINION: [*3] [***6] [**2903] JUSTICE BRENNAN delivered the opinion of the Court.

In March 1969, respondent Daniel Ross was convicted of first-degree murder in North Carolina and sentenced to life imprisonment. At trial, Ross had claimed lack of malice and self-defense. In accordance with well-settled North Carolina law, the trial judge instructed the jury that Ross, the defendant, had the burden of proving each of these defenses. Six years later, this Court decided Mullaney v. Wilbur, 421 U.S. 684 (1975), which struck down, as violative of due process, the requirement that the defendant bear the burden of proving lack of malice. Id., at 704. Two years later, Hankerson v. North Carolina, 432 U.S. 233 (1977), held that Mullaney was to have retroactive application. The question presented in this case is whether Ross' attorney forfeited Ross' right to relief under Mullaney and Hankerson by failing, several years before those cases were decided, to raise on appeal the unconstitutionality of the jury instruction on the burden of proof.

I

A

In 1970, this Court decided In re Winship, 397 U.S. 358, the first case in which we directly addressed the constitutional foundation of the requirement that criminal guilt be established beyond a reasonable doubt. [***7] That case held that "[lest] there [**2904] remain any doubt about the constitutional stature of the reasonable-doubt standard, . . . the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Id., at 364.

Five years after Winship, the Court applied the principle to the related question of allocating burdens of proof in a criminal case. Mullaney v. Wilbur, supra. Mullaney arose in the context of a Maine statute providing that "[whoever] unlawfully kills a human being with malice aforethought, either express or implied, is guilty of murder and [*4] shall be punished by imprisonment for life." Id., at 686, n. 3. The trial judge had instructed the jury under this statute that "if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation." n1 Id., at 686. Thus, despite the fact that malice was an element of the offense of murder, the law of Maine provided that, if the defendant contended that he acted without malice, but rather "in the heat of passion on sudden provocation," he, not the prosecution, was required to bear the burden of persuasion by a "fair preponderance of the evidence." Ibid. Noting that "[the] result, in a case such as this one where the defendant is required to prove the critical fact in dispute, is to increase further the likelihood of an erroneous murder conviction," id., at 701, Mullaney held that HN1due process requires the prosecution to bear the burden of persuasion with respect to each element of a crime.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n1 As the Court in Mullaney explained, the trial court "emphasized that 'malice aforethought and heat of passion on sudden provocation are two inconsistent things' . . .; thus by proving the latter the defendant would negate the former and reduce the homicide from murder to manslaughter." 421 U.S., at 686-687.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Finally, Hankerson v. North Carolina, supra, held that Mullaney was to have retroactive application. In reaching this conclusion, the Court followed Ivan V. v. City of New York, 407 U.S. 203 (1972), which had held that Winship was retroactively applicable. Quoting Ivan V. and Winship, the Court stated:



"'The [reasonable-doubt] standard provides concrete substance for the presumption of innocence -- that bedrock "axiomatic and elementary" principle whose "enforcement lies at the foundation of the administration of our criminal law". . . . "Due process commands that no [*5] man shall lose his liberty unless the Government has borne its burden of . . . convincing the factfinder of his guilt." To this end, the reasonable-doubt standard is indispensable, for it "impresses on the tier of fact the necessity of reaching a subjective state of certitude of the facts in issue."'" Hankerson, supra, at 241 (quoting Ivan V., supra, at 204-205 (quoting Winship, supra, at 363-364)).

[***8] Hankerson further stated that, regardless of the administrative costs involved in the retroactive application of a new constitutional doctrine, HN2"'[where] the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule [is] given complete retroactive effect.'" 432 U.S., at 243 (quoting Ivan V., supra, at 204) (emphasis in original). In this case, we are called upon again, in effect, to revisit our decision in Hankerson with respect to a particular set of administrative costs -- namely, the costs imposed on state courts by the federal [**2905] courts' exercise of their habeas corpus jurisdiction under 28 U. S. C. § 2254. n2

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n2 HN3Title 28 U. S. C. § 2254 provides in pertinent part:

"The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

B

Ross was tried for murder under the same North Carolina burden-of-proof law that gave rise to Hankerson's claim in Hankerson v. North Carolina. n3 That law, followed in [*6] North Carolina for over 100 years, was summarized by the North Carolina Supreme Court in State v. Hankerson, 288 N. C. 632, 647, 220 S. E. 2d 575, 586 (1975), as follows:



"[When] it is established by a defendant's judicial admission, or the State proves beyond a reasonable doubt that the defendant intentionally inflicted a wound upon the deceased with a deadly weapon which proximately caused death, the law raises two presumptions against the defendant: (1) the killing was unlawful, and (2) it was done with malice. Nothing else appearing in the case the defendant would be guilty of murder in the second degree. When these presumptions arise the burden devolves upon the defendant to prove to the satisfaction of the jury the legal provocation which will rob the crime of malice and reduce it to manslaughter or which will excuse the killing altogether on the ground of self-defense. If the defendant rebuts the presumption of malice only, the presumption that the killing was unlawful remains, making the crime manslaughter."

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n3 Hankerson was convicted of second-degree murder. North Carolina law at the time of Hankerson's trial had provided that unlawfulness was an element of the crime of second-degree murder and that self-defense negated unlawfulness. See Hankerson v. North Carolina, 432 U.S., at 238. The jury had been instructed as follows:

"'If the State proves beyond a reasonable doubt or it is admitted that the defendant intentionally killed [the victim] with a deadly weapon, that proximately caused his death, the law raises two presumptions; first, that the killing was unlawful, and second, that it was done with malice. . . .

"'[In] order to excuse his act altogether on the grounds of self-defense, the defendant must prove not beyond a reasonable doubt but simply to your satisfaction that he acted in self-defense.'" Id., at 236-237.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

In [***9] accordance with this well-settled state law, the jury at Ross' trial was instructed as follows:



"[In] a case where a person is killed as a result of a gun shot wound fired intentionally . . . where the State has satisfied you beyond a reasonable doubt that the defendant intentionally assaulted the deceased with a deadly weapon and that such assault caused her death there are two presumptions that arise in favor of the State: One, [*7] that the killing was unlawful; two, that it was done with malice; and the burden then shifts to the defendant under those circumstances to satisfy the jury, not beyond a reasonable doubt nor by the greater weight of the evidence, but to satisfy the jury that the killing was not done with malice if he would acquit himself of a charge of murder in the second degree, that is if he would expect and ask at your hands a verdict of less than guilty of murder in the second degree the burden would be upon him under the circumstances to satisfy the jury that the killing was not done with malice and if he would exonerate himself and show that the killing was not unlawful then the burden is upon him to satisfy the jury . . . that the killing was done . . . for some reason recognized by law as justifiable; and he relies here on self-defense." App. 23-24 (emphasis deleted).

On the basis of these instructions, Ross was convicted of first-degree murder. Although Ross appealed his conviction to the North Carolina Supreme Court on a number [**2906] of grounds, In re Burrus, 275 N. C. 517, 169 S. E. 2d 879 (1969), he did not challenge the constitutionality of these instructions -- we may confidently assume this was because they were sanctioned by a century of North Carolina law and because Mullaney was yet six years away. n4

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n4 In addition, Ross did not contemporaneously object to the jury instructions. But under North Carolina law at the time, a contemporaneous objection at trial was not necessary to preserve for review a question involving jury instructions. State v. Gause, 227 N. C. 26, 40 S. E. 2d 463 (1946).


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -


Ross challenged the jury instructions for the first time in 1977, shortly after this Court decided Hankerson. He initially did so in a petition filed in state court for postconviction relief, where his challenge was summarily rejected at both the trial and appellate levels. See App. to Brief for Petitioners A3-A8. After exhausting his state remedies, Ross brought the instant federal habeas proceeding in the United States District Court for the Eastern District of North [*8] Carolina under 28 U. S. C. § 2254. The District Court, however, held that habeas relief was barred because Ross had failed to raise the issue on appeal as required by North Carolina law, n5 App. 27, and the Court of [***10] Appeals for the Fourth Circuit dismissed Ross' appeal summarily. 660 F.2d 492 (1982). On Ross' first petition for certiorari, however, this Court vacated the judgment of the Court of Appeals and remanded the case for further consideration in light of Engle v. Isaac, 456 U.S. 107 (1982), and United States v. Frady, 456 U.S. 152 (1982), two cases in which we addressed the "cause [*9] and prejudice" standard for procedural bars under § 2254. 456 U.S. 921 (1982). On remand, the Court of Appeals reversed, holding that Ross' claim met the "cause and prejudice" requirements and that the District Court had therefore erred in denying his petition for a writ of habeas corpus. 704 F.2d 705 (1983). The Court of Appeals found the "cause" requirement satisfied because the Mullaney issue was so novel at the time of Ross' appeal that Ross' attorney could not reasonably be expected to have raised it. 704 F.2d, at 708-709. And the State had conceded the existence of "prejudice" in light of evidence that had been introduced to indicate that Ross might have acted reflexively in self-defense. The Court of App

 

 

CLN Subscribe Now Ad 450x600
Advertise here
Federal Prison Handbook - Side