COLEMAN v.
THOMPSON, WARDEN
certiorari to the united states court of appeals
for the fourth circuit
No.
89-7662.
Argued
February 25, 1991
— Decided June 24, 1991
After a Buchanan County jury
convicted petitioner Coleman of capital murder, he was sentenced
to death, and the Virginia Supreme Court affirmed. He then filed a
habeas corpus action in the County Circuit Court, which, after a
2-day evidentiary hearing, ruled against him on numerous federal
constitutional claims that he had not raised on direct appeal. He
filed a notice of appeal with that court 33 days after it entered
its final judgment and subsequently filed a petition for appeal in
the Virginia Supreme Court. The Commonwealth moved to dismiss the
appeal on the sole ground that the notice of appeal was untimely
under the Supreme Court's Rule 5:9(a), which requires that such a
notice be filed within 30 days of final judgment. After both
parties filed several briefs on the subject of the dismissal
motion and on the merits of Coleman's claims, the Supreme Court
granted the motion "upon consideration [o]f" the filed papers.
Coleman next filed a habeas petition in the Federal District Court,
presenting, inter alia, seven federal constitutional claims
he had first raised in state habeas. Among other things, the court
concluded that, by virtue of the dismissal of his state habeas
appeal, Coleman had procedurally defaulted the seven claims. The
Court of Appeals affirmed, rejecting Coleman's argument that the
Virginia Supreme Court had not "clearly and expressly" stated that
its decision in state habeas was based on a procedural default,
such that the federal courts could not treat it as such under
Harris v. Reed, 489 U.S. 255. The court concluded that
federal review of the claims was barred, since the Virginia
Supreme Court had met Harris' "plain statement" requirement
by granting a motion to dismiss that was based solely on
procedural grounds, since that decision rested on independent and
adequate state grounds, and since Coleman had not shown cause to
excuse the default.
Held: Coleman's claims
presented for the first time in the state habeas proceeding are
not subject to review in federal habeas. Pp. 3-31.
(a) Because of comity and
federalism concerns and the requirement that States have the first
opportunity to correct their own mistakes, federal habeas courts
generally may not review a state court's denial of a state
prisoner's federal constitutional claim if the state court's de
cision rests on a state procedural default that is independent of
the federal question and adequate to support the prisoner's
continued custody. See, e. g., Wainwright v. Sykes,
433 U.S. 72, 81, 87. Pp. 3-7.
(b) Since ambiguous state
court decisions can make it difficult for a federal habeas court
to apply the independent and adequate state ground doctrine, this
Court has created a conclusive presumption that there is no such
ground if the decision of the last state court to which the
petitioner presented his federal claims fairly appeared to rest
primarily on resolution of those claims, or to be interwoven with
those claims, and did not "clearly and expressly" rely on an
independent and adequate state ground. See Harris, supra,
at 261, 266; Michigan v. Long, 463 U.S. 1023,
1040-1041. Pp. 7-10.
(c) There is no merit to
Coleman's contention that the Harris presumption applies in
all cases in which the state habeas court's decision does not "clearly
and expressly" state that it was based on an independent and
adequate state ground. The holding of Harris, supra, is not
changed by the fact that, in one particular exposition of its rule,
id., at 263, the Court announced the "plain statement"
requirement without mentioning the predicate requirement that the
state court's decision must fairly appear to rest primarily on, or
to be interwoven with, federal law. The Harris presumption,
like all conclusive presumptions, is designed to avoid the costs
of excessive inquiry where a per se rule will achieve the
correct result in almost all cases. Coleman's proposed rule would
greatly and unacceptably expand the risk of improper federal
review in those cases in which it does not fairly appear that the
state court rested its decision primarily on federal grounds.
Applying Coleman's rule would have very little benefit to the
federal courts in such cases, since their task of determining the
scope of the state court judgment would not be difficult. On the
other hand, that rule would place great burdens on the States,
which, if their courts neglected to provide a clear and express
statement of procedural default, would have to respond to federal
habeas review of the federal claims of prisoners in state custody
for independent and adequate state law reasons, would have to pay
the price in terms of the uncertainty and delay added to the
enforcement of their criminal laws, and would have to retry the
petitioner if the federal courts reversed his conviction.
Coleman's rule would also burden the state courts, which would
have to incorporate "plain statement" language in every state
appeal and every denial of state collateral review that was
potentially subject to federal review. Pp. 10-14.
(d) The Harris
presumption does not apply in this case. The Virginia Supreme
Court's dismissal order "fairly appears" to rest primarily on
state law, since it does not mention federal law and granted the
Commonwealth's dismissal motion, which was based solely on
Coleman's failure to meet Rule 5:9(a)'s time requirements. There
is no merit to Coleman's argument that the dismissal was not
independent of federal law because the Virginia court applied its
procedural bar only after determining that doing so would not
abridge one of his federal constitutional rights, such that
federal review is permissible under Ake v. Oklahoma,
470 U.S. 68, 75. Even if Ake, a direct review case, applies
here, it does Coleman no good because the Virginia court relied on
an independent state procedural ground. Moreover, it is clear that
the rule of Tharp v. Commonwealth, 211 Va. 1, 3, 175
S. E. 2d 277, 278 — in which the Virginia court announced that it
would no longer allow extensions of time for filing petitions
for writs of error with the Supreme Court unless denial of an
extension would abridge a constitutional right — was not applied
here, where it was Coleman's notice of appeal in the trial
court that was late. And, although in O'Brien v.
Socony Mobil Oil Co., 207 Va. 707, 709, 152 S. E. 2d 278, 280,
the Virginia court reviewed the merits of a constitutional claim
before dismissing the case on the basis of an untimely civil
notice of appeal, it also expressly declined to announce a rule
that there is a constitutional exception to the notice of appeal
time requirement. While some ambiguity is added to this case by
the fact that the Virginia Supreme Court's dismissal order was
issued "[u]pon consideration" of all the filed papers, including
those discussing the merits of Coleman's federal claims, this
Court cannot read that ambiguity as overriding the Virginia
court's explicit grant of a dismissal motion based solely on state
procedural grounds independent of federal law. This Court also
accepts the Court of Appeals' conclusion that the procedural bar
was adequate to support the judgment, since Coleman did not
petition for certiorari on this question. Pp. 14-19.
(e) In all cases in which a
state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule,
federal habeas review of the claims is barred unless the prisoner
can demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate
that failure to consider the claims will result in a fundamental
miscarriage of justice. Cf., e. g., Murray v. Carrier,
477 U.S. 478, 485, 495; Harris, supra, at 495. Although
Coleman would be entitled to relief if the "deliberate bypass"
standard set forth in Fay v. Noia, 372 U.S. 391,
438-439, still applied, that standard has been superseded by the
Court's subsequent decisions applying the cause and prejudice
standard. The Fay standard was based on a conception of
federal/state relations that undervalued the important interest in
finality served by state procedural rules, and the significant
harm to the States that results from the failure of federal courts
to respect them. Cf. McCleskey v. Zant, 499 U. S. —,
—, and, pp. 19-26.
(f) Coleman's contention that
it was his attorney's error that led to the late filing of his
state habeas appeal cannot demonstrate "cause" under the foregoing
standard. Carrier, supra, at 488, establishes that attorney
error can be "cause" only if it constitutes ineffective assistance
of counsel violative of the Sixth Amendment. Because there is no
constitutional right to an attorney in state postconviction
proceedings, see, e. g., Pennsylvania v. Finley,
481 U.S. 551, a petitioner cannot claim constitutionally
ineffective assistance of counsel in such proceedings, see,
Wainwright v. Torna, 455 U.S. 586. Although Coleman
argues that attorney error may be of sufficient magnitude to
excuse a procedural default in federal habeas even though no Sixth
Amendment claim is possible, this argument is inconsistent with
the language and logic of Carrier, supra, at 488, which
explicitly says that, in the absence of a constitutional violation,
the petitioner bears the risk in federal habeas for all attorney
errors made in the course of the representation. Pp. 26-29.
(g) Nor is there merit to
Coleman's contention that, at least as to the federal ineffective
assistance claims that he first presented to the state habeas
trial court, attorney error in his state habeas appeal must
constitute "cause" because, under Virginia law at the time of his
trial and direct appeal, claims of that type could be brought only
in state habeas. Although an indigent criminal defendant is
constitutionally entitled to an effective attorney in his "one and
only appeal . . . as of right," Douglas v. California,
372 U.S. 353, 357, 358; Evitts v. Lucey, 469 U.S.
387, Coleman has had his "one and only appeal" as to the claims in
question, since the County Circuit Court fully addressed and
denied those claims. He does not have a constitutional right to
counsel on appeal from that determination. Cf., e. g.,
Finley, supra, at 556. Thus, since any attorney error that
lead to the default of those claims cannot constitute "cause," and
since Coleman does not argue in this Court that federal review of
the claims is necessary to prevent a fundamental miscarriage of
justice, he is barred from bringing the claims in federal habeas.
Pp. 29-31.
895 F. 2d 139, affirmed.
O'Connor, J., delivered
the opinion of the Court, in which Rehnquist, C. J., and
White, Scalia, Kennedy, and Souter, JJ., joined.
White, J., filed a concurring opinion. Blackmun, J.,
filed a dissenting opinion, in which Marshall and
Stevens, JJ., joined. |