Hughes v. Idaho State Board of Corrections

William Junior Hughes (“Hughes”), an Idaho state prisoner, appeals the denial of his petition for writ of habeas corpus. He contends the state prosecutor violated his due process rights by breaching a plea agreement. The district court denied relief upon finding that the agreement was not breached. We do not reach the merits of the district court’s decision. While we affirm the district court’s refusal to grant habeas relief, we do so on the basis that Hughes waived his constitutional claim by failing to appeal the denial of post-conviction relief to the Idaho Supreme Court.

FACTS AND PROCEEDINGS BELOW

Hughes pleaded guilty to a charge of robbery pursuant to a plea agreement. Six years later he filed a petition for post-conviction relief in an Idaho state district court on the ground the plea agreement was violated. The state court dismissed the petition. No appeal was taken.

Hughes thereafter filed an application in federal court for writ of habeas corpus under 28 U.S.C. § 2254 (1982) seeking specific performance of his plea agreement. The state responded in part that “because the Petitioner filed neither a direct appeal of his conviction to the Idaho Supreme court nor a direct appeal of his denial of post-conviction relief to the Idaho Supreme Court, ... the highest court of the State of Idaho has not decided the issue in the Petitioner’s case.” The federal district court’s decision does not mention petitioner’s failure to present his claim to the Idaho Supreme Court. Instead, the court held that the prosecutor did not breach the plea agreement. Hughes timely appealed.

DISCUSSION

A habeas petitioner may waive a constitutional claim by failing to present it for resolution to the highest state court. Jackson v. Cupp, 693 F.2d 867, 869 (9th Cir.1982). When the petitioner has not complied with reasonable state procedures, and the state’s highest court has not been given the opportunity to resolve the merits of the petitioner’s constitutional claim, we may, as a matter of comity, decline to reach the merits. Id.

The Supreme Court has articulated two tests to determine when a federal court should decline to address an issue that was not properly presented for the state court’s resolution. The first is the deliberate bypass standard of Fay v. Noia, 372 U.S. 391, 438-39, 83 S.Ct. 822, 849-50, 9 L.Ed.2d 12 (1963). That test turns on whether the petitioner intentionally relinquished a known right. Id. at 439, 83 S.Ct. at 849. The second is the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). Under this test the petitioner must show cause for the bypass of state procedures and actual prejudice arising from the default.

Since the Supreme Court’s decision in Sykes “a debate has raged in the lower federal courts over when to apply the Sykes ‘cause and prejudice’ test and when to employ the ‘deliberate bypass’ standard of Fay v. Noia, 372 U.S. 391 [, 83 S.Ct. 822, 9 L.Ed.2d 12] (1963).” Maupin v. Smith, 785 F.2d 135, 138 n. 2 (6th Cir.1986). By not explicitly overruling Fay, Sykes left open the question of the appropriate standard to apply to a failure to take an appeal. See Sykes, 433 U.S. at 88 n. 12, 97 S.Ct. at 2507 n. 12. See also Murray v. Carrier, — U.S. -, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Court again expressly declines to give opinion as to whether counsel’s decision to not take an appeal should be treated under the cause and prejudice standard).

Courts have relied on the Supreme Court’s express reservation of the issue to conclude that Fay’s deliberate bypass test should apply to a petitioner’s failure to appeal. E.g., Holcomb v. Murphy, 701 F.2d 1307, 1310 (10th Cir.) (Supreme Court has not overruled Fay and until it does courts should apply Fay to situations in which no appeal has been taken), cert. denied, 463 U.S. 1211, 103 S.Ct. 3546, 77 L.Ed.2d 1394 (1983). In our opinion, however, the value of that reservation has been diminished by several recent Supreme Court decisions. In Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1575, 71 L.Ed.2d 783 (1982), the Court applied the cause and prejudice standard to a failure to make a contemporaneous objection at trial. The Court’s holding was particularly broad. “[A]ny prisoner bringing a constitutional claim to the federal courthouse after a state procedural default must demonstrate cause and actual prejudice before obtaining relief.” Id. at 129, 102 S.Ct. at 1572.

In Reed v. Ross, 468 U.S. 1, 16-19, 104 S.Ct. 2901, 2907-08, 82 L.Ed.2d 1 (1984), the Court applied Sykes’ cause and prejudice standard to a petitioner’s failure to raise a jury instruction issue on appeal. In broad language the Court held that “[w]hen a procedural default bars litigation of a constitutional claim in state court, a state prisoner may not obtain federal habeas corpus relief absent a showing of ‘cause and actual prejudice.’ ” Id. at 11, 104 S.Ct. at 2908 (citing Engle, 456 U.S. at 129, 102 S.Ct. at 1572).

Finally, in Murray, 106 S.Ct. at 2644-50, the Court applied the cause and prejudice standard to counsel’s inadvertent failure to raise a substantive claim of error on direct appeal. “Attorney error short of ineffective assistance of counsel does not constitute cause for a procedural default even when that default occurs on appeal rather than at trial.” Id. at 2648.

This circuit has not decided which test should apply when the state procedural default results from a failure to appeal a dismissal of post-conviction relief to a state supreme court. We conclude that the cause and prejudice standard should apply. We rely primarily upon the clear trend toward application of that standard as evidenced by Engle, Reed and Murray. See Leroy v. Marshall, 757 F.2d 94, 98-99 (6th Cir.) (“current sentiment” is to apply the narrower cause and prejudice standard to state procedural defaults), cert. denied, — U.S. -, 106 S.Ct. 99, 88 L.Ed.2d 80 (1985). We agree substantially with the analysis in Nutall v. Greer, 764 F.2d 462 (7th Cir.1985), involving petitioner’s failure to seek review in the state’s highest court. Petitioner argued that his failure should be excused because his bypass of the highest state court was not a matter of intentional strategy. Id. at 464. The court rejected that argument:

[S]ome defendants may fail to appeal to the highest court not from any deliberate strategy but from simple inexcusable neglect. Such defendants bear the responsibility for their own default and do not present a compelling case for overriding the principle that a federal court should not intrude in a state’s criminal process when the state’s highest court has had no opportunity to rule on the constitutional issues presented. Accordingly, we think that the appropriate standard for exceptions to the waiver is the cause and prejudice rule____

Id. at 464; see also Clark v. Texas, 788 F.2d 309, 310-11 (5th Cir.1986) (Sykes' standard applies to a failure to take a direct appeal).

There remains a question, however, whether Sykes’ cause and prejudice standard should apply at all to a pro se petitioner’s procedural default. That possibility has been raised but not decided in several cases. E.g., Reed, 468 U.S. at 11 n. 7, 104 S.Ct. at 2908 n. 7 (situation of a defendant representing himself is not presented and Court declines to express a view on the applicability of the cause and prejudice requirement in that context); Smart v. Scully, 787 F.2d 816, 821 n. 4 (5th Cir.1986) (since Sykes was held to be inapplicable, court declined to reach question of whether cause and prejudice standard should apply to pro se litigants); Diggs v. United States, 740 F.2d 239, 245 n. 8 (3d Cir.1984) (if cause and prejudice standard were applicable, petitioner would meet it since his lack of representation arguably excuses his procedural default). Apparently only one case squarely addresses the application of the cause and prejudice standard to a petitioner acting pro se at the time of the procedural default. See Strickland v. Marshall, 632 F.Supp. 590, 598-99 (S.D.Ohio 1986). After noting that there was no clearly enunciated standard for a pro se petitioner’s default, the court reasoned that the trend clearly is toward application of Sykes’ cause and prejudice test. “In light of the trend to narrow federal review of state convictions, the Sixth Circuit’s preference for the Sykes' cause and prejudice standard, and the clear inappropriateness of the [Fay] deliberate bypass standard to a pro se petitioner, we conclude that the former should apply.” Id.

Although the cases that developed the cause and prejudice standard involved counsel’s errors, we conclude that the standard should not be limited to those situations. Many state prisoners initiate their own state post-conviction actions. To sweepingly conclude that pro se litigants should not be held to the cause and prejudice standard is to ignore the clear trend toward applying that standard and the apparent abandonment of Fay’s deliberate bypass standard. Thus, we hold that Sykes’ cause and prejudice standard should be applied to Hughes’ failure to appeal the denial of his post-conviction relief in state court.

We turn next to the question of whether Hughes can demonstrate sufficient cause to excuse his procedural default. The Supreme Court has intentionally declined to give precise content to the term “cause” because of the “virtually limitless array of contexts in which a procedural default can occur.” Reed, 468 U.S. at 13, 104 S.Ct. at 2909. See also Sykes, 433 U.S. at 87, 97 S.Ct. at 2506. Although the Court has indicated that cause may be satisfied under certain circumstances when a procedural default is not attributable to an intentional decision by counsel, the only example given of such cause is the failure to raise a constitutional issue reasonably unknown at the time of the default. Reed, 468 at 14-15, 104 S.Ct. at 2909.

Hughes claims to be illiterate, and he asserts that the inmate who helped him was released before the post-conviction petition needed to be appealed. We accept these contentions as true and thus avoid the necessity of a remand for those factual determinations. We conclude that Hughes’ circumstances, although unfortunate, are nevertheless insufficient to meet the cause standard. State courts must be given the opportunity to correct and decide constitutional claims pursuant to reasonable state procedures before the issues are raised in a federal habeas corpus petition. Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir.1982); Jackson, 693 F.2d at 869. When a pro se petitioner is able to apply for post-conviction relief to a state court, the petitioner must be held accountable for failure to timely pursue his remedy to the state supreme court. To hold that illiteracy is a legitimate cause for failing to appeal to the state supreme court would allow petitioners to wait until the jurisdictional period lapsed and then proceed directly to federal court. Such a result would be contrary to the principles of comity underlying the cause and prejudice rule.

Although we find that Hughes fails to meet the cause prong of the cause and prejudice standard, we must consider the Supreme Court’s warning that the standard is one of discretion intended to be flexible and yielding to exceptional circumstances. See Engle, 456 U.S. at 135, 102 S.Ct. at 1575. “[T]he principles of comity and finality that inform the concepts of cause and prejudice ‘must yield to the imperative of correcting a fundamentally unjust incarceration.’ ” Murray, 106 S.Ct. at 2650 (quoting Engle, 456 U.S. at 135, 102 S.Ct. at 1575). But the Court has made clear that the exception is narrow. “[I]n 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.” Murray, 106 S.Ct. at 2650. Hughes does not meet that narrow exception and hence we are unable to overlook his procedural default in failing to appeal the denial of his post-conviction petition.

CONCLUSION

Because petitioner has failed to establish sufficient cause for failing to appeal his post-conviction petition to the Idaho Supreme Court, he has waived his constitutional claim. We affirm without consideration of the merits.

AFFIRMED.

. There is some question whether petitioner’s procedural default has been sufficiently preserved for appellate review. A state may waive procedural default by failing to raise it in federal court. See Batchelor v. Cupp, 693 F.2d 859, 864 (9th Cir.1982).

The issue was clearly raised below. On appeal, however, the state does not argue that review is blocked by petitioner’s default. Rather, the state mentions the procedural default only as part of an historical review of the case. The better practice would have been for the state to have asserted the procedural default as an alternative basis for affirmance. Nevertheless, we conclude the state did not waive its objection to petitioner's procedural default. We deem the state’s assertion of the issue below and its mention of it on appeal sufficient to preserve the issue for our review.

. In Jackson petitioner failed to appeal his post-conviction action, but we concluded we need not decide whether the cause and prejudice test should be applied because the failure was deliberate. Jackson, 693 F.2d at 870. See also Ven-tura v. Cupp, 690 F.2d 740, 741 (9th Cir.1982) (extent to which Fay has survived Sykes is uncertain).

We have applied the cause and prejudice standard to a failure to raise issues on appeal to state court. See Matias v. Oshiro, 683 F.2d 318, 321 (9th Cir.1982). There we indicated that we were unpersuaded by the argument that the factors underlying the cause and prejudice test do not compel its application to procedural waivers in state post-conviction proceedings. Id. at 321 n. 3. We noted that two of our decisions which arguably supported application of the deliberate bypass standard to a failure to raise an issue on appeal were vacated by the Supreme Court for further consideration in light of Engle. Id. (citing Gibson v. Spalding, 665 F.2d 863, 865 (9th Cir.) (Sykes' interests in enforcing state contemporaneous objection rule not implicated in a procedural default consisting of a failure to raise an issue on appeal), vacated and remanded, 456 U.S. 968, 102 S.Ct. 2229, 72 L.Ed.2d 842 (1982); Meyers v. Washington, 646 F.2d 355, 359 (9th Cir.1981) (Sykes’ considerations have no force in situations involving a failure to raise issues on appeal), vacated and remanded, 456 U.S. 921, 102 S.Ct. 1964, 72 L.Ed.2d 436 (1982)).