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In modern cases, it has become common to assert matter-of-factly that the exhaustion requirement is satisfied, even though the claim has not been fairly presented to the state courts, if the time to assert the claim there has expired. See, e.g., O'Sullivan v. Boerckel, 526 U. S. 838, 850 (1999) (Stevens, J., dissenting). That was not the rule prior to 1963, and the issue is ripe for reconsideration.
Ex parte Spencer, 228 U. S. 652 (1913) appears to be the first Supreme Court case that expressly addresses a claim for which state remedies were no longer available at the time of the filing of the federal habeas petition. (6) Spencer appealed his conviction to the intermediate appellate court and sought review in the Pennsylvania Supreme Court without raising his ex post facto claim. Id., at 658. He then raised his ex post facto claim in state habeas, which was denied, and then federal habeas. Ibid. The Court denied relief, citing the exhaustion rule. See id., at 659-660 (citing Urquhart v. Brown, 205 U. S. 179 (1907)).
"It is true the rule has been announced in cases where habeas corpus was applied for in advance of final decision in the state courts; but the principle of the rule applies as well after decision. The rule would be useless except to enforce a temporary delay if it did not compel a review of the question in the state court and, in the event of an adverse decision, the prosecution of error from this court. In other words, if it gave freedom to omit such defenses in the state court and subsequent review by this court, and yet the accused have an absolute right to habeas corpus." Id., at 660.
Claims that the judge-made Royall rule, see supra, at 5, was strictly a timing rule and referred only to remedies existing at the time of the federal habeas petition, see, e.g., O'Sullivan, 526 U. S., at 850, 852-853 (Stevens, J., dissenting), cannot be reconciled with Spencer. As far back as 1913, a failure to exhaust state remedies permanently barred federal habeas corpus if the unexhausted remedy had lapsed in the interim.
The two best-known early twentieth century cases are more equivocal. Frank v. Mangum, 237 U. S. 309, 338-340 (1915) denied habeas relief on a claim defaulted at trial (presence of the defendant when the verdict was rendered) and rejected for that reason on appeal. (7) The basis is that the state's default rule was a reasonable one, comporting with due process, consistent with the later theory of an adequate state ground. In a similar procedural posture, Moore v. Dempsey, 261 U. S. 86 (1923) vacated a dismissal and remanded for a hearing on the merits. The basis of this action is less than clear, but it appears to be that the magnitude of the violation alleged, "that the whole proceeding is a mask--that counsel, jury, and judge were swept to the fatal end by an irresistible wave of public passion," id., at 91, called for overriding procedural requirements, reminiscent of the modern "miscarriage of justice" exception. Cf. Murray v. Carrier, 477 U. S. 478, 495-496 (1986). Looking at the facts of Moore through a modern lens, it is evident that Moore had a good claim of "cause" for default due to ineffective assistance of counsel. Cf. id., at 492.
Wade v. Mayo, 334 U. S. 672 (1948) was decided two days before the codification of the exhaustion rule. See Darr v. Burford, 339 U. S. 200, 213, n. 34 (1950). Wade made his denial of counsel claim on state habeas and appealed the denial to the Florida Supreme Court, which dismissed without opinion. Wade did not petition this Court for certiorari. 334 U. S., at 675-676. A year later, he petitioned for federal habeas. Habeas cases are civil for the purpose of appellate time limits, see United States v. Hayman, 342 U. S. 205, 209, n. 4 (1952), so the time to petition for certiorari from the state decision was long gone. The Florida Supreme Court subsequently verified that its dismissal had been on the merits, not on failure to appeal. Wade, supra, at 678.
The Wade Court asked for argument on whether the exhaustion rule required dismissal, id., at 677, and divided narrowly on the answer. The four dissenting Justices asserted (1) that certiorari is among the remedies to be exhausted, id., at 689 (Reed, J., dissenting), and (2) that the exhaustion requirement applies equally to presently available remedies and those that are time-barred. Id., at 695. Conspicuous by its absence from the majority opinion is any disagreement with the second proposition. The reversal is premised entirely on distinguishing writs of certiorari from this Court from the remedies in state courts, see id., at 680-681, a distinction that would have been unnecessary if the exhaustion rule did not apply to defaulted claims.
Wade was overruled in Darr, supra, the first Supreme Court default case after codification of the exhaustion rule in 1948. Darr had not appealed from his conviction, but the state courts had considered his claim on the merits in state habeas. See 339 U. S., at 202. He did not petition for certiorari from this decision, and the time to do so had long since expired by the time the case reached the Supreme Court. Most of the majority and dissenting opinions are devoted to a discussion of whether a certiorari petition to this Court is one of the remedies to be exhausted under §2254. Neither opinion questions that denial for lack of exhaustion is the proper consequence of an affirmative answer to that question. See id., at 201; id., at 220 (Frankfurter, J., dissenting).
Failure to exhaust was the basis of the default holding in Daniels v. Allen, a companion case to Brown v. Allen, 344 U. S. 443 (1953). "A failure to use a state's available remedy, in the absence of some interference or incapacity, such as is referred to just above at notes 32 and 33, bars federal habeas corpus. The statute requires that the applicant exhaust available state remedies. To show that the time has passed for appeal is not enough to empower the Federal District Court to issue the writ." Id., at 487 (emphasis added). Footnote 32 cites Dowd v. Cook, 340 U. S. 206 (1951), a case of interference with filing by prison officials, and two denial of counsel cases, De Meerleer v. Michigan, 329 U. S. 663 (1947) and Johnson v. Zerbst, 304 U. S. 458 (1938). (8) Justice Black dissented on the ground that this was a case of "flagrant defiance of the Constitution," in which, under Moore v. Dempsey, "it is never too late for courts in habeas corpus proceedings to look straight through procedural screens . . . ." Brown, 344 U. S., at 554; cf. Rose v. Lundy, 455 U. S., at 543 (Stevens, J., dissenting) (proposing unlimited habeas review for "fundamental" claims, regardless of default, and no relitigation of nonfundamental claims). Justice Frankfurter dissented based on both the magnitude of the violation and the arbitrariness of the state rule as applied to this case. 344 U. S., at 557-558; cf. Lee v. Kemna, 534 U. S. 362, 378 (2002) ( "in this atypical instance, [applying] the Rule would serve 'no perceivable state interest' ") (quoting Osborne v. Ohio, 495 U. S. 103, 123 (1990)). Neither dissent questions that a routine claim would be defaulted by failure to properly exhaust state remedies.
The next case in the series is Irvin v. Dowd, 359 U. S. 394 (1959). Irvin had a strong claim of denial of due process due to inflammatory publicity, see id., at 396-399, which he defaulted by escaping. Id., at 400. The main issue was the interpretation of the state supreme court opinion, which the majority read as excusing the procedural default and resting on the federal merits. See id., at 403. The opinion unequivocally reaffirmed that exhaustion was the basis of the procedural default rule, and distinguished Daniels on its facts without disagreeing with its rule of law. Id., at 404-406. Justice Harlan saw the question as "whether the state court's judgment affirming the conviction rests independently on . . . a state ground." Id., at 413 (dissenting opinion). This was the first time that doctrine had been expressly invoked in a habeas procedural default case in this Court. (9) The Irvin opinion was greeted by two scathing law review articles. See Hart, Foreword, The Time Chart of the Justices: The Supreme Court 1958 Term, 73 Harv. L. Rev. 84 (1959); Reitz, Federal Habeas Corpus: Impact of an Abortive State Proceeding, 74 Harv. L. Rev. 1315 (1961). Nonetheless, Irvin marked the fourth case in a row in which the exhaustion rule was considered the basis of procedural default.
Justice Brennan, the author of Irvin, was also the author of Fay v. Noia, 372 U. S. 391 (1963). "This decision, both in its abrupt break with the past and in its consequences for the future, is one of the most disquieting that the Court has rendered in a long time." Id., at 448 (Harlan, J., dissenting). Noia reviewed the two arguable bases of the Court's past procedural default decisions, independent state grounds and exhaustion, and rejected them both, id., at 428-435, all the while denying that anything it said was inconsistent with precedent. (10) In place of the long line of precedent overruled sub silento was a newly-minted standard of deliberate bypass. Id., at 438.
Noia was utterly indefensible as a matter of history or precedent. See id., 449-463 (Harlan, J., dissenting); Mayers, The Habeas Corpus Act of 1867: The Supreme Court as Legal Historian, 33 U. Chi. L. Rev. 31, 58 (1965); Oaks, Legal History in the High Court--Habeas Corpus, 64 Mich. L. Rev. 451, 458-468 (1966). The defensible ground for the decision lay not in the history of the Great Writ but in the exigencies of the times. This was the era of "massive resistance," and state courts hostile to civil rights were shamelessly manipulating procedural rules to block federal review. See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 457 (1958). Professor Bator recognized this on the eve of the Noia decision. See Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 523-524 (1963). It is most unfortunate that the Noia opinion did not forthrightly assert the real reason, rather than take the path it did. See Oaks, supra, at 472.
When the emergency that prompts measures of dubious legality has passed, the law should return to normal. See Ex parte Milligan, 4 Wall. (71 U. S.) 2, 109 (1866). So it happened, eventually, with habeas corpus. The de novo review rule of Brown v. Allen, supra, was mitigated by this Court in Stone v. Powell, 428 U. S. 465, 481-482 (1976) and Teague v. Lane, 489 U. S. 288, 310 (1989) (plurality opinion), and it was finally abrogated by statute in AEPDA, enacting 28 U. S. C. §2254(d)(1). All three rules were based in large part on renewed confidence in state courts. See Stone, supra, at 493, n. 35; Caspari v. Bohlen, 510 U. S. 383, 395 (1994); 141 Cong. Rec. 15,062, col. 2 (1995) (statement of Sen. Hatch).
The procedural default rule had a similar stepwise revival. In Davis v. United States, 411 U. S. 233, 234-236 (1973), a federal defendant sought to use Noia to get around the requirement of Federal Rule of Criminal Procedure 12(b)(2), that an objection to the composition of the grand jury must be raised before trial, unless cause for raising it later was shown. The Court found it "inconceivable" that Congress could have intended 28 U. S. C. §2255 to allow such an easy circumvention of a rule that Congress had "adopted." Davis, supra, at 241-242. The dissent protested that this was contrary to Noia, see id., at 245 (Marshall, J., dissenting), and so it was. Francis v. Henderson, 425 U. S. 536, 539-541 (1976) relied heavily on Davis in a state prisoner case. The brief opinion did not state any explicit theoretical ground for making the jump from federal to state prisoners. Congress had not enacted the state procedural rule. However, Francis did rely on a direct review, independent state grounds case. Id., at 541 (quoting Michel v. Louisiana, 350 U. S. 91 (1955)). It would have been difficult to invoke the pre-Noia exhaustion basis of procedural default in a case relying heavily on Davis, because Davis was a federal prisoner, for whom the exhaustion doctrine was inapplicable.
Wainwright v. Sykes, 433 U. S. 72 (1977) made it official. A weak Miranda claim, see id., at 96-97 (Stevens, J., concurring), was denied on default grounds, with independent state grounds endorsed as the basis of the default rule. See id., at 81. Exhaustion as the basis of the default rule is not mentioned. Sykes claims Brown/Daniels was based on "an independent and adequate state procedural ground." See id., at 82 (citing Brown, 344 U. S., at 486-487). This is a curious citation. The paragraph of Brown that spans those two pages is unequivocally an exhaustion rationale, and the discussion that precedes that paragraph relies on Darr, Spencer, and Wood, all of which are unambiguous exhaustion cases. See 344 U. S., at 486, n. 35. Heavy reliance on Davis and Francis, see Sykes, supra, at 84-85, was probably thought necessary in Sykes to meet the stare decisis implications of the dissent's reliance on Noia. See id., at 99 (Brennan, J., dissenting); see also id., at 81 (noting how much turmoil there has been in habeas law). Arguably, basing the decision on Davis and Francis meant having to rely on independent state grounds rather than exhaustion. For whatever reason, that has been considered the basis of the default rule ever since, without critical reexamination. (11)
The endorsement of independent state grounds as the basis of the procedural default rule seems to be something of a historical accident. It apparently arose from the need to ease out an expediency-based decision that had outlived its usefulness, rather than from a considered evaluation of its relative utility and appropriateness, compared to the earlier view that default was an aspect of the exhaustion rule. The importation into habeas corpus of a rule designed for this Court's direct review has created a host of problems. In the Ninth Circuit, particularly, these problems threaten the very existence of the procedural default rule and thereby threaten the integrity of the exhaustion rule.
"Plainly," declares Fay v. Noia, "the words of §2254 favor a construction limited to presently available remedies." 372 U. S., at 434, n. 42 (emphasis added). Why the Supreme Court of the United States on three separate occasions, see supra, at 15-17, applied this statute to a situation where it plainly does not apply is not explained. The Noia opinion also says, "Very little support can be found in the long course of previous decisions by this Court" that Congress understood it was codifying in 1948. Id., at 434-435. As discussed supra, at 13-14, Ex parte Spencer is a precedent of this Court squarely holding that the exhaustion rule applies to this situation, and that precedent was not overruled or questioned in any decision prior to the codification. The history of the statute therefore provides very strong support that defaulted claims are included in the exhaustion rule, and the language is worth another look.
The 1948 codification survives today as subdivisions (b)(1) and (c) of 28 U. S. C. §2254, with only stylistic changes: (12)
"(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that--
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented."
Subdivisions (b)(2) and (3) are new in AEDPA. Their only relevance to the present question is the strong reaffirmation by Congress in (b)(3) of the importance of the exhaustion rule. See supra, at 7. The two pre-Noia law review articles simply state the supposedly clear inapplicability of the statutory language to time-barred remedies as an ipse dixit, and neither mentions Spencer. Reitz, 74 Harv. L. Rev., at 1365 (citing Hart); Hart, 73 Harv. L. Rev., at 113; see also Noia, 372 U. S., at 434, n. 42 (citing Reitz).
The starting place for analyzing a statutory exhaustion requirement is what such requirements mean in the law generally. Outside of habeas corpus, this term arises most often in administrative law. Congress sometimes requires that aggrieved persons "exhaust" their administrative remedies before turning to the courts. The common understanding of such statutes is that they refer to remedies existing at any time prior to filing the court suit, not just those remaining at the time of filing. Porter v. Nussle, 534 U. S. 516 (2002) is a recent example. Congress imposed an exhaustion requirement on prisoners in the Prison Litigation Reform Act of 1995, 42 U. S. C. §1997e(a). See Nussle, supra, at 519-520. Nussle had 30 days to file his administrative grievance, and that time was long gone when he filed his civil rights court suit almost three years after the incident. Id., at 521. The District Court correctly dismissed for failure to exhaust administrative remedies. See id., at 521, 532. Conspicuous by its absence from this Court's opinion is any suggestion that Nussle had satisfied the exhaustion requirement simply by letting his time run. The general rule is well understood in administrative exhaustion that failure to invoke the administrative remedy within the time required forfeits both the administrative and the judicial remedies. For example, Bowen v. City of New York, 476 U. S. 467, 482 (1986), found that an administrative exhaustion requirement was excused under the circumstances, rather than satisfied, when claimants failed to employ an administrative review process within its time deadlines.
The question is whether there is anything in the language of §2254 to indicate that Congress intended something different from the usual meaning of an exhaustion requirement. The present perfect tense "has exhausted" implies an action that has been completed as of the time of the federal habeas suit. The simple present tense in (b)(1)(A), "is an absence of available State corrective process," does not imply existence at any particular point in time. It is just as consistent with an interpretation referring to continuing existence in the state's remedial structure. The only language that leans in the direction of referring only to presently available remedies is subdivision (c). This subdivision does not purport to be an exclusive definition of exhaustion limiting the general rule of subdivision (b), but rather specifies one situation where "[a]n applicant shall not be deemed to have exhausted . . . ." (Emphasis added.)
History, in the form of the pre-1948 cases, illuminates the meaning of these phrases. As discussed supra, at 13-14, Ex parte Spencer supports exhaustion as referring to remedies available at any time in the process. Amicus has found no Supreme Court authority to the contrary. Professor Reitz admits, "cases interpreting the exhaustion requirement as applicable only to present state remedies are hard to find," and he could cite only two circuit cases, only one of which predated the codification. 74 Harv. L. Rev., at 1364, n. 165. The statute's reference to absence of state corrective process appears to be intended to deal with the situation of White v. Ragen, 324 U. S. 760, 764-767 (1945), where the state simply has no procedure for adjudicating constitutional claims based on facts outside the record. The statute also allows for the situation where state remedies are ineffective in practice in (b)(1)(B)(ii), a reference to cases of default caused by interference by the state or denial of counsel, see Brown, 344 U. S., at 486, n. 32, 487, or the situation in Moore v. Dempsey, 261 U. S. 86, 91 (1923) where counsel intimidated by the mob defaulted the claim.
The language of the statute, on its face, is fully consistent with the view that the exhaustion requirement includes defaulted remedies as well as currently existing ones. When viewed in light of its history, this interpretation can be seen to be the correct one.
Amicus CJLF would not ask this Court to overturn an interpretation in force for 26 years, however unsupported as initial matter, if that interpretation were working well. We would be content to let a sleeping dog lie if the dog were sleeping soundly. Regrettably, that is not the case. The complexities of the adequate and independent state grounds doctrine have caused the law of procedural default in habeas corpus to be radically different in different parts of the country, apparently beyond the capacity of this Court to correct. The doctrine creates perverse incentives for states to eliminate exceptions to their default rules, remove discretion from courts, and enact harsh statutes of limitations. If the wounds inflicted by this confused doctrine will not stop bleeding, then states must apply a tourniquet.
The doctrine of adequate and independent state grounds was developed for questions of substantive law in state court cases subject to this Court's direct review. Where a state court's decision of a state law issue resolves the controversy regardless of which way the federal question is decided, there is no appropriate subject for this Court's review. See Murdock v. City of Memphis, 20 Wall. (87 U. S.) 590, 634-635 (1875). In this situation, the focus is necessarily and properly on the state court's decision, rather than on anything the parties have done.
Importing this test into habeas corpus and applying it to procedural rules creates considerable problems with interpreting state decisions. The state court decisions reviewed by this Court on certiorari typically involve questions of law on which courts disagree, and they have usually been decided in full, reasoned opinions, most often by the highest court of the state, with the issue in question being the main issue of the case. Cases where a party merely asks for the application of established law to the facts of his case are rarely "certworthy." See Supreme Court Rule 10. Federal habeas corpus today is almost entirely about application of existing law to particular facts, since adventures in new lawmaking on habeas were largely shut down by Teague v. Lane, 489 U. S. 288 (1989) and AEDPA. The cases are often disposed of in the state courts with brief, unpublished opinions, particularly in noncapital cases. The claim at issue may have been one of a hundred, given the shotgun allegations of error so common in criminal appellate practice today. When these factors are combined, it is easy to see why difficulty in discerning the basis of the state decision is common. In the present case, we do not know and cannot know to what extent the Oregon Court of Appeals' affirmance was due to Reese's failure to properly raise and brief claims and to what extent it was due to the court's agreement with the lower court decision. The "look through" presumption of Ylst v. Nunnemaker, 501 U. S. 797 (1991) is unjustified when an issue is not briefed on appeal. Cf. Coleman v. Thompson, 501 U. S. 722, 737 (1991) (bright-line rules unjustified when counterfactual).
In one situation, the idea that a state judgment rests on an independent state ground with regard to a defaulted claim is pure fiction. That is the case when a petitioner goes to federal habeas corpus with a claim he has never presented to the state courts at all, but which is now barred under state law. In that case, the federal court must decide the state procedural question itself, and there simply is no relevant state decision to examine. See Harris v. Reed, 489 U. S. 255, 269-270 (1989) (O'Connor, J., concurring).
Basing the procedural default on exhaustion rather than independent state grounds would shift the focus from the state court decision to the steps taken by the petitioner to obtain a state decision on the merits, and it would simultaneously simplify the inquiry. Assuming the state has a readily discernible forum and procedure for obtaining review of an issue, did the petitioner invoke the correct procedure in the correct forum within the allowed time? If he did not, then he has not exhausted available state remedies within the meaning of §2254(b)(1)(A). The only qualification would be that if the state court clearly excused default and resolved a nonstandard or out-of-time petition on the merits, rather than on the default rule, federal habeas is not barred. See Brown, 344 U. S., at 486, and n. 33. Otherwise, the petitioner will have to try to qualify for one of the exceptions in subdivision (b)(1)(B), discussed infra, at 27-28.
The doctrine that a state procedural rule, to be "adequate," must be "strictly and regularly followed" came from Barr v. City of Columbia, 378 U. S. 146, 149 (1964). Barr was one of a series of cases during the civil rights struggle, when some state courts cynically manipulated procedural rules in an attempt to preclude this Court's review. See Brief for Criminal Justice Legal Foundation as Amicus Curiae in Lee v. Kemna, No. 00-6933, p. 11 ("Lee Brief"). (13) Unfortunately, the "varying rubrics" used by this Court for "adequate" state grounds have never been unified into a coherent standard. See R. Fallon, D. Meltzer, & D. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 582 (4th ed. 1996). Confusion in this area is rampant. See Lee Brief, at 5-11. Such confusion breeds radically different application of the law in different circuits.
In the Fifth Circuit, an "occasional act of grace" does not disqualify a state rule from being "adequate." Amos v. Scott, 61 F. 3d 333, 342 (CA5 1995). Similarly, the Seventh Circuit wisely recognizes that a strict interpretation of "strictly" would discourage flexibility and discretion in the operation of state review systems, with "unacceptably harsh consequences." Prihoda v. McCaughtry, 910 F. 2d 1379, 1383-1384 (CA7 1990). Regrettably, this wisdom has not prevailed in the Ninth Circuit, where a state default rule will be branded "inadequate" merely because it is "flexible" and "involves discretion." See Fields v. Calderon, 125 F. 3d 757, 762, 764-765 (CA9 1997), cert. denied, 523 U. S. 1132 (1998); Petrocelli v. Angelone, 248 F. 3d 877, 886, 888 (CA9 2001) (holding Nevada's procedural default rule "inadequate" because the state supreme court "exercises discretion" in capital cases). Apparently, the states of the Far West must adopt procedural default rules so mechanical that they can be programmed into a computer before they will be respected by the federal courts of the Ninth Circuit. That would be a considerable loss to the quality of justice.
If the focus were shifted to the question of whether the defendant timely invoked the proper remedy, this perverse incentive would disappear. The questions would be only whether the state had a clearly available procedure, whether the defendant invoked it, and, if not, whether the state court actually waived the default and decided his particular case on the merits instead. The existence of possible exceptions and the granting of discretionary waivers in other cases would be irrelevant.
The present doctrine of procedural default has exceptions for "cause and prejudice" and "fundamental miscarriage of justice." See Coleman v. Thompson, 501 U. S., at 748. The existence of these exceptions is somewhat difficult to reconcile with the theory that the petitioner is in prison pursuant to a state judgment that rests on adequate and independent state grounds. They are easier to fit into the exhaustion statute, although admittedly a bit of shoehorning is still required.
Congress has provided that state remedies need not be exhausted when "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U. S. C. §2254(b)(1)(A)(ii). The language was probably inspired by extreme cases such as Moore v. Dempsey, see supra, at 14-15, but it is expansive enough to accommodate less severe problems. An effective system of review has reasonably clear rules that tell an appellant what to file, where, and when. The burdens it imposes are not unreasonable. It does not set "springes" which trap claims without warning or for no valid purpose. See Davis v. Wechsler, 263 U. S. 22, 24 (1923); Lee v. Kemna, 534 U. S. 362, 376-378 (2002). It should have enough flexibility to grant relief despite default where the petitioner has good cause and is prejudiced, and it should certainly hear the claim of a prisoner who can prove he is actually innocent. If the state rules do not permit a hearing on the merits in these circumstances, then the process is ineffective and exhaustion is excused.
In summary, an exhaustion-based rule of procedural default would work this way:
1. A criminal defendant has failed to exhaust his state remedies if he does not fairly present his claims to each level of the state courts where review is available.
2. The federal claim must be "plainly and reasonably made," Lee v. Kemna, 534 U. S., at 376 (quoting Davis v. Wechsler, 263 U. S., at 24), meaning facts, argument, and authorities. The authorities must identify the claim as federal to preserve a federal claim. See Duncan v. Henry, 513 U. S. 364, 366 (1995).
3. The claim must be presented in accordance with the state's rules of procedure.
4. The only cases where a claim will be deemed exhausted despite a default are those where it clearly appears that the state court decided to excuse the default and decided solely on the merits. See supra, at 26.
5. Under 28 U. S. C. §2254(b)(1)(B)(i), exhaustion is excused if the state simply has no corrective process. This should rarely, if ever, happen any more.
6. The ineffective process exception of 28 U. S. C. §2254(b)(1)(B)(ii) applies to the following situations:
a) The state courts' enforcement of their default rule despite cause and prejudice or a compelling showing of actual innocence;
b) Rules so nebulous, or changed after the fact, that counsel cannot determine the proper procedure to preserve the claim (Justice Holmes' "springes"); or
c) Application of a rule in circumstances where it serves no legitimate state interest, which Lee assures us will be rare. 534 U. S., at 379-380.
In all other cases, defaulted claims will not be grounds for habeas relief. In particular, states will not be punished for allowing their courts to exercise discretion to relieve default in particularly compelling cases, nor will they be required to define with mechanical, mathematical predictability precisely what they deem to be sufficiently compelling.
Application to the present case is simple. Reese's presentation of his federal Sixth Amendment ineffective assistance of appellate counsel claim to the Oregon Court of Appeals and Supreme Court was neither "plainly and reasonably made," in the sense of Davis and Lee, nor in compliance with Oregon rules. Those courts' summary denials of relief did not waive the default. None of the circumstances excusing nonexhaustion apply. The claim must be denied.
The decision of the United States Court of Appeals for the Ninth Circuit should be reversed.
July, 2003
Respectfully submitted,
Kent S. Scheidegger
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6. In re Wood, 140 U. S. 278, 289-290 (1891) is a possibility, invoking the exhaustion rule for a claim never presented to the state courts when the
time to do so appears to have passed, without inquiring whether any state remedy remained available. However, the opinion is not explicit on the
point.
7. Frank's much stronger claim of a mob-dominated trial was rejected on the basis of deference to contrary state court factual findings, id., at 338,
which remains the law to this day. See 28 U. S. C. §2254(e).
8. The reference to footnote 33 is unclear, as this note deals with another point.
9. More precisely, it was the first time in a federal habeas case. The doctrine had previously been invoked to deny review by this Court of state
habeas decisions, when the state court declined to review claims that could have been made on appeal, but were not. See Woolsey v. Best, 299
U. S. 1, 2 (1936) (per curiam).
10. On the other hand, Noia was frank in overruling the holding of Darr, that a petition for certiorari to this Court was required for exhaustion, on
the sensible and legitimate ground that the growth in the Court's workload had rendered it impractical. Id., at 437.
11. Coleman v. Thompson, 501 U. S. 722, 750 (1991) finally overruled Noia.
12. The original language is quoted in Brown, 344 U. S., at 462, n. 17.
13. This brief is available on our Web site, http://www.cjlf.org/pdf/Lee.pdf
August 2003