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“procedural default” means a claim is blocked because you could have raised it on direct appeal but did not. You can get past it only by showing “cause and prejudice” or actual innocence. Ineffective-assistance-of-counsel claims are the big exception — they are not defaulted for being left out of the appeal.
Habeas review “will not be allowed to do service for an appeal.” Reed v. Farley, 512 U.S. 339, 354 (1994). Two related rules follow. Claims that could have been raised on appeal but were not are generally defaulted. And claims raised and decided on appeal generally cannot be argued again in a § 2255 motion.
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
Where does the procedural default doctrine come from?
The procedural default doctrine is judicially created. Developed in the habeas corpus context in Wainwright v. Sykes, 433 U.S. 72 (1977), the Supreme Court extended the doctrine to section 2255 proceedings in United States v. Frady, 456 U.S. 152 (1982). The Court followed up on Frady in Bousley v. United States, 523 U.S. 614, 622 (1998), where it made clear that a claim is procedurally defaulted when it is the kind of claim that “can be fully and completely addressed on direct review based on the record created,” but was not raised on appeal. Such claims are barred from collateral review.
How can you overcome a procedural default?
A section 2255 movant with a procedurally defaulted claim can overcome the bar in one of two ways: (1) by demonstrating “cause” for failing to raise the claim on direct appeal, and “prejudice” resulting from the errors of which he complains, Frady, 456 U.S. at 168; or (2) by demonstrating that denial of collateral relief would be a “fundamental miscarriage of justice,” Murray v. Carrier, 477 U.S. 478, 495-96 (1986).
The Murray court explained that the “cause” necessary to excuse a procedural default exists if “the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the . . . procedural rule.” 477 U.S. at 488. Such cause “ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim.” Id. at 492.
What has counted as “cause”?
Some examples of cause that have provided a basis for avoiding the procedural default doctrine include a novel claim that was not reasonably available to counsel (Bousley, 523 U.S. at 622); a threat from the prosecutor to indict the movant’s family if movant pursued the claim (United States v. Wright, 43 F.3d 491, 497-500 (10th Cir. 1994)); unavailability of the factual basis of the claim at the time of the default (Carnine v. United States, 974 F.2d 924, 927-28 (7th Cir. 1992)); a claim that “would have been futile” under circuit precedent at the time of the default (English v. United States, 42 F.3d 473, 479 (9th Cir. 1994)); and the State’s suppression of the relevant evidence at the time of the default (Banks v. Dretke, 540 U.S. 668, 691 (2004)).
What is “actual prejudice”?
The prejudice required to overcome a procedural default is actual prejudice. According to the Frady court, the movant must demonstrate “not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” 456 U.S. at 170 (emphasis in original). This is a high bar, but not an impossible one. In Strickler v. Greene, 527 U.S. 263, 289-90 (1999), the Court said, “[ t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence [when the cause complained of was withheld Brady material], but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”
What is the “miscarriage of justice” exception?
A procedural default will also be excused if failure to do so would constitute a “fundamental miscarriage of justice.” The classic case of a fundamental miscarriage of justice is a credible showing of actual innocence. To make a credible showing of actual innocence in order to overcome a procedural default, a movant must present new reliable evidence that was not presented at trial, and “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin v. Perkins, 569 U.S. 383, 399 (2013).
The kind of credible evidence contemplated by the fundamental miscarriage of justice exception to the procedural default doctrine is “new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Considering this new reliable evidence with all of the evidence, the habeas court will make “a probabilistic determination about what reasonable, properly instructed jurors would do.” Id. at 329. If no reasonable juror would have convicted, the default is excused and the court may consider the claim on its merits.
For a claim that you pleaded guilty to conduct that is not a crime, actual innocence means factual innocence, and you must also address any more serious charges the government gave up in the plea bargain. Bousley v. United States, 523 U.S. 614, 623-24 (1998).
Can you re-argue a claim you lost on appeal?
Generally, no. This is a separate rule from procedural default. A claim that was brought on direct appeal generally cannot be relitigated via a section 2255 motion. See Argencourt v. United States, 78 F.3d 14, 16 n. 1 (1st Cir. 1996)(Section 2255 bars relitigation of claims that have been raised and decided on direct appeal). Note that the relitigation bar only applies to claims that were actually decided on direct appeal. See Kramer v. United States, 788 F.2d 1229, 1231 (7th Cir. 1986)(“An issue previously raised on direct appeal cannot be relitigated in a Section 2255 proceeding only if the issue was resolved on the merits)(emphasis added).
Does procedural default apply to ineffective assistance claims?
No, not for failing to raise them on appeal. The doctrine reaches claims that could have been decided on the trial record on direct appeal. Claims that depend on facts outside the record usually could not have been. The most common is ineffective assistance of counsel. The Supreme Court has held that an ineffective-assistance claim may be brought in a § 2255 motion “whether or not the petitioner could have raised the claim on direct appeal.” Massaro v. United States, 538 U.S. 500, 504 (2003).
Can the government waive procedural default?
Yes. Procedural default is not jurisdictional, so the government can waive it. Such a waiver can be express (see Pierce v. United States, 976 F.2d 369, 370 n. 1 (7th Cir. 1992)) or implicit (see Trest v. Cain, 522 U.S. 87, 89 (1997)). Courts are not required to raise a default the government did not raise, though some courts may do so on their own in limited circumstances.
Common questions
What is the procedural default doctrine in the context of section 2255 proceedings?
It is a court-made rule that limits § 2255 claims. A claim is “procedurally defaulted” when it could have been fully addressed on direct appeal but was not raised then. (A separate rule generally bars re-arguing claims the appeals court already decided.)
I have a section 2255 claim that is procedurally defaulted. Is there any way that I can still proceed with a section 2255 motion?
There are two kinds of procedurally defaulted claims that will be entertained in section 2255 proceedings despite the procedural default. First, if the movant can demonstrate “cause” for the failure to raise the claim on appeal, and “prejudice” resulting from the errors presented in the claim, the procedural default doctrine will not bar the claim. Second, if the movant can demonstrate that the denial of collateral relief resulting from the procedural default would be a “fundamental miscarriage of justice,” the claim will be heard. Getting around a default is hard. If you have a claim that may be defaulted, book a consultation with Brandon Sample to talk it through.
I have an ineffective assistance of counsel claim, but it was not asserted on direct appeal. Is this claim procedurally defaulted?
No. Under Massaro v. United States, 538 U.S. 500 (2003), failing to raise ineffective assistance on direct appeal does not bar raising it in a § 2255 motion. The same is generally true for other claims that depend on facts outside the trial record. If you believe your lawyer was ineffective, book a consultation with Brandon Sample to talk it through.
Related pages
Second or Successive 2255 Motions
Questions about your case? Book a consultation to talk it through with Brandon Sample.