Section 2255 Proceedings: Procedural Default Doctrine
Habeas review is an extraordinary remedy that "will not be allowed to do service for an appeal." Reed v. Farley, 512 U.S. 339, 354, (1994). This statement of the law serves as a warning to section 2255 movants: Neither claims that were made and lost on appeal, nor claims that could have been raised on appeal, but were not, will be entertained in section 2255 proceedings. This is the basis for the procedural default doctrine, one of the more deadly traps for the unwary section 2255 litigant.
What is the Procedural Default Doctrine in the Context of Section 2255 Proceedings?
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 to Overcome the Procedural Default Doctrine in Section 2255 Proceedings
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.
Examples of Cases in Which the Procedural Default Doctrine Was Overcome
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)).
Section 2255 Proceedings: Actual Prejudice Required to Overcome the Procedural Default Doctrine
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). Needless to say, this is a high bar. It is not, however, unreachable. In Strickler v. Greene, 527 U.S. 263, 289-90, 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."
Overcoming Procedural Default: Fundamental Miscarriage of Justice
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 such a juror would not have convicted the movant, then the procedural default is overcome and the 2255 motion will be heard.
Relitigation Not Allowed in Section 2255 Proceedings
The procedural default doctrine is not limited to claims that could have been brought, but were not. 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).
Procedural Default Doctrine: Ineffective Assistance of Counsel and Jurisdictional Issues
There are two final, important points to make about the procedural default doctrine. First, because the doctrine applies by its terms only to claims that could have been raised on direct appeal, extra-record claims are never procedurally defaulted. The most common extra-record claim is ineffective assistance of counsel, which is never subject to procedural default. Even in the rare case where an ineffective assistance of counsel claim actually could have been brought on direct appeal, the Supreme Court has held that the procedural default doctrine will not apply. Massaro v. United States, 538 U.S. 500 (2003).
Second, it is very important that section 2255 movants be aware that the procedural default doctrine is not jurisdictional, and therefore can be waived by the government. 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)). When the government fails to plead procedural default as an affirmative defense, courts have generally declined to come to the rescue.
Experienced Section 2255 Proceedings Attorneys Who Understand the Procedural Default Doctrine
The procedural default doctrine can be deadly to a prisoner's 2255 motion. At the Law Offices of Brandon Sample, we have extensive experience in litigating habeas corpus claims involving the procedural default doctrine. We know how to fashion a section 2255 motion to avoid this trap. If you or a loved one want to seek post-conviction relief through a section 2255 motion, contact us today for a consultation with one of our experienced attorneys. You will be glad that you did.
Section 2255 Proceedings: Procedural Default Doctrine FAQs
Q: What is the procedural default doctrine in the context of section 2255 proceedings?
A: The procedural default doctrine is a judicially created rule that restricts the kinds of claims that may be brought in section 2255 proceedings. A claim is "procedurally defaulted," and thus not cognizable in section 2255 proceedings, when it is the kind of claim that could have been fully addressed on direct appeal, but was not raised at that time. A claim will also be considered procedurally defaulted when it actually was brought on direct appeal, but was properly considered and decided.
Q: I have a section 2255 claim that is procedurally defaulted. Is there any way that I can still proceed with a section 2255 motion?
A: 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. Be warned: the procedural default doctrine is serious business, and getting around the bar is very difficult. If you have a claim that may be procedurally defaulted, contact us now to discuss the matter. Our experienced section 2255 litigators will help you understand how you might avoid the procedural default doctrine.
Q: I have an ineffective assistance of counsel claim, but it was not asserted on direct appeal. Is this claim procedurally defaulted?
A: No. Because an ineffective assistance of counsel claim generally cannot be brought on direct appeal, such a claim is never barred by the procedural default doctrine. This is the case for any other claim that depends on facts outside of the trial record as well. If you believe that your trial counsel was ineffective, give us a call to discuss the matter. Our attorneys routinely handle section 2255 proceedings based on ineffective assistance of counsel.
Second or Successive 2255 Motions