Procedural Default and Connecticut Habeas Corpus

Respondents have an opportunity to contend a Connecticut habeas corpus claim. One way they might do this is through procedural default. Learn more here.

The respondent, in its return, may assert that a claim in the amended petition is procedurally defaulted because it was not raised at trial or on appeal. Thus, it is subject to dismissal under Practice Book §§ 23-22(3), 23-29(5), 23- 30(b), 23-34 and/or 23 -37. This sometimes happens when a fundamental right violation gets raised for the first time in a habeas petition.

Defense of Procedural Default

The defense of procedural default is an affirmative defense. Also, if the respondent does not raise the defense of procedural default in its return, see Practice Book § 23-30(b), the defense gets waived. Day v. Commissioner, 151 Conn. App. 754, cert. denied, 314 Conn. 936 (2014); Quint v. Commissioner, 99 Conn. App. 395, 403 (2007). If, however, the defense is raised in the return, habeas counsel must answer it in the reply, unless the amended petition itself puts the defense in dispute or otherwise asserts cause and prejudice. See Practice Book § 23-31(a)(c).

“The appropriate standard for reviewability of habeas claims that were not properly raised at trial…or on direct appeal…because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the petition…[T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance…” (internal quotation marks omitted; citation omitted) Cobham v. Commissioner, 258 Conn. 30, 40 (2001).

So, use of the cause and prejudice test in habeas proceedings began in Wainwright v. Sykes, 433 U.S. 72, 87 (1977). In addition, Connecticut utilizes the cause and prejudice test. See Johnson v. Commissioner, 218 Conn. 403, 419 (1991)(cause and prejudice test applied in habeas proceedings when respondent charges procedural default for failure to raise constitutional violation at trial); Jackson v. Commissioner, 227 Conn. 124 (1993)(cause and prejudice test applied in habeas proceedings when respondent charges procedural default for failure to raise constitutional violation on appeal).

Raising a Claim

The leading United States Supreme Court cases on procedural default are Wainwright v. Sykes, supra 433 U.S. 72; Engle v. Isaac, 456 U.S. 107 (1982); Reed v. Ross, 468 U.S. 1 (1984); Murray v. Carrier, 477 U.S. 478 (1986); and Coleman v. Thompson, 501 U.S. 722 (1991). These cases, and our own cases, collectively reveal what does and does not constitute “cause” for a procedural default.” The following circumstances have been held to constitute “cause” for a procedural default— The failure of counsel to raise a claim for which there was no reasonable basis in existing law constitutes cause for a procedural default. See Murray v. Carrier, 477 U.S. at 488; Reed v. Ross, 468 U.S. at 15- 16; Engle v. Isaac, 456 U.S. at 131.

The failure of counsel to raise a claim because of “interference by officials,” Brown v. Allen, 344 U.S. 443, 486 (1953), constitutes cause for a procedural default. See Murray, 477 U.S. at 488. An error by counsel that amounts to ineffective assistance of counsel constitutes cause for a procedural default. See Murray, 477 U.S. at 488, 496; Coleman v. Thompson, 501 U.S. at 754-56; cf. State v. Leecan, 198 Conn. 517, 541-42 (claim of ineffective assistance of counsel raised for first time in habeas petition does not violate deliberate bypass rule), cert. denied , 476 U.S. 1184 (1986); Valeriano v. Bronson, 209 Conn. 75, 85 (1988) (ineffective assistance of counsel claim for failing to raise claim on direct appeal automatically satisfies the deliberate bypass requirement).

Overall, any “objective factor external to the defense [that] impeded counsel’s efforts to comply with the State’s procedural rule” constitutes cause for a procedural default. See Murray, 477 U.S. at 488.

No Cause for Procedural Default

The following circumstances have been held not to constitute “cause” for a procedural default— Absent exceptional circumstances, the strategic decisions of competent counsel do not constitute cause for a procedural default. See Wainwright, 433 U.S. at 91 n.14; Reed, 468 U.S. at 13-14. The failure of competent counsel to recognize a claim, or to raise a claim that he or she recognized, does not constitute cause for a procedural default. See Murray, 477 U.S. at 486; Engle, 456 U.S. at 133-34. Cause for a procedural default is not established by “[a]ttorney ignorance or inadvertence…” Coleman, 501 U.S. at 753. An error by competent counsel that does not rise to the level of ineffective assistance of counsel does not constitute cause for a procedural default. See Murray, 477 U.S. at 492; see also Jackson v. Commissioner, 227 Conn. at 135-36.

Actual prejudice, the second component of the cause and prejudice test, requires an examination of the harm stemming “from the impropriety claimed in the petition.” (Internal quotation marks omitted; citation omitted) Cobham v. Commissioner, 258 Conn. at 40; see also McClesky v. Zant, 499 U.S. 467, 494 (1991)(“Once the petitioner has established cause, he must show ‘“actual prejudice” resulting from the errors of which he complains.’” (quoting United States v. Frady , 456 U.S. 152, 168 (1982))). This necessarily entails consideration of the evidence in the case, see Wainwright, 433 U.S. at 91 (substantial evidence of guilt presented at trial negated possibility of prejudice stemming from Miranda violation), and ultimately an assessment of whether the conviction remains reliable. See Murray v. Carrier, 477 U.S. at 494-95.

Cause and Prejudice

Cause and prejudice for a procedural default is also established where a constitutional violation has probably resulted in the conviction of an actually innocent person or where a miscarriage of justice would otherwise result. See Coleman, 501 U.S. at 748-50; Murray, 477 U.S. at 495-96; Engle, 456 U.S. at 135; Wainwright, 433 U.S. at 90-91.

The cause and prejudice test does not apply, and a procedural default is automatically overcome, when the petitioner “brings a claim alleging ineffective assistance of trial counsel.” Johnson v. Commissioner, 285 Conn. 556, 571 (2008). Likewise, the cause and prejudice test does not apply, and a procedural default is automatically overcome, “when a habeas court is faced with a claim formulated within the narrow confines of ineffective assistance of appellate counsel.” Johnson v. Commissioner, 285 Conn. at 569 (citing Valeriano v. Bronson, 209 Conn. 75, 76 (1988)).

Rather, the test applied in each instance is the two-part Strickland test. See Johnson, 285 Conn. at 570-72. This is because, “[i]f a petitioner can prove that his attorney’s performance fell below acceptable standards, and that, as a result, he was deprived of a fair trial or appeal, he will necessarily have established a basis for ‘cause’ and will invariably have demonstrated ‘prejudice.’” Johnson, 285 Conn. at 570; see also Id. at 572.

Using this Defense

With these principles in mind, habeas counsel must answer the defense of procedural default if it is raised in the return. The reply, see Practice Book § 23-31 and 23-35(c), may take one of several forms. If the habeas petition itself puts the defense in dispute or otherwise asserts cause and prejudice, habeas counsel should so indicate and need not plead anything further. See Practice Book § 23-31(a). In addition, if the habeas petition does not itself put the defense in dispute or otherwise assert cause and prejudice, habeas counsel must “allege any facts and assert any cause and prejudice claimed to permit review of any issue despite any claimed procedural default.” Practice Book § 23-31(c).

If the nature of the habeas claim is such that cause and prejudice is not required to overcome the defense, such as a claim of ineffective assistance of counsel at trial or on appeal, habeas counsel should so indicate. If the habeas petition reveals that a constitutional violation has probably resulted in the conviction of an innocent person, namely, the petitioner, or that a miscarriage of justice will result if the violation is not reviewed, cause and prejudice for the default is established and habeas counsel should so indicate.