Hughes v. Idaho State Bd. of Corrections, No. 84-3523

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore SKOPIL and NELSON; SKOPIL; NELSON
Citation800 F.2d 905
PartiesWilliam Junior HUGHES, Plaintiff-Appellant, v. IDAHO STATE BOARD OF CORRECTIONS, Defendant-Appellee.
Docket NumberNo. 84-3523
Decision Date25 September 1986

Page 905

800 F.2d 905
William Junior HUGHES, Plaintiff-Appellant,
v.
IDAHO STATE BOARD OF CORRECTIONS, Defendant-Appellee.
No. 84-3523.
United States Court of Appeals,
Ninth Circuit.
Submitted Jan. 6, 1986.
Decided Sept. 25, 1986.

Page 906

William J. Hughes, Kuna, Idaho, for plaintiff-appellant.

Robert R. Gates, Deputy Atty. Gen., Boise, Idaho, for defendant-appellee.

Appeal from the United States District Court for the District of Idaho.

Before SKOPIL and NELSON, Circuit Judges, and LYNCH, * District Judge.

SKOPIL, Circuit Judge:

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. Sec. 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. 1 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

Page 907

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 837] (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. 2 We conclude that the cause and prejudice standard should apply. We rely primarily upon the clear trend

Page 908

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"...

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