HARRIS v. REED, WARDEN, ET AL.
No. 87-5677
Supreme Court of the United States
Argued October 12, 1988—Decided February 22, 1989
489 U.S. 255
Kimball R. Anderson, by appointment of the Court, 485 U.S. 974, argued the cause for petitioner. With him on the briefs were George B. Christensen and E. King Poor.
JUSTICE BLACKMUN delivered the opinion of the Court.
In this case, we consider whether the “plain statement rule” of Michigan v. Long, 463 U.S. 1032, 1042, and n. 7 (1983), applies in a case on federal habeas review as well as in a case on direct review in this Court. We hold that it does.
I
Petitioner Warren Lee Harris was convicted in the Circuit Court of Cook County, Ill., of murder. On direct appeal, petitioner challenged only the sufficiency of the evidence. The Appellate Court of Illinois, by an unpublished order, affirmed the conviction. App. 5; see 71 Ill. App. 3d 1113, 392 N.E.2d 1386 (1979).
Petitioner then returned to the Circuit Court of Cook County and filed a petition for postconviction relief, alleging that his trial counsel had rendered ineffective assistance in several respects, including his failure to call alibi witnesses.1 The court dismissed the petition without an evidentiary hearing. The Appellate Court of Illinois, in another unpublished order, again affirmed. App. 9.
Petitioner did not seek review in the Supreme Court of Illinois. Instead, he pursued his ineffective-assistance-of-counsel claim in federal court by a petition for a writ of habeas corpus under
The District Court, however, determined that the Illinois Appellate Court had not held any portion of the ineffective-assistance claim to have been waived. First, the District Court observed, the statе court had “made clear” that the waiver did not apply to the issue of alibi witnesses. Id., at 1378. Second, the court never clearly held any other issue waived. The state court “did not appear to make two rulings in the alternative, but rather to note a procedural default and then ignore it, reaching the merits instead.” Ibid. Based on this determination, the District Court concluded that it was permitted to consider the ineffective-assistance claim in its entirety and ordered an evidentiary hearing. Id., at 1385. After that hearing, the court, in an unpublished
The Court of Appeals affirmed the dismissal, 822 F.2d 684 (CA7 1987), but did not reach the merits because, in disagreement with the District Court, it believed the ineffective-assistance claim to be procedurally barred. Considering the Illinois Appellate Court‘s order “ambiguous” because it contained “neither an explicit finding of waiver nor an expression of an intention to ignore waiver,” the Court of Appeals nonetheless asserted that a reviewing court “should try to assess the state court‘s intention to the extent that this is possible.” Id., at 687. Undertaking this effort, the Court of Appeals concluded that the order “suggest[ed]” an intention “to find all grounds waived except that pertaining to the alibi witnesses.” Ibid. Based on this interpretation of the order, the Court of Appeals concluded that the merits of petitioner‘s federal claim had been reached only “as an alternate holding,” ibid., and considered itself precluded from reviewing the merits of the claim.3
Concurring separately, Judge Cudahy stated: “Rather than attempting to divine the unspoken ‘intent’ of [the state] court, I think we should invoke a presumption that waiver not clearly found has been condoned.” Ibid.
The disagreement between the majority and the concurrence reflects a conflict among the Courts of Appeals over the standard for determining whether a state court‘s ambiguous invocation of a procedural default bars federal habeas re
II
The confusion among the courts evidently stems from a failure to recognize that the procedural default rule of Wainwright v. Sykes has its historical and theoretical basis in the “adequate and independent state ground” doctrine. 433 U.S., at 78-79, 81-82, 87.5 Once the lineage of the rule is clarified, the cure for the confusion becomes appаrent.
A
This Court long has held that it will not consider an issue of federal law on direct review from a judgment of a state court if that judgment rests on a state-law ground that is both “independent” of the merits of the federal claim and an “adequate” basis for the court‘s decision. See, e. g., Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935); Murdock v. City of Memphis, 20 Wall. 590, 635-636 (1875). Although this doctrine originated in the context of state-court judgments
The question whether a state court‘s reference to state law constitutes an adequate and independent state ground for its judgment may be rendered difficult by ambiguity in the state court‘s opinion. In Michigan v. Long, 463 U.S. 1032 (1983), this Court laid down a rule to avoid the difficulties associated with such ambiguity. Under Long, if “it fairly appears that the state court rested its decision primarily on federal law,” this Court may reach the federal question on review unless the state court‘s opinion contains a “‘plain statement’ that [its] decision rests upon adequate and independent state grounds.” Id., at 1042.7
The Long “plain statement” rule applies regardless of whether the disputed state-law ground is substantive (as it was in Long) or procedural, as in Caldwell v. Mississippi, 472 U.S. 320, 327 (1985). Thus, the mere fact that a federal claimant failed to abide by a state procedural rule does not, in and of itself, prevent this Court from reaching the federal claim: “[T]he state court must actually have relied on the procedural bar as an independent basis for its disposition of the
B
The adequate and independent state ground doctrine, and the problem of ambiguity resolved by Long, is of concern not only in cases on direct review pursuant to
Wainwright v. Sykes made clear that the adequate and independent state ground doctrine applies on federal habeas. 433 U.S., at 81, 87. See also Ulster County Court v. Allen, 442 U.S. 140, 148 (1979). Under Sykes and its progeny, an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show “cause” for the default and “prejudice attributable thereto,” Murray v. Carrier, 477 U.S. 478, 485 (1986), or demonstrate that failure to consider the federal claim will result in a “fundamental miscarriage of justice.” Id., at 495, quoting Engle v. Isaac, 456 U.S. 107, 135 (1982). See also Smith v. Murray, 477 U.S. 527, 537 (1986).
Conversely, a federal clаimant‘s procedural default precludes federal habeas review, like direct review, only if the last state court rendering a judgment in the case rests its judgment on the procedural default. See Caldwell v. Mississippi, 472 U.S., at 327; Ulster County Court v. Allen, 442 U.S., at 152-154. Moreover, the question whether the state court indeed has done so is sometimes as difficult to answer on habeas review as on direct review. Just as this Court under
Habeas review thus presents the same problem of ambiguity that this Court resolved in Michigan v. Long. We held in
Although Long and Caldwell arose on direct review, the principles underlying those decisions are not limited to direct review. Indeed, our opinion in Caldwell relied heavily upon our earlier application of the adequate and independent state ground doctrine to habeas review in Ulster County. See Caldwell, 472 U.S., at 327-328. Caldwell thus indicates that the problem of ambiguous state-court references to state law, which led to the adoption of the Long “plain statement” rule, is common to both direct and habeas review. Faced with a common problem, we adopt a common solution: a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case “clearly and expressly” states that its judgment rests on a state procedural bar. Caldwell, 472 U.S., at 327, quoting Long, 463 U.S., at 1041.9
C
Respondents, however, urge us to adopt a different rule for habeas cases, arguing that if a state-court decision is ambiguous as to whether the judgment rests on a procedural
A state court remains free under the Long rule to rely on a state procеdural bar and thereby to foreclose federal habeas review to the extent permitted by Sykes.10 Requiring a state court to be explicit in its reliance on a procedural default does not interfere unduly with state judicial decisionmaking. As Long itself recognized, it would be more intrusive for a federal court to second-guess a state court‘s determination of state law. 463 U.S., at 1041. Moreover, state courts have become familiar with the “plain statement” requirement under Long and Caldwell. Under our decision today, a state court need do nothing more to preclude habeas review than it must do to preclude direct review.
In contrast, respondents’ proposed rule would impose substantial burdens on the federal courts. At oral argument, counsel for respondents conceded that in some circumstances, under their proposal, the federal habeas court would be forced to examine the state-court record to determine
Thus, we are not persuaded that we should depart from Long and Caldwell simply because this is a habeas case. Having extended the adequate and independent state ground doctrine to habeas cases, we now extend to habeas review the “plain statement” rule for determining whether a state court has relied on an adequate and independent state ground.12
Applying the “plain statement” requirement in this case, we conclude that the Illinois Appellate Court did not “clearly and expressly” rely on waiver as a ground for rejecting any aspect of petitioner‘s ineffective-assistance-of-counsel claim. Michigan v. Long, 463 U.S., at 1041. To be sure, the state court perhaps laid the foundation for such a holding by stating that most of petitionеr‘s allegations “could have been raised [on] direct appeal.” App. 12. Nonetheless, as the Court of Appeals recognized, this statement falls short of an explicit reliance on a state-law ground.13 Accordingly, this reference to state law would not have precluded our addressing petitioner‘s claim had it arisen on direct review. As is now established, it also does not preclude habeas review by the District Court.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE STEVENS, concurring.
In view of my dissent in Michigan v. Long, 463 U.S. 1032, 1065-1072 (1983), it is appropriate to add a few words explaining why there is unique virtue in applying the rule of that case to the problem presented by this case.
My dissent in Michigan v. Long was addressed primarily to two concerns. First, in adopting a presumption favoring the assertion of federal jurisdiction in ambiguous cases, the Court ignored the longstanding and venerated presumption
These concerns, however, are not implicated in a case such as this, in which a federal court, in considering a petition for a writ of habeas corpus, must decide whether a state procedural bar constitutes an adequate and independent state ground for denying relief. As our decisions in Fay v. Noia, 372 U.S. 391, 426-435 (1963), and Wainwright v. Sykes, 433 U.S. 72, 82-84 (1977), make clear, an adequate and independent state ground for decision does not dispossess the federal courts of jurisdiction on collateral review. More significantly, in considering petitions for relief under
JUSTICE O‘CONNOR, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, concurring.
I join the Court‘s opinion and am in general agreement with its decision to apply the “plain statement” rule of Michigan v. Long, 463 U.S. 1032 (1983), to the state courts’ invocation of state procedural default rules. I write separately to emphasize two points. First, I do not read the Court‘s opinion as addressing or altering the well-settled rule that the lower federal courts, and this Court, may properly inquire into the availability of state remedies in determining whether claims presented in a petition for federal habeas corpus have been properly exhausted in the state courts. See Humphrey v. Cady, 405 U.S. 504, 515-517 (1972); Ex parte Hawk, 321 U.S. 114, 118 (1944).
In
The rule requiring that a habeas petitioner exhaust available remedies in state court before seeking review of the same claims via federal habeas corpus serves two important interests. First, its roots lie in the respect which the federal courts owe to the procedures erected by the States to correct constitutional errors, and the confidence that state court
To protect these interests we have held that where a federal habeas petitioner raises a claim which has never been presented in any state forum, a federal court may properly determine whether the claim has been procedurally defaulted under state law, such that a remedy in state court is “unavailable” within the meaning of
A contrary rule would make no sense. It would require a “plain statement” indicating state reliance on a procedural bar where no state court was ever given the opportunity to pass on either the proсedural posture or the merits of the constitutional claim. Moreover, dismissing such petitions
In sum, it is simply impossible to “[r]equir[e] a state court to be explicit in its reliance on a procedurаl default,” ante, at 264, where a claim raised on federal habeas has never been presented to the state courts at all. In such a context, federal courts quite properly look to, and apply, state procedural default rules in making the congressionally mandated determination whether adequate remedies are available in state court.
My second concern stems from the majority‘s references to our decisions in Murray v. Carrier, 477 U.S. 478 (1986), and Smith v. Murray, 477 U.S. 527 (1986). In these decisions, the Court reaffirmed the holding of Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977), that a state prisoner pursuing federal habeas remedies must show both “cause” for a procedural default and “prejudice” flowing from the alleged constitutional violation for a federal court to entertain his claim on the merits despite the existence of an otherwise preclusive state-law ground for decision. In Murray v. Carrier, the Court rejected “a reworking of the cause and prejudice test . . . to
“We remain confident that, for the most part, ‘victims of a fundamental miscarriage of justice will meet the сause-and-prejudice standard.’ But we do not pretend that this will always be true. Accordingly, we think that in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Id., at 495-496 (citation omitted).
At several points in its opinion, the Court refers to a “miscarriage of justice” test to be applied in conjunction with the cause and prejudice inquiry. See ante, at 258, and n. 2; ante, at 259, n. 3; ante, at 262. I do not read the Court‘s opinion as suggesting any alteration of the relationship between the cause and prejudice inquiry and the narrow exception to the cause requirement where a petitioner cannot show cause but can make a strong showing of probable factual innocence. See Smith, supra, at 538-539 (“We similarly reject the suggestion that there is anything ‘fundamentally unfair’ about enforcing procedural default rules in cases devoid of any substantial claim that the alleged error undermined the accuracy of the guilt or sentencing determination“). The operative test is cause and prejudicе; there is a kind of “safety valve” for the “extraordinary case” where a substantial claim of factual innocence is precluded by an inability to show cause. With this understanding, I join the Court‘s opinion.
JUSTICE KENNEDY, dissenting.
This case presents the question whether a federal court may entertain a habeas corpus petition, without a showing of cause and prejudice, if the state court to which the federal
Two premises underlie today‘s holding. First, although the case before us is a federal habeas corpus proceeding, the majority explores whether an ambiguous reference to a state procedural bar would deprive us of jurisdiction in a matter here on direct review. The majority discovers that the rule of Michigan v. Long, 463 U.S. 1032 (1983), designed for cases where a state court explicitly relies on a state substantive ground that appears to be interwoven with federal law, applies as well in any direct review case where there is ambiguity concerning whether the state court intended to rely on a procedural bar. Thus fortified by its enhanced Long rule, the majority turns to the case before us. It stakes out the second premise, which is that direct review and collateral attack cases should be governed by the same rule. The majority therefore concludes that federal habeas courts must apply Long in determining whether a state court‘s reference to a procedural bar triggers the cause-and-prejudice inquiry prescribed by Wainwright v. Sykes, 433 U.S. 72 (1977). Disagreement with each of the majority‘s premises elicits my respectful dissent.
I
It is settled law that “where the judgment of a state court rests upon two grounds, one of which is federal and the other non-federal in character, our jurisdiction fails if the non-federal ground is independent of the federal ground and adequate to support the judgment.” Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935). The rule was first announced to deny our authority to revise state-court judgments resting on an alternative state substantive ground, e. g., Murdock v. City of Memphis, 20 Wall. 590, 636 (1875), and later was extended to bar our direct review of state judgments that rest on ade-
Our discussions of this jurisdictional principle have identified circumstances where state procedural grounds are “inadequate” to support the result below, e. g., Johnson v. Mississippi, 486 U.S. 578, 587-589 (1988); James v. Kentucky, 466 U.S. 341, 348-349 (1984), and where state procedural grounds cannot be deemed “independent” of the underlying federal rights, e. g., Ake v. Oklahoma, 470 U.S. 68, 74-75 (1985). An analogous body of doctrine aids us in assessing the independence of state substantive grounds. See, e. g., Enterprise Irrigation Dist. v. Farmers Mutual Canal Co., 243 U.S. 157, 164 (1917). As might be expected in light of the common history and purposes of these doctrines, there is a significant degree of overlap. Our precedents declare, however, that “it is important to distinguish between state substantive grounds and state procedural grounds,” Henry v. Mississippi, 379 U.S., at 446, and caution against the indiscriminate application of principles developed in cases involving state substantive grounds to cases involving procedural defaults. See id., at 447. See also Wainwright v. Sykes, supra, at 81-82. These well-understood principles ensure our respect for the integrity of state-court judgments.
In Michigan v. Long, supra, we considered our jurisdiction to review a judgment of the Supreme Court of Michigan that had ruled a search unlawful. The state court‘s opinion had relied almost exclusively on federal decisions construing the Fourth Amendment, though it twice cited an analogous state constitutional provision. 463 U.S., at 1043. After a review of our precedents considering whether various forms of references to state law constitute adequate and independent state
Our resolution of these ambiguities in favor of federal review rested on this critical assumption: When the state court‘s judgment contains no plain statement to the effect that federal cases are being used solely as persuasive authority, and when state law is interwoven with federal law, we can “accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.” Id., at 1041 (emphasis added). Our approach, we added, had the further advantage of not requiring us to interpret state laws with which we are generally unfamiliar. Id., at 1039, 1041.
There may be a persuasive argument for applying Long to cases coming to this Court on direct review where the independence of a state procedural ground is in doubt because the state rule is interwoven with federal law. An example would be if “the State has made application of the procedural bar depend on an antecedent ruling of federal law, that is, on the determination of whether federal constitutional error has been committed.” Ake v. Oklahoma, supra, at 75. See also Longshoremen v. Davis, 476 U.S. 380, 388 (1986). But that situation is not presented in the case before us. In Illinois, “a defendant who neglects to raise a claim of inadequate representation on direct appeal may not later assert that claim in a petition for post-conviction relief,” United States ex rel. Devine v. DeRobertis, 754 F.2d 764, 766, and n. 1 (CA7 1985) (collecting cases), though “strict application of [this] doctrine . . . may be relaxed . . . ‘where fundamental fairness so requires.“’ People v. Gaines, 105 Ill. 2d 79, 91, 473 N.E.2d 868, 875 (1984), cert. denied, 471 U.S. 1131 (1985), quoting People v. Burns, 75 Ill. 2d 282, 290, 388 N.E.2d 394, 398
The purported ambiguity in this case is much dissimilar from the ambiguity we confronted in Long.1 In Long “[t]he references to the State Constitution in no way indicat[ed] that the decision below rested on grounds in any way independent from the state court‘s interpretation of federal law,” id., at 1044 (emphasis in original), thus raising the question whether the state court “decided the case the way it did because it believed that federal law required it do so.” Id., at 1041. See also Pennsylvania v. Finley, supra, at 570 (STEVENS, J., dissenting). The question in this case does not remotely implicate the independence of the state-law ground from federal law. The alleged ambiguity in the Illinois Appellate Court‘s opinion relates instead to whether the state ground was invoked at all. The majority does not explain why adopting the Michigan v. Long presumption in this different context is sensible. It seems to me it is not.
Indeed, if the majority‘s aim is to devise a bright-line rule that will explain best the greatest number of similarly ambiguous state-court opinions, it should announce the mirror image of the rule adopted today. It should presume that the procedural bar was invoked unless the state court, by a “plain
It is makeweight and unconvincing, moreover, to justify the majority‘s extension of Michigan v. Long on the basis of our interest in avoiding unnecessary inquiries into “state laws with which we are generally unfamiliar.” Michigan v. Long, supra, at 1039.3 This concern is slight when the state-law ground is procedural rather than substantive. The doctrine of adequacy developed in the context of procedural bars already requires us to conduct extensive reviews of questions of state procedural law in order to determine whether the State‘s “procedural rule is ‘strictly or regularly followed,‘” Johnson v. Mississippi, 486 U. S., at 587, quoting Barr v. Columbia, 378 U. S. 146, 149 (1964), for state courts “may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims.” Hathorn v. Lovorn, 457 U. S. 255, 263 (1982). If this Court is institutionally capable of assessing whether a state procedural rule has been applied “evenhandedly to all similar claims,” it is certainly capable of assessing
The Court sidesteps the obvious difficulties of its new rule by stating that our decision in Caldwell v. Mississippi, 472 U. S. 320 (1985), already held that any ambiguity concerning whether a state court actually relied on a procedural bar “must be resolved by application of the Long standard.” Ante, at 262. It is true that Caldwell addressed the question whether the state court had relied on a procedural bar, and that it referred to Michigan v. Long in indicating, somewhat obliquely, that the lower court opinion did not contain an explicit statement that the decision was based on state law. 472 U. S., at 327. While Caldwell perhaps is not entirely clear on the point, it is difficult to view these statements as announcing conclusively that the Long presumption applies in all cases where there is doubt concerning whether a state court intended to rely on a procedural bar.
In any event, our references to the Long rule in Caldwell were entirely unnecessary to the decision, and the majority‘s uncritical interpretation of Caldwell as controlling authority here is misplaced. In Caldwell two reasons persuaded us to reject the State‘s argument that a procedural bar deprived us of jurisdiction. First, our own review of the state court‘s opinion persuaded us that it could be “read . . . only as meaning that procedural waiver was not the basis of the decision.” Caldwell, supra, at 328 (emphasis added). Because we explicitly found that there was no ambiguity concerning whether the state court intended to rely on the procedural default, our references to Long ought not to be interpreted as requiring that Long be applied in cases where we are faced with such an ambiguity. Second, our opinion in Caldwell noted that Mississippi had not consistently applied
I remain convinced that our reasoning in Michigan v. Long does not extend to a situation where, as here, there is doubt about whether a state court intended to rely on a procedural bar, but where there is no ambiguity, as there was in Long, concerning whether the bar is independent from federal law. Facial ambiguities that relate solely to whether a state court did invoke a procedural bar should not be resolved uncritically in favor of federal review.
II
Even if the majority were correct in concluding that the judgment of the Illinois Appellate Court would have been reviewable in this Court under Michigan v. Long, it errs in concluding that federal habeas review must also be available. The equivalence the majority finds between direct and collateral review appears to be based on two arguments. First, the majority asserts that Wainwright v. Sykes, 433 U. S. 72 (1977), “made clear that the adequate and independent statе ground doctrine applies on federal habeas.” Ante, at 262. Second, the Court argues that the “substantial” benefits of extending Michigan v. Long to the habeas context outweigh any state interests that may be burdened by applying Long in this context. Neither argument is persuasive.
Our decision in Sykes placed some limits on the expansive regime of Fay v. Noia, but reaffirmed that comity and federalism are the principles that control the weight that a federal habeas court should accord to a state procedural default. These constitutional concerns, not some mechanical application of the doctrines governing our appellate jurisdiction, formed the basis for our holding that a state procedural default will preclude federal habeas review unless the applicant shows both cause for failing to comply with the State‘s rule and actual prejudice resulting from the alleged constitutional violation.5 433 U. S., at 84-91. Indeed, the majority‘s re-
Because our decision to honor state procedural defaults in habeas cases is intended “to accord appropriate respect to the sovereignty of the States in our federal system,” Ulster County Court v. Allen, 442 U. S. 140, 154 (1979), any determination that a state court did not intend to rely on a procedural default must be made with the same deference to the State‘s sovereignty that motivates our willingness to honor its procedural rules in the first place. The majority‘s second argument for extending Michigan v. Long to the habeas context seems to acknowledge as much, for at least it purports to be guided by those principles of federalism and comity that until now have informed our analysis. Ante, at 263-265. The majority‘s perfunctory discussion of these principles, however, is inadequate to justify its view that extending Long will burden state interests “minimally, if at all,” ante, at 264, while producing “substantial” benefits. Ibid. These conclusions, in my view, reflect a miserly assessment of the State‘s interest and an extravagant notion of the benefits to be derived from extending Long to habeas cases.
The majority dismisses the State‘s interests by positing that state courts have become familiar with the “plain statement” rule under Long. One may question whether it is not
The majority‘s opinion also reflects little consideration of the perverse incentives created by its holding. Because an ambiguous state-court order will ensure access to a federal habeas forum, prisoners whose claims otherwise would be procedurally barred now have every incentive to burden state courts with a never-ending stream of petitions for postconviction relief. Such perseverance may, in due course, be rewarded with a suitably ambiguous rebuff, perhaps a one-line order finding thаt a prisoner‘s claim “lacks merit” or stating that relief is “denied.” Instead of requiring prisoners to justify their noncompliance with state procedural rules, as contemplated by the cause-and-prejudice standard, the majority‘s decision openly encourages blatant abuse of state-court processes and circumvention of the standard established in Sykes.6
Even assuming that avoidance of state-law questions is now considered an unalloyed blessing as a general matter, those questions cannot be avoided in federal habeas cases. To cite only the most obvious reason, the habeas statute and our decisions preclude habeas relief “unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.”
Our decision in Engle v. Isaac, which the Court strongly reaffirms in this case and in two other cases decided today, ante, at 263, n. 9; Castille v. Peoples, post, p. 346; Teague v. Lane, post, p. 288, thus belies the majority‘s assessment of the benefits of its new rule. Engle also
According to the majority, two different rules will guide the lower courts’ consideration of procedural default issues after today. On the one hand, if a defendant presents his claims to the courts of the State, the majority‘s new rule applies. A federal habeas court faced with an ambiguous state-court opinion may not consult state-law sources to determine whether the state court is authorized to forgive the procedural default, or to decide whether the circumstances in which a default may be overlooked consistent with state law are present in the particular case. On the other hand, if a defendant has never attempted to raise his claim in the courts of the State, Engle applies. A federal habeas court faced with such a case must look to state law to decide whether the petitioner is procedurally barred and whether the state courts are likely to waive his procedural default. The federal court must apply our holding in Wainwright v. Sykes, 433 U. S. 72 (1977), if the court concludes, on the basis of such review, that the state courts would likely refuse to entertain the petitioner‘s claim. Yet it is obvious that Engle and the rule adopted by the majority in this case are based on irreconcilable assumptions about the regularity and predictability of state procedural rules. And it is not difficult to predict that the lower courts, faced with inconsistent pro-
Nothing сould illustrate this point better than the Court‘s decision in Teague v. Lane, supra. The petitioner in Teague, like Harris, failed to raise one of his federal constitutional claims on direct appeal in the Illinois courts. Under the same Illinois procedural rule at issue in the present case, the petitioner in Teague is barred from raising his claim in collateral proceedings unless fundamental fairness requires that his default be overlooked. Speaking for four Members of the Court, JUSTICE O‘CONNOR concludes that the petitioner in Teague has exhausted his state remedies because, in view of the limited scope of the fundamental fairness exception, the Illinois courts clearly would refuse to entertain the merits of his claim in collateral proceedings. For the same reason, the Teague plurality concludes that the petitioner in that case is procedurally barred. Teague v. Lane, supra, at 297-299. Without disagreeing with the plurality‘s conclusion on these logically antecedent issues, JUSTICE WHITE concurs in the judgment disposing of the case on retroactivity grounds. Id., at 317. It appears therefore that five Members of the Court are of the view that it would be entirely futile to remand the case to the Illinois courts because those courts enforce their prоcedural default rules strictly. The majority does not explain, and I fail to see, how this conclusion can possibly be squared with the majority‘s adoption of a conclusive presumption to the contrary in the present case.
In sum, the Court‘s decision to extend Michigan v. Long to the habeas context ignores important state interests that it is our tradition to honor, and advances no significant federal interest. Indeed, the Court‘s new rule works against the important federal interests of avoiding, if possible, decisions on federal constitutional claims, and stemming the overwhelming tide of prisoner petitions. Neither logic nor precedent requires this perverse result.
The Court of Appeals acknowledged that petitioner properly preserved for federal review the claim that his counsel was ineffective in failing to call alibi witnesses. However, the Court of Appeals failed to address the merits of this claim. Nor did the court inquire whether, with respect to those claims that the court determined to be procedurally barred, petitioner could establish cause and prejudice and thus secure federal habeas review. I would vacate the judgment of the Court of Appeals and remand for further consideration of these matters. Because the Court‘s remand goes significantly further, I dissent.