REED ET AL. v. ROSS
No. 83-218
Supreme Court of the United States
Argued March 27, 1984—Decided June 27, 1984
Richard N. League, Special Deputy Attorney General of North Carolina, argued the cause for petitioners. With him on the brief was Rufus L. Edmisten, Attorney General.
Edwin Kneedler argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, John H. Garvey, and Louis M. Fischer.
Barry Nakell, by appointment of the Court, 464 U. S. 1036, argued the cause and filed a brief for respondent.
In March 1969, respondent Daniel Ross was convicted of first-degree murder in North Carolina and sentenced to life imprisonment. At trial, Ross had claimed lack of malice and self-defense. In accordance with well-settled North Carolina law, the trial judge instructed the jury that Ross, the defendant, had the burden of proving each of these defenses. Six years later, this Court decided Mullaney v. Wilbur, 421 U. S. 684 (1975), which struck down, as violative of due process, the requirement that the defendant bear the burden of proving lack of malice. Id., at 704. Two years later, Hankerson v. North Carolina, 432 U. S. 233 (1977), held that Mullaney was to have retroactive application. The question presented in this case is whether Ross’ attorney forfeited Ross’ right to relief under Mullaney and Hankerson by failing, several years before those cases were decided, to raise on appeal the unconstitutionality of the jury instruction on the burden of proof.
I
A
In 1970, this Court decided In re Winship, 397 U. S. 358, the first case in which we directly addressed the constitutional foundation of the requirement that criminal guilt be established beyond a reasonable doubt. That case held that “[l]est there remain any doubt about the constitutional stature of the reasonable-doubt standard, . . . the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id., at 364.
Five years after Winship, the Court applied the principle to the related question of allocating burdens of proof in a criminal case. Mullaney v. Wilbur, supra. Mullaney arose in the context of a Maine statute providing that “[w]hoever unlawfully kills a human being with malice aforethought, either express or implied, is guilty of murder and
Finally, Hankerson v. North Carolina, supra, held that Mullaney was to have retroactive application. In reaching this conclusion, the Court followed Ivan V. v. City of New York, 407 U. S. 203 (1972), which had held that Winship was retroactively applicable. Quoting Ivan V. and Winship, the Court stated:
“The [reasonable-doubt] standard provides concrete substance for the presumption of innocence—that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law’ . . . . ‘Due process commands that no
man shall lose his liberty unless the Government has borne its burden of . . . convincing the factfinder of his guilt.’ To this end, the reasonable-doubt standard is indispensable, for it ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.’ ” Hankerson, supra, at 241 (quoting Ivan V., supra, at 204-205 (quoting Winship, supra, at 363-364)).
Hankerson further stated that, regardless of the administrative costs involved in the retroactive application of a new constitutional doctrine, “[w]here the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule [is] given complete retroactive effect.” 432 U. S., at 243 (quoting Ivan V., supra, at 204) (emphasis in original). In this case, we are called upon again, in effect, to revisit our decision in Hankerson with respect to a particular set of administrative costs—namely, the costs imposed on state courts by the federal courts’ exercise of their habeas corpus jurisdiction under
B
Ross was tried for murder under the same North Carolina burden-of-proof law that gave rise to Hankerson‘s claim in Hankerson v. North Carolina.3 That law, followed in
“[W]hen it is established by a defendant‘s judicial admission, or the State proves beyond a reasonable doubt that the defendant intentionally inflicted a wound upon the deceased with a deadly weapon which proximately caused death, the law raises two presumptions against the defendant: (1) the killing was unlawful, and (2) it was done with malice. Nothing else appearing in the case the defendant would be guilty of murder in the second degree. When these presumptions arise the burden devolves upon the defendant to prove to the satisfaction of the jury the legal provocation which will rob the crime of malice and reduce it to manslaughter or which will excuse the killing altogether on the ground of self-defense. If the defendant rebuts the presumption of malice only, the presumption that the killing was unlawful remains, making the crime manslaughter.”
In accordance with this well-settled state law, the jury at Ross’ trial was instructed as follows:
“[I]n a case where a person is killed as a result of a gun shot wound fired intentionally . . . where the State has satisfied you beyond a reasonable doubt that the defendant intentionally assaulted the deceased with a deadly weapon and that such assault caused her death there are two presumptions that arise in favor of the State: One,
On the basis of these instructions, Ross was convicted of first-degree murder. Although Ross appealed his conviction to the North Carolina Supreme Court on a number of grounds, In re Burrus, 275 N. C. 517, 169 S. E. 2d 879 (1969), he did not challenge the constitutionality of these instructions—we may confidently assume this was because they were sanctioned by a century of North Carolina law and because Mullaney was yet six years away.4
Ross challenged the jury instructions for the first time in 1977, shortly after this Court decided Hankerson. He initially did so in a petition filed in state court for postconviction relief, where his challenge was summarily rejected at both the trial and appellate levels. See App. to Brief for Petitioners A3-A8. After exhausting his state remedies, Ross brought the instant federal habeas proceeding in the United States District Court for the Eastern District of North
II
A
Our decisions have uniformly acknowledged that federal courts are empowered under
On the other hand, there is the State‘s interest in the integrity of its rules and proceedings and the finality of its judgments, an interest that would be undermined if the federal courts were too free to ignore procedural forfeitures in state court. The criminal justice system in each of the 50 States is structured both to determine the guilt or innocence of defendants and to resolve all questions incident to that determination, including the constitutionality of the procedures leading up to the verdict. Each State‘s complement of procedural rules facilitates this complex process, channeling, to the extent possible, the resolution of various types of questions to the stage of the judicial process at which they can be resolved most fairly and efficiently.
North Carolina‘s rule requiring a defendant initially to raise a legal issue on appeal, rather than on postconviction review, performs such a function. It affords the state courts the opportunity to resolve the issue shortly after trial, while evidence is still available both to assess the defendant‘s claim and to retry the defendant effectively if he prevails in his appeal. See Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 147 (1970). This type of rule promotes not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and
Where, as in this case, a defendant has failed to abide by a State‘s procedural rule requiring the exercise of legal expertise and judgment, the competing concerns implicated by the exercise of the federal court‘s habeas corpus power have come to be embodied in the “cause and prejudice” requirement: When 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.” Engle v. Isaac, 456 U. S., at 129; Wainwright v. Sykes, 433 U. S. 72 (1977). See id., at 91-94 (BURGER, C. J., concurring); id., at 94-95 (STEVENS, J., concurring). Cf. id., at 98-99 (WHITE, J., concurring in judgment).7 We therefore turn to the question whether the cause-and-prejudice test was met in this case.
As stated above, petitioners have conceded that Ross suffered “actual prejudice” as a result of the trial court‘s instruction imposing on him the burden of proving self-defense or lack of malice. 704 F. 2d, at 707. At trial, Ross testified that he had been stabbed in the neck immediately prior to the shooting for which he was convicted and that when he felt the stab wound he “turned around shooting.” App. 18. In corroboration of this testimony, another witness stated that Ross was bleeding from the neck when Ross left the scene of the shooting. Therefore, were it not for the fact that Ross was required to bear the burden of proving lack of malice and self-defense, he might not have been convicted of first-degree murder. Thus the only question for decision is whether there was “cause” for Ross’ failure to raise the Mullaney issue on appeal.8
The Court of Appeals held that there was cause for Ross’ failure to raise the Mullaney issue on appeal because of the
Engle v. Isaac, supra, left open the question whether the novelty of a constitutional issue at the time of a state-court proceeding could, as a general matter, give rise to cause for defense counsel‘s failure to raise the issue in accordance with applicable state procedures. Id., at 131. Today, we answer that question in the affirmative.
Because of the broad range of potential reasons for an attorney‘s failure to comply with a procedural rule, and the virtually limitless array of contexts in which a procedural default can occur, this Court has not given the term “cause” precise content. See Wainwright v. Sykes, supra, at 87. Nor do we attempt to do so here. Underlying the concept of cause, however, is at least the dual notion that, absent exceptional circumstances, a defendant is bound by the tactical decisions of competent counsel, Wainwright v. Sykes, supra, at 91, and n. 14; Henry v. Mississippi, 379 U. S. 443, 451 (1965), and that defense counsel may not flout state procedures and then turn around and seek refuge in federal court from the consequences of such conduct, Wainwright v. Sykes, supra, at 89-90; Engle v. Isaac, supra, at 130. A defense
On the other hand, the cause requirement may be satisfied under certain circumstances when a procedural failure is not attributable to an intentional decision by counsel made in pursuit of his client‘s interests. And the failure of counsel to raise a constitutional issue reasonably unknown to him is one situation in which the requirement is met.10 If counsel has no reasonable basis upon which to formulate a constitutional
Counsel‘s failure to raise a claim for which there was no reasonable basis in existing law does not seriously implicate any of the concerns that might otherwise require deference to a State‘s procedural bar. Just as it is reasonable to assume that a competent lawyer will fail to perceive the possibility of raising such a claim, it is also reasonable to assume that a court will similarly fail to appreciate the claim. It is in the nature of our legal system that legal concepts, including constitutional concepts, develop slowly, finding partial acceptance in some courts while meeting rejection in others. Despite the fact that a constitutional concept may ultimately enjoy general acceptance, as the Mullaney issue currently does, when the concept is in its embryonic stage, it will, by hypothesis, be rejected by most courts. Consequently, a rule requiring a defendant to raise a truly novel issue is not likely to serve any functional purpose. Although there is a remote possibility that a given state court will be the first to discover a latent constitutional issue and to order redress if the issue is properly raised, it is far more likely that the court will fail to appreciate the claim and reject it out of hand. Raising such a claim in state court, therefore, would not promote either the fairness or the efficiency of the state criminal justice system. It is true that finality will be disserved if the federal courts reopen a state prisoner‘s case, even to review claims that were so novel when the cases were in state court that no one would have recognized them. This Court has never held, however, that finality, standing alone, provides a sufficient reason for federal courts to compromise their protection of constitutional rights under
In addition, if we were to hold that the novelty of a constitutional question does not give rise to cause for counsel‘s
“If novelty were never cause, counsel on appeal would be obliged to raise and argue every conceivable constitutional claim, no matter how far fetched, in order to preserve a right for post-conviction relief upon some future, unforeseen development in the law. Appellate courts are already overburdened with meritless and frivolous cases and contentions, and an effective appellate lawyer does not dilute meritorious claims with frivolous ones. Lawyers representing appellants should be encouraged to limit their contentions on appeal at least to those which may be legitimately regarded as debatable.” 704 F. 2d, at 708.
Accordingly, we hold that where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures. We therefore turn to the question whether the Mullaney issue, which respondent Ross has raised in this action, was sufficiently novel at the time of the appeal from his conviction to excuse his attorney‘s failure to raise it at that time.
C
As stated above, the Court of Appeals found that the state of the law at the time of Ross’ appeal did not offer a “reason-
This case is covered by the third category. At the time of Ross’ appeal, Leland v. Oregon, 343 U. S. 790 (1952), was the primary authority addressing the due process constraints upon the imposition of the burden of proof on a defendant in a criminal trial. In that case, the Court held that a State may require a defendant on trial for first-degree murder to bear the burden of proving insanity beyond a reasonable doubt, despite the fact that the presence of insanity might tend to imply the absence of the mental state required to support a conviction. See id., at 806 (Frankfurter, J., dissenting). Leland thus confirmed “the long-accepted rule . . . that it was constitutionally permissible to provide that various affirmative defenses were to be proved by the defendant,” Patterson v. New York, 432 U. S. 197, 211 (1977), and arguably sanctioned the practice by which a State crafts an affirmative defense to shift to the defendant the burden of disproving an essential element of a crime. As stated above, North Carolina had consistently engaged in this practice with respect to the defenses of lack of malice and self-defense for over a century. See supra, at 5-7. Indeed, it was not until five years after Ross’ appeal that the issue first surfaced in the North Carolina courts, and even then it was rejected out of hand. State v. Sparks, 285 N. C. 631, 643-644, 207 S. E. 2d 712, 719 (1974). See also State v. Wetmore, 287 N. C. 344, 353-354, 215 S. E. 2d 51, 56-57 (1975); State v. Harris, 23 N. C. App. 77, 79, 208 S. E. 2d 266, 268 (1974).
Moreover, prior to Ross’ appeal, only one Federal Court of Appeals had held that it was unconstitutional to require a defendant to disprove an essential element of a crime for which he is charged. Stump v. Bennett, 398 F. 2d 111 (CA8 1968). Even that case, however, involved the burden of proving an alibi, which the Court of Appeals described as the “den[ial of] the possibility of [the defendant‘s] having commit-
In Engle v. Isaac, 456 U. S. 107 (1982), this Court reached the opposite conclusion with respect to the failure of a group of defendants to raise the Mullaney issue in 1975. That case differs from this one, however, in two crucial respects. First, the procedural defaults at issue there occurred five years after we decided Winship, which held that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Winship, 397 U. S., at 364. As the Court in Engle v. Isaac stated, Winship “laid the basis for [the habeas petitioners‘] constitutional claim.” 456 U. S., at 131. Second, during those five years, “numerous courts agreed that the Due Process Clause requires the prosecution to bear the burden of disproving certain affirmative defenses” (footnotes omitted). See id., at 132, n. 40 (citing cases). Moreover, as evidence of the reasonableness of the legal basis for raising the Mullaney issue in 1975, Engle v. Isaac emphasized that “dozens of defendants relied upon [Winship] to challenge the constitutionality of rules requiring them to bear a burden of
III
We therefore conclude that Ross’ claim was sufficiently novel in 1969 to excuse his attorney‘s failure to raise the Mullaney issue at that time. Accordingly, we affirm the decision of the Court of Appeals with respect to the question of “cause.”12
It is so ordered.
JUSTICE POWELL, concurring.
I join the opinion and judgment of the Court. I write separately only to make clear that I continue to adhere to the views expressed in my concurring opinion in Hankerson v. North Carolina, 432 U. S. 233, 246-248 (1977).
In Hankerson, I agreed with the Court that the new constitutional rule announced in Mullaney v. Wilbur, 421 U. S. 684 (1975), should apply retroactively to cases on direct review. In this case, the rule of Mullaney has been applied retroactively on collateral review. For the reasons stated by Justice Harlan in Mackey v. United States, 401 U. S. 667, 675-702 (1971) (separate opinion), I would apply new constitutional rules retroactively on collateral review only in exceptional cases. See Hankerson, supra, at 247-248 (POWELL, J., concurring). The State, however, has not challenged the retroactive application of Mullaney in this case. Thus, the issue whether that retroactive application is proper has not been presented to this Court.
Assuming, as we must, that Mullaney may be applied retroactively in this case, and for the reasons set forth in the Court‘s opinion today, I agree that Ross has shown “cause” for failing to raise his constitutional claim in a timely fashion.
Today‘s decision will make less sense to laymen than it does to lawyers. Respondent Ross was convicted of first-degree murder in a North Carolina trial court in 1969. In 1977, eight years later, he instituted the present federal habeas action seeking to have his conviction set aside on the ground that an instruction given by the trial judge improperly placed upon him, rather than on the State, the burden of proving the defenses of “lack of malice” and “self-defense.” Today, 15 years after the trial, the Court holds that Ross’ conviction must be nullified on federal constitutional grounds. Responding to the State‘s contention that Ross never raised any objection to the instruction given by the trial judge, and that North Carolina law requires such an objection, the Court blandly states that no competent lawyer in 1969 could have expected that such an objection would have been sustained, because the law was to the contrary. Consequently, we have the anomalous situation of a jury verdict in a case tried properly by then-prevailing constitutional standards being set aside because of legal developments that occurred long after the North Carolina conviction became final.
Along its way to this troubling result, the Court reaffirms the importance of the principles of comity and orderly administration of justice that underlie our decisions in such cases as Wainwright v. Sykes, 433 U. S. 72 (1977). It fully concedes the application of these principles on federal habeas review through the “cause and prejudice” standard adopted in Wainwright v. Sykes. Ante, at 11.1 The Court‘s seemingly
The District Court in this case held that respondent failed to satisfy the “cause” standard of Wainwright v. Sykes, and thus, his claims were barred by the State‘s procedural default rule, which required him to at least raise the issue on direct appeal. Like the Court of Appeals, the Court proposes to adopt “novelty” as a possible form of “cause” under Wainwright v. Sykes to justify ignoring the State‘s procedural default rule. But this equating of novelty with cause pushes the Court into a conundrum which it refuses to recognize. The more “novel” a claimed constitutional right, the more unlikely a violation of that claimed right undercuts the fundamental fairness of the trial. To untie this knot in logic, the Court proposes a definition of novelty that makes a claim novel if the legal basis for asserting the claim is not reasonably available. Ante, at 15-16. This standard, of course, has no meaningful content independent of the factual setting in which it is applied. The Court‘s attempt to give content to this novelty standard, however, is simply too facile; under its application, virtually any new constitutional claim can be deemed “novel.”
The starting point for the Court‘s evaluation of respondent‘s novelty claim should be our decision in In re Winship, 397 U. S. 358 (1970), which initiated a line of cases culminating, one would hope, in Sandstrom v. Montana, 442 U. S. 510 (1979). The Court in Winship held that the Due Process Clause of the Constitution required the State to prove the elements of a crime “beyond a reasonable doubt.” But the only issue in Winship that was treated as novel was whether
“Expressions in many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required.” 397 U. S., at 362.
In short, just a year after respondent‘s conviction, this Court regarded as well established the principle that in an adult trial the State was constitutionally required to bear the burden of proof as to “every fact necessary to constitute the crime . . . charged.” Id., at 364.
Our decision in Winship was held fully retroactive in Ivan V. v. City of New York, 407 U. S. 203 (1972). Three years later, in Mullaney v. Wilbur, 421 U. S. 684 (1975), we held that it was contrary to our Winship decision to require a defendant in a murder prosecution to prove that he acted in the heat of passion or sudden provocation in order to reduce the offense to manslaughter. The Court held that the constitutional interests described in Winship were “implicated to a greater degree in this case than they were in Winship itself.” 421 U. S., at 700.
The Mullaney decision was given retroactive effect in Hankerson v. North Carolina, supra. In reaching this decision, however, the Court dealt with the State‘s argument that retroactive application of Mullaney v. Wilbur would have a serious, adverse impact on the administration of justice in this country because of the number of potential retrials that might be required, by reaffirming the principles enunciated in Ivan V. and by stating:
“Moreover, we are not persuaded that the impact on the administration of justice in those States that utilize the
If North Carolina took any solace from this Court‘s explicit statement in Hankerson that North Carolina need not worry about having to retry murders so long as it applied a contemporaneous-objection rule, today‘s opinion shows that its reliance was quite unjustified. The Court today does a complete about-face from Hankerson and, without even mentioning the above-quoted language, holds that the state court may not bar the belated assertion of such a claim by application of a contemporaneous-objection rule. The Court goes on to conclude that the claim based upon the allocation of proof in the instructions was “novel” in 1969, because the leading case on point at that time was Leland v. Oregon, 343 U. S. 790 (1952), which held that the State might require a defendant to bear the burden of proving affirmative defenses. But the holding of Leland was reaffirmed in Patterson v. New York, 432 U. S. 197 (1977), indicating that our decision in Leland did not speak directly to the issues involved in Mullaney v. Wilbur. Further, far from being regarded as the “leading case” on the subject in 1969, Leland v. Oregon was only mentioned as one of a number of cases in a string citation for the general proposition approved in Winship. 397 U. S., at 362.
We are reduced by this bizarre line of reasoning to the following conclusions: Winship, decided in 1970, simply reaffirmed a long line of existing cases when it held that the burden of proof as to the elements of the crime must be borne by the State “beyond a reasonable doubt“; and Mullaney v. Wilbur, decided in 1975, considered this principle even more
But, it seems, lawyers are not required to reason in quite the same manner as judges do. A lawyer in North Carolina, one year before Winship announced that the constitutional requirement of proof beyond a reasonable doubt had been long settled in the law, had no “reasonable basis” upon which to challenge the jury instructions given by the North Carolina trial court in this case. Either one or the other of these modes of reasoning, it seems to me, must be wrong.
I would conclude that there was an adequate basis for raising an objection in this case, and that the State‘s interests in the finality of its judgments require an attorney to raise an objection when an instruction violates a constitutional requirement of the allocation of burden of proof which this Court held one year later had been long settled. I would reverse the judgment of the Court of Appeals.
Notes
I cannot imagine a clearer basis than Stump for asserting the claim upon which respondent ultimately prevailed in the Fourth Circuit.
Stump was decided on June 27, 1968; by November 13, 1968, the Connecticut court in State v. Nales relied upon Stump to strike down the conviction in that case. 28 Conn. Supp., at 31, 248 A. 2d, at 244. Respondent‘s conviction came in March of the following year, which certainly is enough time to find that the legal basis for making his claim was reasonably available to him.
Respondent argues that the North Carolina procedural bar is inapplicable in this case because the North Carolina Supreme Court considered the merits of his Mullaney claim both on appeal and on postconviction review, despite his procedural default. Engle v. Isaac, 456 U. S. 107, 135, n. 44 (1982). See Brief for Respondent 2-5. With respect to the former, respondent bases his argument on the fact that the North Carolina Supreme Court stated generally that it had “examined the [jury] charge and conclude[d that] it is in accordance with legal requirements and is unobjectionable.” State v. Ross, 275 N. C. 550, 554, 169 S. E. 2d 875, 878 (1969). With respect to postconviction review, respondent argues that the failure of the North Carolina courts to rely explicitly on procedural grounds in summarily dismissing his petition indicates that they considered the merits of his constitutional claim. See App. to Brief for Petitioners A5, A8. Although the Court of Appeals stated that “[t]he claim of waiver is not without some support,” 704 F. 2d, at 707, it did not reach the question. Similarly, in light of our disposition of this case on the basis of respondent‘s primary argument, we need not address the question.
In addition, respondent argues that the District Court erred in imposing a forfeiture, both because the North Carolina courts have been inconsistent in imposing the State‘s procedural bar for the failure to raise the burden-of-proof issue before Mullaney and because North Carolina law does not require a forfeiture for every procedural default. Brief for Respondent 5-10, 41. We also need not address this issue.
The situation of a defendant representing himself, see Faretta v. California, 422 U. S. 806 (1975), is not presented in this case and we express no view on the applicability of the cause-and-prejudice requirement in that context.