06/03/2002
Each year thousands of criminal defendants across this nation are denied their federal rights as a citizen of the United States.

The privilege of the Great Writ was considered so fundamental in the protection of the rights secured in the Constitution to individual liberty that the founding fathers established the privilege in the First Article of the Constitution. A Petition for Writ of Habeas Corpus is the Great Writ established in English Common Law by the signing of the Magna Carta at sword point by King John of England on June 15, 1216 AD at Runnymede, and adopted into Anglo-American Jurisprudence in Article I, §9, cl. 2 of the Constitution.

"The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public safety may require it."

The United States of America is a Republic. Its citizens hold a dual citizenship. They are a citizen of the State in which they reside, and a citizen of the several States, or, of the United States. That fact affects how the Great Writ is enforced in this nation because the States and the Federal Government, by law, are considered separate sovereign states controlled by a paramount government.

I'm going to teach you a new word (assuming most of you are not attorneys). This new word, if you are ever accused of a crime, is the most important word you will ever know. Then I am going to show you how the implementation of the concept underlying that word by the federal courts deprives prisoners of their rights as a citizen of the United States, deprives them of the privilege of the Great Writ, and is hampering the evolution of justice in the United States
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The word is "comity." Black's Law Dictionary defines comity as:
"Courtesy; complaisance; respect; a willingness to grant a privilege, not as a matter of right, but out of deference and good will. Recognition that one sovereignty allows within its territory to the legislative, executive, or judicial act of another sovereignty, having due regard to the rights of its own citizens. In general, the principle of "comity" is that courts of one state or jurisdiction will give effect to laws and judicial decisions of another state or jurisdiction, not as a matter of obligation, but out of deference and mutual respect."

This "deference" is applicable not just between the States, but also between the federal judiciary and the States when a state criminal conviction is being reviewed in federal court upon Petition for Writ of Habeas Corpus. As explained below, this "deference" can, and often does abrogate and override the Federal Constitutional rights conferred upon the prisoner as a citizen of the United States.

From the concept of comity has evolved both the Exhaustion Doctrine and the Procedural Default Doctrine of Habeas Corpus jurisprudence.

The Exhaustion Doctrine requires that any federal constitutional error, committed in a state criminal conviction, must be "fairly presented" to each available state court of appeal prior to being raised in federal court by way of a Petition for Writ of Habeas Corpus. T0 "fairly present" a claim, the complete "factual basis," and explicit federal constitutional basis, must be raised and argued in each state court, beginning at the trial by "contemporaneous" objection to the error by trial counsel, continuing in the direct appeal as an Assignment of Error, and on discretionary appeal to the State's highest court, again as a separate Assignment of Error. Failure to meet the stringent requirements of the Exhaustion Doctrine in any state court requires the dismissal of the Habeas Corpus, even if only one of 15 errors has not been "exhausted." This dismissal allows the prisoner to go back to state court and file the issue in the proper court, or choose to abandon the error by amending the writ to eliminate it.

Unfortunately, because States place time limits on filings, or, adhere to the doctrine of res judicata, most issues are not amenable to being returned to state courts. Even if they are, the 1996 Anti-Terrorism and Effective Death Penalty Act pushed through Congress by Senators Orrin Hatch and Trent Lott now allows the federal court to dismiss unexhausted claims with prejudice without allowing the prisoner, if able, to return to the state courts to exhaust the claim. The amendments to the Habeas Corpus statutes in that act apply to both death penalty cases and non-death penalty cases.

Res judicata is a doctrine that is imposed beyond its literal definition of "a thing decided." It is enforced to mean, "Could have been, or should have been, raised in the prior proceeding." It is a tool intended to advance the orderly administration of justice and prevent a party from raising numerous separate appeals as to a judgment. In other words, "If you have something to say, say it now and say it all at once in this first appeal, because we will not hear anything you should say now, and don't, at a later date. We will consider it res judicata."

The doctrine has a valid goal. It means to prevent courts from having to re-visit a case continuously as the loser finds new issues that could have been raised on appeal, but which were not raised. It promotes the "finality" of judgments in civil cases. While that may be valid in civil suits, the author questions its application in the criminal context where an individual's right to liberty is at stake. But the states circumvent this legitimate questionablility by labeling all challenges to criminal convictions outside of the first direct appeal (postconviction actions), as "civil" or "quasi-civil" actions. This is a legal fiction since the postconviction attack is directed to challenging a criminal conviction's constitutionality.

The above gives rise, in part, to the second doctrine called the Procedural Default Doctrine. You will not find a definition for the Procedural Default Doctrine in Black's Law Dictionary because it is defined in thousands of cases and not conducive to any one precise definition. To sum up those cases, in the context of a Writ of Habeas Corpus, a procedural default arises if:

1.) There is a failure to meet the requirements of the Exhaustion Doctrine and there is no State Court remedy available either because of time limits expiring, or the doctrine of res judicata preventing the issue from being addressed on the merits by state court;

2.) The defendant's attorney failed to present the error in a manner that enabled the state courts to rule on the merits of the federal constitutional claim.

This includes filing a postconviction action untimely, or presenting the issue as an error of purely state law in the direct appeal, as opposed to claiming it was also a violation of a federal constitutional right. It includes the failure of an appeal attorney to identify and raise an error at all. It includes the failure of the trial attorney to object at the trial to an error, or objecting on the wrong legal basis. It includes a defendant who was forced to raise the error in a postconviction action because the attorney failed to raise it on appeal, and because the defendant could not obtain the transcripts or documents needed to file in time to meet the time deadlines imposed by the state courts, had to file untimely. It includes hundreds of miniscule procedural errors. The outright nit picking encompassed by this rule is essentially indescribable. I can only convey it by example. For instance, one man I know was defaulted both in state court and in federal courts on six serious constitutional violations because he failed to place the trial court number on the first page of his Application to Reopen below the court of appeals case number, even though the trial court case number appeared on every document in the court of appeals file in the case, and even though he immediately filed to correct the error within a week of being informed of it. The United States District Court, the United States Court of Appeals for the Sixth Circuit and the United States Supreme Court dismissed the writ without ever reaching the merits of his claims. I know the errors raised were arguable. I raised them for him. He was transferred to another prison and when I sent him what he needed to have typed and filed, he simply forgot to place the trial court number on the document. His conviction contained serious constitutional flaws that have never, and will never be, be reviewed by any court.

As described by Justice O'Connor in Withrow v. Williams, the Procedural Default Doctrine is a "procedural minefield" of errors that can occur at any stage of a criminal case being litigated in State Courts, any of which will totally preclude federal review of the error and the vindication of federal constitutional rights by a federal court on petition for Writ of Habeas Corpus.

Of all wits filed by State prisoners, the following percentages are dismissed:
1.   57% for failure to exhaust state remedies;
2.   12% for procedural default;
3.   7% for failure to meet court deadlines (this figure has drastically changed since the 1996 AEDPA placed a one-year time limit 
      on writs);
4.   6% for failure to raise cognizable issues (State law issues);
5.   6% for abuse of writ (not raising issue in first writ);
6.   4% on governments Motion to Dismiss;
7.   3% as a "successive" petition (filed same issue twice);
8.   3% as a "successive" petition (filed same issue twice);
9.   1% because issues are "moot" (should be included in expired sentences);
10. 1% are granted on the merits;
11. 1% are remanded to State courts.

See, Department of Justice, Bureau of Justice Statistics, Federal Habeas Corpus Review, Challenging State Court Criminal Convictions, September 1995, No. NCJ-155504, p. 17 (tracking 5,167 habeas cases). The doctrines deriving from the principle of comity has rendered the Great Writ a paper tiger.

Why are there so many technical procedural defaults?

Criminal cases account for a total of 5% of all litigation in the courts of this nation. (Contrary to the representations of Senators Hatch and Lott to Congress when pushing for passage of the AEDPA into law, only a small percentage of the federal court's time is spent on State prisoner's cases). Of all criminal convictions, only 14 out of every 1000 are litigated to the point of a Federal Petition for Writ of Habeas Corpus being filed in the case. Id. Of those 1.4% filed, only 4% are represented by an attorney. 96% of all writs are filed and litigated by the prisoner assisted by a jailhouse lawyer. So in only 4% of 1.4% of 5% of all litigation does an attorney become involved in litigating a Writ of Habeas Corpus. This is because the criminal defendant, if he had any money to begin with, has paid it all for his trial attorney and appeals attorneys, and is financially destitute by the time the case reaches federal court.

As a result, only 28 out of every 1,000,000 cases filed in the Untied States is a Petition for Writ of Habeas Corpus represented by an attorney. Those are almost exclusively death penalty cases. It is extremely rare to find an attorney who has ever litigated a federal Writ of Habeas Corpus and the majority of trial attorneys and appellate attorneys either retained by the defendant, or appointed by the States for indigent defendants, have no personal litigation experience with either the Exhaustion Doctrine or the Procedural Default Doctrine as applied to a Petition for Writ of Habeas Corpus.

This lack of experience results in over 79% of the appeals litigated by these attorneys in the State courts being deficient for purposes of a Federal Writ of Habeas Corpus and the requirements of the Exhaustion and Procedural Default Doctrines.

Most of these attorneys raise the errors in the trials they are appointed to represent as State law errors and fail to raise or preserve the parallel federal constitutional errors arising from those State law errors.

When the defendant arrives in federal court, the federal Judge tells the defendant that a Federal Court does not adjudicate questions of State law, and dismisses the petition under the comity considerations underlying the exhaustion and procedural default doctrines, finding the issues procedurally defaulted. This is done after the State Attorney General invokes the procedural default caused by the State appointing unqualified attorneys to the defendant's State appeal.

Why is this a problem? Because the federal constitutional errors dismissed as being procedurally defaulted are not all-frivolous or minor errors. Some are serious violations of the United States Constitution. But these unconstitutional convictions are allowed to stand uncorrected due to the "comity" policies in effect between the Federal Government and the State governments.

Each year thousands of criminal defendants across this nation are denied their federal rights as a citizen of the Untied States. They are unconstitutionally convicted under State laws and deprived through "Federalism" policies, and the exhaustion and procedural default doctrines giving "deference" to the State procedural rules over the substance of the constitutional violation. Most distressing is that many of these procedural defaults are in actuality created by the State to begin with and totally beyond the control of the defendant. See, Ohio Legal Notes: From The Front Line, The Challenger, June 2001 (withholding of transcripts from prisoners causes State procedural defaults); Ohio Legal Notes: From The Front Line, web column, July 2001 (unqualified court appointed attorneys cause convictions of innocent defendants).

We are either one nation ruled by law administered equally and fairly to all citizens accused of crimes, or we are 50 separate judicial sovereigns who administer equal justice only to those criminal defendants blessed with the luck of the draw that appoints an attorney to them who has previously litigated habeas actions and knows what is required by the Exhaustion and Procedural Default Doctrines. If we are to be one nation then justice must be administered both fairly and equally. As stated in Matthews v. Eldrige, by the Supreme Court, a defendant's interest in liberty and the State's interest in the correctness of criminal adjudication's overlap, minimizing the States interest in the finality of an unconstitutional conviction.

The policies of comity which gave rise to the exhaustion and procedural default doctrines, as they are presently being enforced, are abrogating the rights of the citizens of the United States to be free from unconstitutional convictions and having the secondary effect of preventing the evolution of the laws of this nation.

If unconstitutional State convictions are allowed to continue to remain uncorrected, then the government officials who caused the constitutional errors to occur have no incentive not to repeat those errors in future trials.

Substantive errors of constitutional magnitude cannot continue to be swept under the carpet by dismissing them on technical procedural grounds. Just as criminal defendants are no longer able to receive reversals on technical errors committed by the government in their cases, and those technical reversals have been done away with regardless of what you are told, the States should not be allowed to get away with violating the United States Constitution by hiding those violations behind technical procedural defaults and technical dismissals of those constitutional errors.

Substance over procedure, or as it is called, "adjective law," is what the fundamental concepts of fairness and equity between the government and its citizens require. Until the technical playing field is leveled, countless unconstitutional convictions will remain the norm and the law will continue to stagnate in 18th Century concepts designed to protect the status quo of those in power at the cost go individual liberty and truth.