Edwards v. Carpenter, 529 U.S. 446, 11 (2000)

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Breyer, J., concurring in judgment

If I could stop here, the rules would be complicated, but still comprehensible. The federal habeas judge would look to state law and state practice to determine the facts and circumstances surrounding a state procedural rule that the State claims is an "adequate and independent state ground." However, the federal judge would determine the adequacy of that "state ground" as a matter of federal law.

Unfortunately, the rules have become even more complex. In Carrier, the Court considered a prisoner's contention that he had "cause" for failing to follow a state procedural rule—a rule that would have barred his federal claim. The "cause," in the prisoner's view, was that his lawyer (who had failed to follow the state procedural rule) had performed inadequately. This Court determined, as a matter of federal law, that only a performance so inadequate that it violated the defendant's Sixth Amendment right to effective assistance of counsel could amount to "cause" sufficient to overcome a "procedural default." Id., at 488-489. That being so, the Court reasoned, the prisoner should have to exhaust the ineffectiveness claim in state court. The Court wrote:

"[I]f a petitioner could raise his ineffective assistance claim for the first time on federal habeas in order to show cause for a procedural default, the federal habeas court would find itself in the anomalous position of adjudicating an unexhausted constitutional claim for which state court review might still be available." Id., at 489.

And today the Court holds not only that the prisoner must exhaust this claim by presenting it to the state courts, but also that his failure to do so properly, i. e., a failure to comply with the State's rules for doing so, bars that prisoner from ever asserting that claim as a "cause" for not having complied with state procedural rules.

The opinion in Carrier raises a special kind of "exhaustion" problem. The Court considered a type of "cause" ("in-

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