Edwards v. Carpenter, 529 U.S. 446, 12 (2000)

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Cite as: 529 U. S. 446 (2000)

Breyer, J., concurring in judgment

effective assistance") for not following the state procedural rule that happened itself independently to constitute a violation of the Federal Constitution. After all, were the prisoner to prove his claim (i. e., show "ineffective assistance"), the State might want to take action first. Ordinary exhaustion rules assure States an initial opportunity to pass upon claims of violation of the Federal Constitution. Why should a State not have a similar opportunity in this situation? As the Carrier Court pointed out, it would be "anomalous" for a federal habeas court to "adjudicat[e] an unexhausted constitutional claim for which state court review might still be available." Ibid.

The anomaly disappears, however, once the prisoner has exhausted his "ineffective-assistance" claim (which appeared in the guise of a "cause"). And there is no other anomaly that requires the majority's result. Once a claim of ineffective assistance of counsel has been exhausted—either through presentation in the state courts or through procedural default—there is no difference between that claim and any other claim of "cause" for the prisoner's original procedural default. The federal habeas court is no longer in the "anomalous position" of considering as cause an independent claim that might yet be considered by the state courts, for there is no longer any possibility that the state courts will consider the claim. There is thus no more reason to hold that procedural default of an ineffective-assistance claim bars the prisoner from raising that ineffective-assistance claim as a "cause" (excusing a different procedural default asserted as a bar to a basic constitutional claim) than there is to bar any other claim of "cause" on grounds of procedural default. The majority creates an anomaly; it does not cure one.

The added complexity resulting from the Court's opinion is obvious. Consider a prisoner who wants to assert a federal constitutional claim (call it FCC). Suppose the State asserts


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