Edwards v. Carpenter, 529 U.S. 446, 13 (2000)

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Breyer, J., concurring in judgment

as a claimed "adequate and independent state ground" the prisoner's failure to raise the matter on his first state-court appeal. Suppose further that the prisoner replies by alleging that he had "cause" for not raising the matter on appeal (call it C). After Carrier, if that alleged "cause" (C) consists of the claim "my attorney was constitutionally ineffective," the prisoner must have exhausted C in the state courts first. And after today, if he did not follow state rules for presenting C to the state courts, he will have lost his basic claim, FCC, forever. But, I overstate. According to the opinion of the Court, he will not necessarily have lost FCC forever if he had "cause" for not having followed those state rules (i. e., the rules for determining the existence of "cause" for not having followed the state rules governing the basic claim, FCC) (call this "cause" C*). Ante, at 453. The prisoner could therefore still obtain relief if he could demonstrate the merits of C*, C, and FCC.

I concede that this system of rules has a certain logic, indeed an attractive power for those who like difficult puzzles. But I believe it must succumb to this question: Why should a prisoner, who may well be proceeding pro se, lose his basic claim because he runs afoul of state procedural rules governing the presentation to state courts of the "cause" for his not having followed state procedural rules for the presentation of his basic federal claim? And, in particular, why should that special default rule apply when the "cause" at issue is an "ineffective-assistance-of-counsel" claim, but not when it is any of the many other "causes" or circumstances that might excuse a failure to comply with state rules? I can find no satisfactory answer to these questions.

I agree with the majority, however, that this case must be returned to the Court of Appeals. Although the prisoner's "ineffective-assistance" claim is not barred, he still must prove that the "assistance" he received was "ineffective" (or some other "cause"). And, if he does so, he still must prove his basic claim that his trial violated the Federal Con-

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