Murray v. Carrier
Decided on June 26,1986; 477 U.S. 478

Convicted rapist files habeas corpus petition claiming he was denied due process


A. Issues Discussed: Criminal Justice (procedure), 6th Amendment, 14th Amendment 

B. Legal Question Presented:

Did the federal habeas petitioner show cause for a procedural default by establishing that competent defense counsel inadvertently failed to raise the substantive claim of error rather than deliberately withholding it for tactical reasons?


A. Background:

Respondent Clifford Carrier was convicted of rape and abduction by a Virginia jury in 1977. Before trial, the presiding judge denied Carrier's court-appointed attorney pre-trial motions to examine the victim's statements describing her assailants, respondent's vehicle, and the location of the alleged rape. The presiding judge denied the requests based on his determination that the evidence did not contain exculpatory evidence.

After Carrier was convicted, his attorney filed a notice of appeal to the Virgina Supreme Court citing seven errors with the judge's ruling refusing Carrier's request to examine the victim's statement to the police. However, without consulting Carrier, his attorney subsequently submitted the required petition but did not include all seven errors. The Virgina Supreme Court refused the appeal on this procedural basis and denied certiorari.

Carrier then filed a state habeas corpus petition, in pro se, claiming that he was denied due process of law by the prosecution's withholding of the victim's statements. The Virgina Supreme Court denied Carrier's petition based on the State's argument that Carrier could not present his due process claim because his attorney did not raise that claim in his first appeal.

Carrier then filed a petition in the District Court for the Eastern District of Virgina renewing his due process claim as grounds for relief. Like the Virgina Supreme Court, the District Court denied Carrier's due process claim and stated that he should establish cause for the procedural default (lack of fifth error) in the state court.

The Court of Appeals reversed, holding that Carrier can establish cause with the district court if the "failure to object or to appeal his claim was the product of attorney ignorance or oversight and not deliberate tactic." Accordingly, the Court of Appeals remanded to the District Court to resolve the question of respondent's counsel's motivation for failing to appeal the due process claim.

On appeal by the state, the US Supreme Court granted certiorari to review the case.

B. Counsel of Record:
Opposing Side
Sherman L. Cohn, by appointment of the Court, argued the cause for respondent. With him on the brief was Steven H. Goldblatt. Jerry P. Slonaker, Senior Assistant Attorney General of Virginia, argued the cause for petitioner. With him on the briefs were William G. Broaddus, Attorney General, and Donald R. Curry, Assistant Attorney General.
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Larry W. Yackle, Charles S. Sims, and Burt Neuborne filed a brief for the American Civil Liberties Union et al., urging affirmance.
Deputy Solicitor General Frey argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Fried, Assistant Attorney General Trott, Edwin S. Kneedler, and Kathleen A. Felton.

Briefs of amici curiae urging reversal were filed for the State of Idaho et al. by James Thomas Jones, Attorney General of Idaho, and Lynn E. Thomas, Solicitor General; Charles A. Graddick, Attorney General of Alabama; Harold M. Brown, Attorney General of Alaska; Robert K. Corbin, Attorney General of Arizona; John Steven Clark, Attorney General of Arkansas; Duane Woodward, Attorney General of Colorado; John J. Kelley, Chief State's Attorney of Connecticut; Charles M. Oberly, Attorney General of Delaware; Michael J. Bowers, Attorney General of Georgia; Richard Opper, Attorney General of Guam; Corinne K.A. Watanabe, Attorney General of Hawaii;  Neil F. Hartigan, Attorney General of Illinois; Linley E. Pearson, Attorney General of Indiana; Robert T. Stephan, Attorney General of Kansas; David L. Armstrong, Attorney General of Kentucky; William J. Guste, Jr., Attorney General of Louisiana; Stephen H. Sachs, Attorney General of Maryland; Francis X. Bellotti, Attorney General of Massachusetts;  Frank J. Kelley, Attorney General of Michigan; Edwin L. Pittman, Attorney General of Mississippi; William L. Webster, Attorney General of Missouri; Mike Greely, Attorney General of Montana; Robert M. Spire, Attorney General of Nebraska; Brian McKay, Attorney General of Nevada; Stephen E. Merrill, Attorney General of New Hampshire; Irwin I. Kimmelman, Attorney General of New Jersey; Paul Bardacke, Attorney General of New Mexico; Lacy H. Thornburg, Attorney General of North Carolina; Nicholas Spaeth, Attorney General of North Dakota; Anthony J. Celebrezze, Jr., Attorney General of Ohio; Michael Turpen, Attorney General of Oklahoma; LeRoy S. Zimmerman, Attorney General of Pennsylvania; Hector Rivera Cruz, Attorney General of Puerto Rico; Arlene Violet, Attorney General of Rhode Island; T. Travis Medlock, Attorney General of South Carolina; Mark V. Meierhenry, Attorney General of South Dakota; W.J. Michael Cody, Attorney General of Tennessee; Jim Mattox, Attorney General of Texas; David L. Wilkinson, Attorney General of Utah; Jeffrey Amestoy, Attorney General of Vermont; Victor D. Schneider, Acting Attorney General of The Virgin Islands; William B. Broaddus, Attorney General of Virginia; Kenneth O. Eikenberry, Attorney General of Washington; Charlie Brown, Attorney General of West Virginia; Bronson C. La Follette, Attorney General of Wisconsin; and Archie G. McClintock, Attorney General of Wyoming; for the State of Florida by Jim Smith, Attorney General, and Raymond L. Marky and Gregory G. Costas, Assistant Attorneys General; and for the Legal Foundation of America et al. by Susan Crump, David Crump, and James P. Manak.


"...[T]he thrust of this part of our decision in Engle is unmistakable: the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.  At least with respect to defaults that occur at trial, the Court of Appeals' holding that ignorant or inadvertent attorney error is cause for any resulting procedural default is plainly inconsistent with Engle. It is no less inconsistent with the purposes served by the cause and prejudice standard. That standard rests not only on the need to deter intentional defaults but on a judgment that the costs of federal habeas review 'are particularly high when a trial default has barred a prisoner from obtaining adjudication of his constitutional claim in the state courts.'

We think, then, that the question of cause for a procedural default does not turn on whether counsel erred or on the kind of error counsel may have made. So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, supra, we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default. Instead, we think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule. Without attempting an exhaustive catalog of such objective impediments to compliance with a procedural rule, we note that a showing that the factual or legal basis for a claim was not reasonably available to counsel or that 'some interference by officials' made compliance impracticable, would constitute cause under this standard.

Similarly, if the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the State, which may not 'conduc[t] trials at which persons who face incarceration must defend themselves without adequate legal assistance.' Ineffective assistance of counsel, then, is cause for a procedural default. However, we think that the exhaustion doctrine, which is 'principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings,' Rose v. Lundy, generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default. The question whether there is cause for a procedural default does not pose any occasion for applying the exhaustion doctrine when the federal habeas court can adjudicate the question of cause - a question of federal law - without deciding an independent and unexhausted constitutional claim on the merits. But if 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. The principle of comity that underlies the exhaustion doctrine would be ill served by a rule that allowed a federal district court 'to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation...'

We hold that counsel's failure to raise a particular claim on appeal is to be scrutinized under the cause and prejudice standard when that failure is treated as a procedural default by the state courts. Attorney error short of ineffective assistance of counsel does not constitute cause for a procedural default even when that default occurs on appeal rather than at trial. To the contrary, cause for a procedural default on appeal ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim."

Justice Vote: 2 Pro vs. 7 Con
  • O'Connor, S.  Con  (Wrote majority opinion)
  • Burger, W.  Con  (Joined majority opinion)
  • Rehnquist, W.  Con  (Joined majority opinion)
  • White, B.  Con  (Joined majority opinion)
  • Powell, L.  Con  (Joined majority opinion)
  • Stevens, J.  Con  (Wrote concurring opinion)
  • Blackmun, H.  Con  (Joined concurring opinion)
  • Brennan, W.  Pro  (Wrote dissenting opinion)
  • Marshall, T.  Pro  (Joined dissenting opinion)

The ACLU filed as amicus urging affirmance; the US Supreme Court reversed the lower court in a 7-2 vote, giving the ACLU and apparent loss.