Subject:  COLEMAN v. THOMPSON, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



COLEMAN v. THOMPSON, WARDEN


certiorari to the united states court of appeals for the fourth circuit

No. 89-7662.  Argued February 25, 1991 -- Decided June 24, 1991

After a Buchanan County jury convicted petitioner Coleman of capital
murder, he was sentenced to death, and the Virginia Supreme Court affirmed.
He then filed a habeas corpus action in the County Circuit Court, which,
after a 2-day evidentiary hearing, ruled against him on numerous federal
constitutional claims that he had not raised on direct appeal.  He filed a
notice of appeal with that court 33 days after it entered its final
judgment and subsequently filed a petition for appeal in the Virginia
Supreme Court.  The Commonwealth moved to dismiss the appeal on the sole
ground that the notice of appeal was untimely under the Supreme Court's
Rule 5:9(a), which requires that such a notice be filed within 30 days of
final judgment.  After both parties filed several briefs on the subject of
the dismissal motion and on the merits of Coleman's claims, the Supreme
Court granted the motion "upon consideration [o]f" the filed papers.
Coleman next filed a habeas petition in the Federal District Court,
presenting, inter alia, seven federal constitutional claims he had first
raised in state habeas.  Among other things, the court concluded that, by
virtue of the dismissal of his state habeas appeal, Coleman had
procedurally defaulted the seven claims.  The Court of Appeals affirmed,
rejecting Coleman's argument that the Virginia Supreme Court had not
"clearly and expressly" stated that its decision in state habeas was based
on a procedural default, such that the federal courts could not treat it as
such under Harris v. Reed, 489 U. S. 255.  The court concluded that federal
review of the claims was barred, since the Virginia Supreme Court had met
Harris' "plain statement" requirement by granting a motion to dismiss that
was based solely on procedural grounds, since that decision rested on
independent and adequate state grounds, and since Coleman had not shown
cause to excuse the default.

Held: Coleman's claims presented for the first time in the state habeas
proceeding are not subject to review in federal habeas.  Pp. 3-31.

    (a) Because of comity and federalism concerns and the requirement that
States have the first opportunity to correct their own mistakes, federal
habeas courts generally may not review a state court's denial of a state
prisoner's federal constitutional claim if the state court's de cision
rests on a state procedural default that is independent of the federal
question and adequate to support the prisoner's continued custody.  See, e.
g., Wainwright v. Sykes, 433 U. S. 72, 81, 87.  Pp. 3-7.

    (b) Since ambiguous state court decisions can make it difficult for a
federal habeas court to apply the independent and adequate state ground
doctrine, this Court has created a conclusive presumption that there is no
such ground if the decision of the last state court to which the petitioner
presented his federal claims fairly appeared to rest primarily on
resolution of those claims, or to be interwoven with those claims, and did
not "clearly and expressly" rely on an independent and adequate state
ground.  See Harris, supra, at 261, 266; Michigan v. Long, 463 U. S. 1023,
1040-1041.  Pp. 7-10.

    (c) There is no merit to Coleman's contention that the Harris
presumption applies in all cases in which the state habeas court's decision
does not "clearly and expressly" state that it was based on an independent
and adequate state ground.  The holding of Harris, supra, is not changed by
the fact that, in one particular exposition of its rule, id., at 263, the
Court announced the "plain statement" requirement without mentioning the
predicate requirement that the state court's decision must fairly appear to
rest primarily on, or to be interwoven with, federal law.  The Harris
presumption, like all conclusive presumptions, is designed to avoid the
costs of excessive inquiry where a per se rule will achieve the correct
result in almost all cases.  Coleman's proposed rule would greatly and
unacceptably expand the risk of improper federal review in those cases in
which it does not fairly appear that the state court rested its decision
primarily on federal grounds.  Applying Coleman's rule would have very
little benefit to the federal courts in such cases, since their task of
determining the scope of the state court judgment would not be difficult.
On the other hand, that rule would place great burdens on the States,
which, if their courts neglected to provide a clear and express statement
of procedural default, would have to respond to federal habeas review of
the federal claims of prisoners in state custody for independent and
adequate state law reasons, would have to pay the price in terms of the
uncertainty and delay added to the enforcement of their criminal laws, and
would have to retry the petitioner if the federal courts reversed his
conviction.  Coleman's rule would also burden the state courts, which would
have to incorporate "plain statement" language in every state appeal and
every denial of state collateral review that was potentially subject to
federal review.  Pp. 10-14.

    (d) The Harris presumption does not apply in this case.  The Virginia
Supreme Court's dismissal order "fairly appears" to rest primarily on state
law, since it does not mention federal law and granted the Commonwealth's
dismissal motion, which was based solely on Coleman's failure to meet Rule
5:9(a)'s time requirements.  There is no merit to Coleman's argument that
the dismissal was not independent of federal law because the Virginia court
applied its procedural bar only after determining that doing so would not
abridge one of his federal constitutional rights, such that federal review
is permissible under Ake v. Oklahoma, 470 U. S. 68, 75.  Even if Ake, a
direct review case, applies here, it does Coleman no good because the
Virginia court relied on an independent state procedural ground.  Moreover,
it is clear that the rule of Tharp v. Commonwealth, 211 Va. 1, 3, 175 S. E.
2d 277, 278 -- in which the Virginia court announced that it would no
longer allow extensions of time for filing petitions for writs of error
with the Supreme Court unless denial of an extension would abridge a
constitutional right -- was not applied here, where it was Coleman's notice
of appeal in the trial court that was late.  And, although in O'Brien v.
Socony Mobil Oil Co., 207 Va. 707, 709, 152 S. E. 2d 278, 280, the Virginia
court reviewed the merits of a constitutional claim before dismissing the
case on the basis of an untimely civil notice of appeal, it also expressly
declined to announce a rule that there is a constitutional exception to the
notice of appeal time requirement.  While some ambiguity is added to this
case by the fact that the Virginia Supreme Court's dismissal order was
issued "[u]pon consideration" of all the filed papers, including those
discussing the merits of Coleman's federal claims, this Court cannot read
that ambiguity as overriding the Virginia court's explicit grant of a
dismissal motion based solely on state procedural grounds independent of
federal law.  This Court also accepts the Court of Appeals' conclusion that
the procedural bar was adequate to support the judgment, since Coleman did
not petition for certiorari on this question.  Pp. 14-19.

    (e) In all cases in which a state prisoner has defaulted his federal
claims in state court pursuant to an independent and adequate state
procedural rule, federal habeas review of the claims is barred unless the
prisoner can demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate that failure
to consider the claims will result in a fundamental miscarriage of justice.
Cf., e. g., Murray v. Carrier, 477 U. S. 478, 485, 495; Harris, supra, at
495.  Although Coleman would be entitled to relief if the "deliberate
bypass" standard set forth in Fay v. Noia, 372 U. S. 391, 438-439, still
applied, that standard has been superseded by the Court's subsequent
decisions applying the cause and prejudice standard.  The Fay standard was
based on a conception of federal/state relations that undervalued the
important interest in finality served by state procedural rules, and the
significant harm to the States that results from the failure of federal
courts to respect them.  Cf. McCleskey v. Zant, 499 U. S. ---, ---, and,
pp. 19-26.

    (f) Coleman's contention that it was his attorney's error that led to
the late filing of his state habeas appeal cannot demonstrate "cause" under
the foregoing standard.  Carrier, supra, at 488, establishes that attorney
error can be "cause" only if it constitutes ineffective assistance of
counsel violative of the Sixth Amendment.  Because there is no
constitutional right to an attorney in state postconviction proceedings,
see, e. g., Pennsylvania v. Finley, 481 U. S. 551, a petitioner cannot
claim constitutionally ineffective assistance of counsel in such
proceedings, see, Wainwright v. Torna, 455 U. S. 586.  Although Coleman
argues that attorney error may be of sufficient magnitude to excuse a
procedural default in federal habeas even though no Sixth Amendment claim
is possible, this argument is inconsistent with the language and logic of
Carrier, supra, at 488, which explicitly says that, in the absence of a
constitutional violation, the petitioner bears the risk in federal habeas
for all attorney errors made in the course of the representation.  Pp.
26-29.

    (g) Nor is there merit to Coleman's contention that, at least as to the
federal ineffective assistance claims that he first presented to the state
habeas trial court, attorney error in his state habeas appeal must
constitute "cause" because, under Virginia law at the time of his trial and
direct appeal, claims of that type could be brought only in state habeas.
Although an indigent criminal defendant is constitutionally entitled to an
effective attorney in his "one and only appeal . . . as of right," Douglas
v. California, 372 U. S. 353, 357, 358; Evitts v. Lucey, 469 U. S. 387,
Coleman has had his "one and only appeal" as to the claims in question,
since the County Circuit Court fully addressed and denied those claims.  He
does not have a constitutional right to counsel on appeal from that
determination.  Cf., e. g., Finley, supra, at 556.  Thus, since any
attorney error that lead to the default of those claims cannot constitute
"cause," and since Coleman does not argue in this Court that federal review
of the claims is necessary to prevent a fundamental miscarriage of justice,
he is barred from bringing the claims in federal habeas.  Pp. 29-31.

895 F. 2d 139, affirmed.

    O'Connor, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and White, Scalia, Kennedy, and Souter, JJ., joined.  White, J.,
filed a concurring opinion.  Blackmun, J., filed a dissenting opinion, in
which Marshall and Stevens, JJ., joined.

------------------------------------------------------------------------------




Subject: 89-7662 -- OPINION, COLEMAN v. THOMPSON

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 89-7662



ROGER KEITH COLEMAN, PETITIONER v. CHARLES E. THOMPSON, WARDEN

on writ of certiorari to the united states court of appeals for the fourth
circuit

[June 24, 1991]



    Justice O'Connor delivered the opinion of the Court.
    This is a case about federalism.  It concerns the respect that federal
courts owe the States and the States' procedural rules when reviewing the
claims of state prisoners in federal habeas corpus.

I
    A Buchanan County, Virginia, jury convicted Roger Keith Coleman of rape
and capital murder and fixed the sentence at death for the murder.  The
trial court imposed the death sentence, and the Virginia Supreme Court
affirmed both the convictions and the sentence.  Coleman v. Commonwealth,
226 Va. 31, 307 S. E. 2d 864 (1983).  This Court denied certiorari.  465 U.
S. 1109 (1984).
    Coleman then filed a petition for a writ of habeas corpus in the
Circuit Court for Buchanan County, raising numerous federal constitutional
claims that he had not raised on direct appeal.  After a two-day
evidentiary hearing, the Circuit Court ruled against Coleman on all claims.
App. 3-19.  The court entered its final judgment on September 4, 1986.
    Coleman filed his notice of appeal with the Circuit Court on October 7,
1986, 33 days after the entry of final judgment.  Coleman subsequently
filed a petition for appeal in the Virginia Supreme Court.  The
Commonwealth of Virginia, as appellant, filed a motion to dismiss the
appeal.  The sole ground for dismissal urged in the motion was that
Coleman's notice of appeal had been filed late.  Virginia Supreme Court
Rule 5:9(a) provides that no appeal shall be allowed unless a notice of
appeal is filed with the trial court within 30 days of final judgment.
    The Virginia Supreme Court did not act immediately on the
Commonwealth's motion, and both parties filed several briefs on the subject
of the motion to dismiss and on the merits of the claims in Coleman's
petition.  On May 19, 1987, the Virginia Supreme Court issued the following
order, dismissing Coleman's appeal:


    "On December 4, 1986 came the appellant, by counsel, and filed a
petition for appeal in the above-styled case.
    "Thereupon came the appellee, by the Attorney General of Virginia, and
filed a motion to dismiss the petition for appeal; on December 19, 1986 the
appellant filed a memorandum in opposition to the motion to dismiss; on
December 19, 1986 the appellee filed a reply to the appellant's memorandum;
on December 23, 1986 the appellee filed a brief in opposition to the
petition for appeal; on December 23, 1986 the appellant filed a surreply in
opposition to the appellee's motion to dismiss; and on January 6, 1987 the
appellant filed a reply brief.
    "Upon consideration whereof, the motion to dismiss is granted and the
petition for appeal is dismissed."  App. 25-26.


This Court again denied certiorari.  Coleman v. Bass, 484 U. S. 918
(1987).
    Coleman next filed a petition for writ of habeas corpus in the United
States District Court for the Western District of Virginia.  In his
petition, Coleman presented four federal constitutional claims he had
raised on direct appeal in the Virginia Supreme Court and seven claims he
had raised for the first time in state habeas.  The District Court
concluded that, by virtue of the dismissal of his appeal by the Virginia
Supreme Court in state habeas, Coleman had procedurally defaulted the seven
claims.  App. 38-39.  The District Court nonetheless went on to address the
merits of all 11 of Coleman's claims.  The court ruled against Coleman on
all of the claims and denied the petition.  Id., at 40-52.
    The United States Court of Appeals for the Fourth Circuit affirmed.
895 F. 2d 139 (1990).  The court held that Coleman had defaulted all of the
claims that he had presented for the first time in state habeas.  Coleman
argued that the Virginia Supreme Court had not "clearly and expressly"
stated that its decision in state habeas was based on a procedural default,
and therefore the federal courts could not treat it as such under the rule
of Harris v. Reed, 489 U. S. 255 (1989).  The Fourth Circuit disagreed.  It
concluded that the Virginia Supreme Court had met the "plain statement"
requirement of Harris by granting a motion to dismiss that was based solely
on procedural grounds.  895 F. 2d, at 143.  The Fourth Circuit held that
the Virginia Supreme Court's decision rested on independent and adequate
state grounds and that Coleman had not shown cause to excuse the default.
Id., at 143-144.  As a consequence, federal review of the claims Coleman
presented only in the state habeas proceeding was barred.  Id., at 144.  We
granted certiorari, 498 U. S. --- (1990), to resolve several issues
concerning the relationship between state procedural defaults and federal
habeas review, and now affirm.

II


A
    This Court will not review a question of federal law decided by a state
court if the decision of that court rests on a state law ground that is
independent of the federal question and adequate to support the judgment.
See, e. g., Fox Film Corp. v. Muller, 296 U. S. 207, 210 (1935); Klinger v.
Missouri, 13 Wall. 257, 263 (1872).  This rule applies whether the state
law ground is substantive or procedural.  See, e. g., Fox Film, supra;
Herndon v. Georgia, 295 U. S. 441 (1935).  In the context of direct review
of a state court judgment, the independent and adequate state ground
doctrine is jurisdictional.  Because this Court has no power to review a
state law determination that is sufficient to support the judgment,
resolution of any independent federal ground for the decision could not
affect the judgment and would therefore be advisory.  See Herb v. Pitcairn,
324 U. S. 117, 125-126 (1945) ("We are not permitted to render an advisory
opinion, and if the same judgment would be rendered by the state court
after we corrected its views of federal laws, our review could amount to
nothing more than an advisory opinion").
    We have applied the independent and adequate state ground doctrine not
only in our own review of state court judgments, but in deciding whether
federal district courts should address the claims of state prisoners in
habeas corpus actions.  For example, in McNally v. Hill, 293 U. S. 131
(1934), the Court held that where a prisoner is in custody pursuant to an
unchallenged count in a state indictment, there is "no occasion, in a
habeas corpus proceeding, for inquiry into the validity of his conviction
under [another count]."  Id., at 135.  The unchallenged count serves as an
independent and adequate state ground supporting custody.  The doctrine
applies also to bar federal habeas when a state court declined to address a
prisoner's federal claims because the prisoner had failed to meet a state
procedural requirement.  In these cases, the state judgment rests on
independent and adequate state procedural grounds.  See Wainwright v.
Sykes, 433 U. S. 72, 81, 87 (1977); Ulster County Court v. Allen, 442 U. S.
140, 148 (1979).  See generally Harris, supra, at 262.
    The basis for application of the independent and adequate state ground
doctrine in federal habeas is somewhat different than on direct review by
this Court.  When this Court reviews a state court decision on direct
review pursuant to 28 U. S. C. MDRV 1257 it is reviewing the judgment; if
resolution of a federal question cannot affect the judgment, there is
nothing for the Court to do.  This is not the case in habeas.  When a
federal district court reviews a state prisoner's habeas corpus petition
pursuant to 28 U. S. C. MDRV 2254 it must decide whether the petitioner is
"in custody in violation of the Constitution or laws or treaties of the
United States."  Ibid.  The court does not review a judgment, but the
lawfulness of the petitioner's custody simpliciter.  See Fay v. Noia, 372
U. S. 391, 430 (1963).
    Nonetheless, a state prisoner is in custody pursuant to a judgment.
When a federal habeas court releases a prisoner held pursuant to a state
court judgment that rests on an independent and adequate state ground, it
renders ineffective the state rule just as completely as if this Court had
reversed the state judgment on direct review.  See Fay, supra, at 469
(Harlan, J., dissenting).  In such a case, the habeas court ignores the
State's legitimate reasons for holding the prisoner.
    In the habeas context, the application of the independent and adequate
state ground doctrine is grounded in concerns of comity and federalism.
Without the rule, a federal district court would be able to do in habeas
what this Court could not do on direct review; habeas would offer state
prisoners whose custody was supported by independent and adequate state
grounds an end run around the limits of this Court's jurisdiction and a
means to undermine the State's interest in enforcing its laws.
    When the independent and adequate state ground supporting a habeas
petitioner's custody is a state procedural default, an additional concern
comes into play.  This Court has long held that a state prisoner's federal
habeas petition should be dismissed if the prisoner has not exhausted
available state remedies as to any of his federal claims.  See Ex parte
Royall, 117 U. S. 241 (1886).  See also Rose v. Lundy, 455 U. S. 509
(1982); Castille v. Peoples, 489 U. S. 346 (1989); 28 U. S. C. MDRV 2254(b)
(codifying the rule).  This exhaustion requirement is also grounded in
principles of comity; in a federal system, the States should have the first
opportunity to address and correct alleged violations of state prisoner's
federal rights.  As we explained in Rose, supra:


    "The exhaustion doctrine is principally designed to protect the state
courts' role in the enforcement of federal law and prevent disruption of
state judicial proceedings.  See Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U. S. 484, 490-491 (1973).  Under our federal system, the
federal and state `courts [are] equally bound to guard and protect rights
secured by the Constitution.'  Ex parte Royall, 117 U. S., at 251.  Because
`it would be unseemly in our dual system of government for a federal
district court to upset a state court conviction without an opportunity to
the state courts to correct a constitutional violation,' federal courts
apply the doctrine of comity, which `teaches that one court should defer
action on causes properly within its jurisdiction until the courts of
another sovereignty with concurrent powers, and already cognizant of the
litigation, have had an opportunity to pass upon the matter.'  Darr v.
Burford, 339 U. S. 200, 204 (1950)."  Id., at 518.


    These same concerns apply to federal claims that have been procedurally
defaulted in state court.  Just as in those cases in which a state prisoner
fails to exhaust state remedies, a habeas petitioner who has failed to meet
the State's procedural requirements for presenting his federal claims has
deprived the state courts of an opportunity to address those claims in the
first instance.  A habeas petitioner who has defaulted his federal claims
in state court meets the technical requirements for exhaustion; there are
no state remedies any longer "available" to him.  See 28 U. S. C. MDRV
2254(b); Engle v. Isaac, 456 U. S. 107, 125-126, n. 28 (1982).  In the
absence of the independent and adequate state ground doctrine in federal
habeas, habeas petitioners would be able to avoid the exhaustion
requirement by defaulting their federal claims in state court.  The
independent and adequate state ground doctrine ensures that the States'
interest in correcting their own mistakes is respected in all federal
habeas cases.

B
    It is not always easy for a federal court to apply the independent and
adequate state ground doctrine.  State court opinions will, at times,
discuss federal questions at length and mention a state law basis for
decision only briefly.  In such cases, it is often difficult to determine
if the state law discussion is truly an independent basis for decision, or
merely a passing reference.  In other cases, state opinions purporting to
apply state constitutional law will derive principles by reference to
federal constitutional decisions from this Court.  Again, it is unclear
from such opinions whether the state law decision is independent of federal
law.
    In Michigan v. Long, 463 U. S. 1032 (1983) we provided a partial
solution to this problem in the form of a conclusive presumption.  Prior to
Long, when faced with ambiguous state court decisions, this Court had
adopted various inconsistent and unsatisfactory solutions including
dismissal of the case, remand to the state court for clarification, or an
independent investigation of state law.  Id., at 1038-1040.  These
solutions were burdensome both to this Court and to the state courts.  They
were also largely unnecessary in those cases where it fairly appeared that
the state court decision rested primarily on federal law.  The most
reasonable conclusion in such cases is that there is not an independent and
adequate state ground for the decision.  Therefore, in order to minimize
the costs associated with resolving ambiguities in state court decisions
while still fulfilling our obligation to determine if there was an
independent and adequate state ground for the decision, we established a
conclusive presumption of jurisdiction in these cases:


"[W]hen, as in this case, a state court decision fairly appears to rest
primarily on federal law, or to be interwoven with the federal law, and
when the adequacy and independence of any possible state law ground is not
clear from the face of the opinion, we will accept as the most reasonable
explanation that the state court decided the case the way it did because it
believed that federal law required it to do so."  463 U. S., at 1040-1041.


    After Long, a state court that wishes to look to federal law for
guidance or as an alternative holding while still relying on an independent
and adequate state ground can avoid the presumption by stating "clearly and
expressly that [it's decision] is . . . based on bona fide separate,
adequate, and independent grounds."  Id., at 1041.
    In Caldwell v. Mississippi, 472 U. S. 320 (1985), we applied the Long
presumption in the context of an alleged independent and adequate state
procedural ground.  Caldwell, a criminal defendant, challenged at trial
part of the prosecutor's closing argument to the jury, but he did not raise
the issue on appeal to the Mississippi Supreme Court.  That Court raised
the issue sua sponte, discussing this federal question at length in its
opinion and deciding it against Caldwell.  The Court also made reference to
its general rule that issues not raised on appeal are deemed waived.  The
State argued to this Court that the procedural default constituted an
independent and adequate state ground for the Mississippi Court's decision.
We rejected this argument, noting that the state decision " `fairly appears
to rest primarily on federal law,' " and there was no clear and express
statement that the Mississippi Supreme Court was relying on procedural
default as an independent ground.  Id., at 327, quoting Long, supra, at
1040.
    Long and Caldwell were direct review cases.  We first considered the
problem of ambiguous state court decisions in the application of the
independent and adequate state ground doctrine in a federal habeas case in
Harris v. Reed, 489 U. S. 255 (1989).  Harris, a state prisoner, filed a
petition for state postconviction relief, alleging that his trial counsel
had rendered ineffective assistance.  The state trial court dismissed the
petition, and the Appellate Court of Illinois affirmed.  In its order, the
Appellate Court referred to the Illinois rule that " `those [issues] which
could have been presented [on direct appeal], but were not, are considered
waived.' "  Id., at 258.  The court concluded that Harris could have raised
his ineffective assistance claims on direct review.  Nonetheless, the court
considered and rejected Harris' claims on the merits.  Harris then
petitioned for federal habeas.
    The situation presented to this Court was nearly identical to that in
Long and Caldwell: a state court decision that fairly appeared to rest
primarily on federal law in a context in which a federal court has an
obligation to determine if the state court decision rested on an
independent and adequate state ground.  "Faced with a common problem, we
adopt[ed] a common solution."  Harris, supra, at 263.  Harris applied in
federal habeas the presumption this Court adopted in Long for direct review
cases.  Because the Illinois Appellate Court did not "clearly and
expressly" rely on waiver as a ground for rejecting Harris' ineffective
assistance of counsel claims, the Long presumption applied and Harris was
not barred from federal habeas.  Harris, supra, at 266.
    After Harris, federal courts on habeas corpus review of state prisoner
claims, like this Court on direct review of state court judgments, will
presume that there is no independent and adequate state ground for a state
court decision when the decision "fairly appears to rest primarily on
federal law, or to be interwoven with the federal law, and when the
adequacy and independence of any possible state law ground is not clear
from the face of the opinion."  Long, supra, at 1040-1041.  In habeas, if
the decision of the last state court to which the petitioner presented his
federal claims fairly appeared to rest primarily on resolution of those
claims, or to be interwoven with those claims, and did not clearly and
expressly rely on an independent and adequate state ground, a federal court
may address the petition. {1}

III


A
    Coleman contends that the presumption of Long and Harris applies in
this case, and precludes a bar to habeas, because the Virginia Supreme
Court's order dismissing Coleman's appeal did not "clearly and expressly"
state that it was based on state procedural grounds.  Coleman reads Harris
too broadly.  A predicate to the application of the Harris presumption is
that the decision of the last state court to which the petitioner presented
his federal claims must fairly appear to rest primarily on federal law or
to be interwoven with federal law.
    Coleman relies on other language in Harris.  That opinion announces
that: "a procedural default does not bar consideration of a federal claim
on either direct or habeas review unless the last state court rendering a
judgment in the case clearly and expressly states that its judgment rests
on a state procedural bar."  Harris, supra, at 263 (internal quotations
omitted).  Coleman contends that this rule, by its terms, applies to all
state court judgments, not just those that fairly appear to rest primarily
on federal law.
    Coleman has read the rule out of context.  It is unmistakably clear
that Harris applies the same presumption in habeas that Long and Caldwell
adopted in direct review cases in this Court.  See Harris, 489 U. S., at
263 ("Faced with a common problem we adopt a common solution"); see also
id., at 264 ("Under our decision today, a state court need do nothing more
to preclude habeas review than it must do to preclude direct review").
Indeed, the quoted passage purports to state the rule "on either direct or
habeas review."  Harris, being a federal habeas case, could not change the
rule for direct review; the reference to both direct and habeas review
makes plain that Harris applies precisely the same rule as Long.  Harris
describes the Long presumption, and hence its own, as applying only in
those cases in which " `it fairly appears that the state court rested its
decision primarily on federal law."  Harris, supra, at 261, quoting Long,
supra, at 1040.  That in one particular exposition of its rule Harris does
not mention the predicate to application of the presumption does not change
the holding of the opinion.
    Coleman urges a broader rule: that the presumption applies in all cases
in which a habeas petitioner presented his federal claims to the state
court.  This rule makes little sense.  In direct review cases, "[i]t is . .
. `incumbent upon this Court . . . to ascertain for itself . . . whether
the asserted non-federal ground independently and adequately supports the
[state court] judgment.' "  Long, supra, at 1038, quoting Abie State Bank
v. Bryan, 282 U. S. 765, 773 (1931).  Similarly, federal habeas courts must
ascertain for themselves if the petitioner is in custody pursuant to a
state court judgment that rests on independent and adequate state grounds.
In cases in which the Long and Harris presumption applies, federal courts
will conclude that the relevant state court judgment does not rest on an
independent and adequate state ground.  The presumption, like all
conclusive presumptions, is designed to avoid the costs of excessive
inquiry where a per se rule will achieve the correct result in almost all
cases.  As we explained in a different context:

    "Per se rules . . . require the Court to make broad generalizations . .
. .  Cases that do not fit the generalization may arise, but a per se rule
reflects the judgment that such cases are not sufficiently common or
important to justify the time and expense necessary to identify them."
Continental T. V., Inc. v. GTE Sylvania, Inc., 433 U. S. 36, 50, n. 16
(1977).


    Per se rules should not be applied, however, in situations where the
generalization is incorrect as an empirical matter; the justification for a
conclusive presumption disappears when application of the presumption will
not reach the correct result most of the time.  The Long and Harris
presumption works because in the majority of cases in which a state court
decision fairly appears to rest primarily on federal law or to be
interwoven with such law, and the state court does not plainly state that
it is relying on an independent and adequate state ground, the state court
decision did not in fact rest on an independent and adequate state ground.
We accept errors in those small number of cases where there was nonetheless
an independent and adequate state ground in exchange for a significant
reduction in the costs of inquiry.
    The tradeoff is very different when the factual predicate does not
exist.  In those cases in which it does not fairly appear that the state
court rested its decision primarily on federal grounds, it is simply not
true that the "most reasonable explanation" is that the state judgment
rested on federal grounds.  Cf. Long, supra, at 1041.  Yet Coleman would
have the federal courts apply a conclusive presumption of no independent
and adequate state grounds in every case in which a state prisoner
presented his federal claims to a state court, regardless of whether it
fairly appears that the state court addressed those claims.  We cannot
accept such a rule, for it would greatly and unacceptably expand the risk
that federal courts will review the federal claims of prisoners in custody
pursuant to judgments resting on independent and adequate state grounds.
Any efficiency gained by applying a conclusive presumption, and thereby
avoiding inquiry into state law, is simply not worth the cost in the loss
of respect for the State that such a rule would entail.
    It may be argued that a broadly applicable presumption is not
counterfactual after it is announced: once state courts know that their
decisions resting on independent and adequate state procedural grounds will
be honored in federal habeas only if there is a clear and express statement
of the default, these courts will provide such a statement in all relevant
cases.  This argument does not help Coleman.  Even assuming that Harris can
be read as establishing a presumption in all cases, the Virginia Supreme
Court issued its order dismissing Coleman's appeal before this Court
decided Harris.  As to this state court order, the absence of an express
statement of procedural default is not very informative.
    In any event, we decline to establish such a rule here, for it would
place burdens on the States and state courts in exchange for very little
benefit to the federal courts.  We are, as an initial matter, far from
confident that the empirical assumption of the argument for such a rule is
correct.  It is not necessarily the case that state courts will take pains
to provide a clear and express statement of procedural default in all
cases, even after announcement of the rule.  State courts presumably have a
dignitary interest in seeing that their state law decisions are not ignored
by a federal habeas court, but most of the price paid for federal review of
state prisoner claims is paid by the State.  When a federal habeas court
considers the federal claims of a prisoner in state custody for independent
and adequate state law reasons, it is the State that must respond.  It is
the State that pays the price in terms of the uncertainty and delay added
to the enforcement of its criminal laws.  It is the State that must retry
the petitioner if the federal courts reverse his conviction.  If a state
court, in the course of disposing of cases on its overcrowded docket,
neglects to provide a clear and express statement of procedural default, or
is insufficiently motivated to do so, there is little the State can do
about it.  Yet it is primarily respect for the State's interests that
underlies the application of the independent and adequate state ground
doctrine in federal habeas.
    A broad presumption would also put too great a burden on the state
courts.  It remains the duty of the federal courts, whether this Court on
direct review, or lower federal courts in habeas, to determine the scope of
the relevant state court judgment.  We can establish a per se rule that
eases the burden of inquiry on the federal courts in those cases where
there are few costs to doing so, but we have no power to tell state courts
how they must write their opinions.  We encourage state courts to express
plainly, in every decision potentially subject to federal review, the
grounds upon which its judgment rests, but we will not impose on state
courts the responsibility for using particular language in every case in
which a state prisoner presents a federal claim -- every state appeal,
every denial of state collateral review -- in order that federal courts
might not be bothered with reviewing state law and the record in the case.
    Nor do we believe that the federal courts will save much work by
applying the Harris presumption in all cases.  The presumption at present
applies only when it fairly appears that a state court judgment rested
primarily on federal law or was interwoven with federal law, that is, in
those cases where a federal court has good reason to question whether there
is an independent and adequate state ground for the decision.  In the rest
of the cases, there is little need for a conclusive presumption.  In the
absense of a clear indication that a state court rested its decision on
federal law, a federal court's task will not be difficult.
    There is, in sum, little that the federal courts will gain by applying
a presumption of federal review in those cases where the relevant state
court decision does not fairly appear to rest primarily on federal law or
to be interwoven with such law, and much that the States and state courts
will lose.  We decline to so expand the Harris presumption.

B
    The Harris presumption does not apply here.  Coleman does not argue,
nor could he, that it "fairly appears" that the Virginia Supreme Court's
decision rested primarily on federal law or was interwoven with such law.
The Virginia Supreme Court stated plainly that it was granting the
Commonwealth's motion to dismiss the petition for appeal.  That motion was
based solely on Coleman's failure to meet the Supreme Court's time
requirements.  There is no mention of federal law in the Virginia Supreme
Court's three-sentence dismissal order.  It "fairly appears" to rest
primarily on state law.
    Coleman concedes that the Virginia Supreme Court dismissed his state
habeas appeal as untimely, applying a state procedural rule.  Brief for
Petitioner 9.  He argues instead that the court's application of this
procedural rule was not independent of federal law.
    Virginia Supreme Court Rule 5:5(a) declares that the 30day requirement
for filing a notice of appeal is "mandatory."  The Virginia Supreme Court
has reiterated the unwaivable nature of this requirement.  See School Bd.
of Lynchburg v. Scott, 237 Va. 550, 556, 379 S. E. 2d 319, 323 (1989);
Vaughn v. Vaughn, 215 Va. 328, 329, 210 S. E. 2d 140, 142 (1974); Mears v.
Mears, 206 Va. 444, 445, 143 S. E. 2d 889, 890 (1965).  Despite these
forthright pronouncements, Coleman contends that in this case the Virginia
Supreme Court did not automatically apply its time requirement.  Rather,
Coleman asserts, the Court first considered the merits of his federal
claims, and applied the procedural bar only after determining that doing so
would not abridge one of Coleman's constitutional rights.  In Ake v.
Oklahoma, 470 U. S. 68 (1985), this Court held that a similar Oklahoma
rule, excusing procedural default in cases of "fundamental trial error,"
was not independent of federal law so as to bar direct review because "the
State ha[d] made application of the procedural bar depend on an antecedent
ruling on federal law."  Id., at 75.  For the same reason, Coleman argues,
the Virginia Supreme Court's time requirement is not independent of federal
law.
    Ake was a direct review case. We have never applied its rule regarding
independent state grounds in federal habeas. But even if Ake applies here,
it does Coleman no good because the Virginia Supreme Court relied on an
independent state procedural rule.
    Coleman cites Tharp v. Commonwealth, 211 Va. 1, 175 S. E. 2d 277
(1970).  In that case, the Virginia Supreme Court announced that it was
ending its practice of allowing extensions of time for petitions of writs
of error in criminal and state habeas cases:

    "Henceforth we will extend the time for filing a petition for a writ of
error only if it is found that to deny the extension would abridge a
constitutional right."  Id., at 3, 175 S. E. 2d, at 278.


Coleman contends that the Virginia Supreme Court's exception for
constitutional claims demonstrates that the court will conduct at least a
cursory review of a petitioner's constitutional claims on the merits before
dismissing an appeal.
    We are not convinced that Tharp stands for the rule that Coleman
believes it does.  Coleman reads that case as establishing a practice in
the Virginia Supreme Court of examining the merits of all underlying
constitutional claims before denying a petition for appeal or writ of error
as time barred.  A more natural reading is that the Virginia Supreme Court
will only grant an extension of time if the denial itself would abridge a
constitutional right.  That is, the Virginia Supreme Court will extend its
time requirement only in those cases in which the petitioner has a
constitutional right to have the appeal heard.
    This was the case, for example, in Cabaniss v. Cunningham, 206 Va. 330,
143 S. E. 2d 911 (1965).  Cabaniss had defaulted the direct appeal of his
criminal conviction because the trial court had failed to honor his request
for appointed counsel on appeal, a request the court was required to honor
under the Constitution.  See Douglas v. California, 372 U. S. 353 (1963).
The Virginia Supreme Court, on state collateral review, ordered that
Cabaniss be given counsel and allowed to file a new appeal, although
grossly out of time. 206 Va., at 335, 143 S. E. 2d, at 914.  Enforcing the
time requirements for appeal in that case would have abridged Cabaniss'
constitutional right to counsel on appeal.  See also Thacker v. Peyton, 206
Va. 771, 146 S. E. 2d 176 (1966) (same); Stokes v. Peyton, 207 Va. 1, 147
S. E. 2d 773 (1966) (same).  Such a rule would be of no help to Coleman.
He does not contend that the failure of the Virginia Supreme Court to hear
his untimely state habeas appeal violated one of his constitutional
rights.
    Even if we accept Coleman's reading of Tharp, however, it is clear that
the Virginia Supreme Court did not apply the Tharp rule here.  Tharp
concerns the filing requirement for petitions.  Here, it was not Coleman's
petition for appeal that was late, but his notice of appeal.  A petition
for appeal to the Virginia Supreme Court is a document filed with that
court in which the petitioner describes the alleged errors in the decision
below.  Va. Sup. Ct. Rule 5:17(c).  It need only be filed within three
months of the final judgment of a trial court.  Rule 5:17(a)(1).  By
contrast, the notice of appeal is a document filed with the trial court
that notifies that court and the Virginia Supreme Court, as well as the
parties, that there will be an appeal; it is a purely ministerial document.
Rule 5:9.  The notice of the appeal must be filed within 30 days of the
final judgment of the trial court.  Ibid.  Coleman has cited no authority
indicating that the Virginia Supreme Court has recognized an exception to
the time requirement for filing a notice of appeal.
    Coleman cites also O'Brien v. Socony Mobil Oil Co., 207 Va. 707, 152 S.
E. 2d 278 (1967).  In that case, O'Brien, a civil litigant making a
constitutional property rights claim, filed her notice of appeal several
years late.  She relied on three recent Virginia Supreme Court cases for
the proposition that the Court would waive the time requirement for notice
of appeal where constitutional rights were at stake.  See Cabaniss, supra;
Thacker, supra; Stokes, supra.  As noted, those were state habeas cases in
which the Virginia Supreme Court determined that the petitioner had been
denied direct appeal because of a constitutional error in failure to
appoint counsel.
    In O'Brien, the Virginia Supreme Court expressly reserved the "question
whether the precedent of the Cabaniss, Thacker and Stokes cases should be
followed in cases involving denial of constitutional property rights."  207
Va., at 715, 152 S. E. 2d, at 284.  The Court then addressed O'Brien's
constitutional claim on the merits and ruled against her.  As a result,
there was no need to decide if she should be allowed an exception to the
"mandatory" time requirement, id., at 709, 152 S. E. 2d, at 280, and her
appeal was dismissed as untimely.
    Coleman argues that O'Brien demonstrates that the Virginia Supreme
Court will review the merits of constitutional claims before deciding
whether to dismiss an appeal as untimely.  The court in O'Brien did conduct
such a review, but the court also explicitly declined to announce a rule
that there is a constitutional exception to the time requirement for filing
a notice of appeal.  There is no evidence other than O'Brien that the
Virginia Supreme Court has ever conducted such a review and O'Brien
explicitly declined to announce such a practice.  We decline Coleman's
invitation to announce such a practice for that court.
    Finally, Coleman argues that the Virginia Supreme Court's dismissal
order in this case is at least ambiguous because it was issued "[u]pon
consideration" of all the filed papers, including Coleman's petition for
appeal and the Commonwealth's brief in opposition, both of which discussed
the merits of Coleman's federal claims.  There is no doubt that the
Virginia Supreme Court's "consideration" of all filed papers adds some
ambiguity, but we simply cannot read it as overriding the court's explicit
grant of a dismissal motion based solely on procedural grounds.  Those
grounds are independent of federal law.
    Coleman contends also that the procedural bar was not adequate to
support the judgment.  Coleman did not petition for certiorari on this
question, and we therefore accept the Court of Appeals conclusion that the
bar was adequate.  See 895 F. 2d, at 143.

IV
    In Daniels v. Allen, the companion case to Brown v. Allen, 344 U. S.
443 (1953), we confronted a situation nearly identical to that here.
Petitioners were convicted in a North Carolina trial court, and then were
one day late in filing their appeal as of right in the North Carolina
Supreme Court.  That court rejected the appeals as procedurally barred.  We
held that federal habeas was also barred unless petitioners could prove
that they were "detained without opportunity to appeal because of lack of
counsel, incapacity, or some interference by officials."  Id., at 485-486.
    Fay v. Noia, 372 U. S. 391 (1963), overruled this holding.  Noia failed
to appeal at all in state court his state conviction, and then sought
federal habeas review of his claim that his confession had been coerced.
This Court held that such a procedural default in state court does not bar
federal habeas review unless the petitioner has deliberately bypassed state
procedures by intentionally forgoing an opportunity for state review.  Id.,
at 438-439.  Fay thus created a presumption in favor of federal habeas
review of claims procedurally defaulted in state court.  The Court based
this holding on its conclusion that a State's interest in orderly procedure
are sufficiently vindicated by the prisoner's forfeiture of his state
remedies.  "Whatever residuum of state interest there may be under such
circumstances is manifestly insufficient in the face of the federal policy
. . . of affording an effective remedy for restraints contrary to the
Constitution."  Id., at 433-434.
    Our cases after Fay that have considered the effect of state procedural
default on federal habeas review have taken a markedly different view of
the important interests served by state procedural rules.  Francis v.
Henderson, 425 U. S. 536 (1976), involved a Louisiana prisoner challenging
in federal habeas the composition of the grand jury that had indicted him.
Louisiana law provided that any such challenge must be made in advance of
trial or it would be deemed waived.  Because Francis had not raised a
timely objection, the Louisiana courts refused to hear his claim.  In
deciding whether this state procedural default would also bar review in
federal habeas, we looked to our decision in Davis v. United States, 411 U.
S. 233 (1973).  Davis, a federal prisoner, had defaulted an identical
federal claim pursuant to Federal Rule of Criminal Procedure 12(b)(2).  We
held that a federal court on collateral review could not hear the claim
unless Davis could show "cause" for his failure to challenge the
composition of the grand jury before trial and actual prejudice as a result
of the alleged constitutional violations.  Id., at 242-245.
    The Francis Court noted the important interests served by the pretrial
objection requirement of Rule 12(b)(2) and the parallel state rule: the
possible avoidance of an unnecessary trial or of a retrial, the difficulty
of making factual determinations concerning grand juries long after the
indictment has been handed down and the grand jury disbanded, and the
potential disruption to numerous convictions of finding a defect in a grand
jury only after the jury has handed down indictments in many cases.
Francis, supra, at 540-541.  These concerns led us in Davis to enforce Rule
12(b)(2) in collateral review.  We concluded in Francis that a proper
respect for the States required that federal courts give to the state
procedural rule the same effect they give to the federal rule:


    "If, as Davis held, the federal courts must give effect to these
important and legitimate concerns in MDRV 2255 proceedings, then surely
considerations of comity and federalism require that they give no less
effect to the same clear interests when asked to overturn state criminal
convictions.  These considerations require that recognition be given `to
the legitimate interests of both State and National Governments, and . . .
[that] the National Government, anxious though it may be to vindicate and
protect federal rights and federal interests, always [endeavor] to do so in
ways that will not unduly interfere with the legitimate activities of the
States.'  Younger v. Harris, 401 U. S. 37, 44.  `Plainly the interest in
finality is the same with regard to both federal and state prisoners. . . .
There is no reason to . . . give greater preclusive effect to procedural
defaults by federal defendants than to similar defaults by state
defendants.  To hold otherwise would reflect an anomalous and erroneous
view of federal-state relations.'  Kaufman v. United States, 394 U. S. 217,
228."  Francis, supra, at 541-542.


We held that Francis' claim was barred in federal habeas unless he could
establish cause and prejudice.  Id., at 542.
    Wainwright v. Sykes, 433 U. S. 72 (1977), applied the cause and
prejudice standard more broadly.  Sykes did not object at trial to the
introduction of certain inculpatory statements he had earlier made to the
police.  Under Florida law, this failure barred state courts from hearing
the claim on either direct appeal or state collateral review.  We
recognized that this contemporaneous objection rule served strong state
interests in the finality of its criminal litigation.  Id., at 88-90.  To
protect these interests, we adopted the same presumption against federal
habeas review of claims defaulted in state court for failure to object at
trial that Francis had adopted in the grand jury context: the cause and
prejudice standard.  "We believe the adoption of the Francis rule in this
situation will have the salutary effect of making the state trial on the
merits the `main event,' so to speak, rather than a `tryout on the road'
for what will later be the determinative federal habeas hearing."  Id., at
90.
    In so holding, Wainwright limited Fay to its facts.  The cause and
prejudice standard in federal habeas evinces far greater respect for state
procedural rules than does the deliberate bypass standard of Fay.  These
incompatible rules are based on very different conceptions of comity and of
the importance of finality in state criminal litigation.  See Hill, The
Forfeiture of Constitutional Rights in Criminal Cases, 78 Colum. L. Rev.
1050, 1053-1059 (1978).  In Wainwright, we left open the question whether
the deliberate bypass standard still applied to a situation like that in
Fay, where a petitioner has surrendered entirely his right to appeal his
state conviction.  Wainwright, 433 U. S., at 88, n. 12.  We rejected
explicitly, however, "the sweeping language of Fay v. Noia, going far
beyond the facts of the case eliciting it."  Id., at 87-88.
    Our cases since Sykes have been unanimous in applying the cause and
prejudice standard.  Engle v. Isaac, 456 U. S. 107 (1982), held that the
standard applies even in cases in which the alleged constitutional error
impaired the truthfinding function of the trial.  Respondents had failed to
object at trial to jury instructions that placed on them the burden of
proving self defense.  Ohio's contemporaneous objection rule barred
respondents' claim on appeal that the burden should have been on the State.
We held that this independent and adequate state ground barred federal
habeas as well, absent a showing of cause and prejudice.
    Recognizing that the writ of habeas corpus "is a bulwark against
convictions that violate fundamental fairness," we also acknowledged that
"the Great Writ entails significant costs."  Id., at 126 (internal
quotations omitted).  The most significant of these is the cost to finality
in criminal litigation that federal collateral review of state convictions
entails:


"As Justice Harlan once observed, `[b]oth the individual criminal defendant
and society have an interest in insuring that there will at some point be
the certainty that comes with an end to litigation, and that attention will
ultimately be focused not on whether a conviction was free from error but
rather on whether the prisoner can be restored to a useful place in the
community.'  Sanders v. United States, 373 U. S. 1, 24-25 (1963)
(dissenting opinion)."  Id., at 127.


Moreover, "[f]ederal intrusions into state criminal trials frustrate both
the States' sovereign power to punish offenders and their good-faith
attempts to honor constitutional rights."  Id., at 128.  These costs are
particularly high, we explained, when a state prisoner, through a
procedural default, prevents adjudication of his constitutional claims in
state court.  Because these costs do not depend on the type of claim the
prisoner raised, we reaffirmed that a state procedural default of any
federal claim will bar federal habeas unless the petitioner demonstrates
cause and actual prejudice.  Id., at 129.  We also explained in Engle that
the cause and prejudice standard will be met in those cases where review of
a state prisoner's claim is necessary to correct "a fundamental miscarriage
of justice."  Id., at 135.  See also Murray v. Carrier, 477 U. S. 478, 496
(1986) ("[W]here a constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal habeas court may
grant the writ even in the absence of a showing of cause for the procedural
default").
    In Carrier, we applied the cause and prejudice standard to a
petitioner's failure to raise a particular claim in his state court appeal.
Again, we emphasized the important interests served by state procedural
rules at every stage of the judicial process, and the harm to the States
that results when federal courts ignore these rules:


"A State's procedural rules serve vital purposes at trial, on appeal, and
on state collateral attack. . . .
    ". . . `Each State's complement of procedural rules . . . channel[s],
to the extent possible, the resolution of various types of questions to the
stage of the judicial process at which they can be resolved most fairly and
efficiently.' [Reed v. Ross, 468 U. S. 1, 10 (1984).] . . . Failure to
raise a claim on appeal reduces the finality of appellate proceedings,
deprives the appellate court of an opportunity to review trial error, and
`undercut[s] the State's ability to enforce its procedural rules.'  Engle,
456 U. S., at 129."  Id., at 490-491.


    In Carrier, as in Sykes, we left open the question whether Fay's
deliberate bypass standard continued to apply under the facts of that case,
where a state prisoner has defaulted his entire appeal.  See Carrier,
supra, at 492; Sykes, 433 U. S., at 88, n. 12.  We are now required to
answer this question.  By filing late, Coleman defaulted his entire state
collateral appeal.  This was no doubt an inadvertent error, and respondent
concedes that Coleman did not "understandingly and knowingly" forgo the
privilege of state collateral appeal.  See Fay, 372 U. S., at 439.
Therefore, if the Fay deliberate bypass standard still applies, Coleman's
state procedural default will not bar federal habeas.
    In Harris, we described in broad terms the application of the cause and
prejudice standard, hinting strongly that Fay had been superseded:


"Under Sykes and its progeny, an adequate and independent finding of
procedural default will bar federal habeas review of the federal claim,
unless the habeas petitioner can show `cause' for the default and
`prejudice attributable thereto,' Murray v. Carrier, 477 U. S. 478, 485
(1986), or demonstrate that failure to consider the federal claim will
result in a ` " `fundamental miscarriage of justice.' " '  Id., at 495,
quoting Engle v. Isaac, 456 U. S. 107, 135 (1982).  See also Smith v.
Murray, 477 U. S. 527, 537 (1986)."  Harris, 489 U. S., at 262.


    We now make it explicit: In all cases in which a state prisoner has
defaulted his federal claims in state court pursuant to an independent and
adequate state procedural rule, federal habeas review of the claims is
barred unless the prisoner can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.  Fay was based on a conception of
federal/state relations that undervalued the importance of state procedural
rules.  The several cases after Fay that applied the cause and prejudice
standard to a variety of state procedural defaults represent a different
view.  We now recognize the important interest in finality served by state
procedural rules, and the significant harm to the States that results from
the failure of federal courts to respect them.  Cf. McCleskey v. Zant, 499
U. S. ---, --- (1991) (Slip op., at 22) ("Though Fay v. Noia, supra, may
have cast doubt upon these propositions, since Fay we have taken care in
our habeas corpus decisions to reconfirm the importance of finality").
    Carrier applied the cause and prejudice standard to the failure to
raise a particular claim on appeal.  There is no reason that the same
standard should not apply to a failure to appeal at all.  All of the
State's interests -- in channeling the resolution of claims to the most
appropriate forum, in finality, and in having an opportunity to correct its
own errors -- are implicated whether a prisoner defaults one claim or all
of them.  A federal court generally should not interfere in either case.
By applying the cause and prejudice standard uniformly to all independent
and adequate state procedural defaults, we eliminate the irrational
distinction between Fay and the rule of cases like Francis, Sykes, Engle,
and Carrier.
    We also eliminate inconsistency between the respect federal courts show
for state procedural rules and the respect they show for their own.  This
Court has long understood the vital interest served by federal procedural
rules, even when they serve to bar federal review of constitutional claims.
In Yakus v. United States, 321 U. S. 414 (1944), for example, the Court
explained:


"No procedural principle is more familiar to this Court than that a
constitutional right may be forfeited in criminal as well as civil cases by
the failure to make timely assertion of the right before a tribunal having
jurisdiction to determine it."  Id., at 444.


    In Browder v. Director, Illinois Dept. of Corrections, 434 U. S. 257
(1978), we held that the appeal of a state prisoner in federal habeas was
barred because untimely under Federal Rule Appellate Procedure 4(a).  In
describing the "mandatory and jurisdictional" nature of the rule and its
justification, we might as well have been describing Virginia Supreme Court
Rule 5:5(a):

"This 30-day time limit is `mandatory and jurisdictional.' . . . The
purpose of the rule is clear: It is `to set a definite point of time when
litigation should be at an end, unless within that time the prescribed
application has been made; and if it has not been, to advise prospective
appellees that they are freed of the appellant's demands.  Any other
construction of the statute would defeat its purpose.'  Matton Steamboat
[Co. v. Murphy, 319 U. S. 412, 415 (1943)]."  Browder, supra, at 264
(citations omitted).


No less respect should be given to state rules of procedure.  See Francis,
425 U. S., at 541-542.

V


A
    Coleman maintains that there was cause for his default.  The late
filing was, he contends, the result of attorney error of sufficient
magnitude to excuse the default in federal habeas.
    Murray v. Carrier considered the circumstances under which attorney
error constitutes cause.  Carrier argued that his attorney's inadvertence
in failing to raise certain claims in his state appeal constituted cause
for the default sufficient to allow federal habeas review.  We rejected
this claim, explaining that the costs associated with an ignorant or
inadvertent procedural default are no less than where the failure to raise
a claim is a deliberate strategy: it deprives the state courts of the
opportunity to review trial errors.  When a federal habeas court hears such
a claim, it undercuts the State's ability to enforce its procedural rules
just as surely as when the default was deliberate.  477 U. S., at 487.  We
concluded: "So long as a defendant is represented by counsel whose
performance is not constitutionally ineffective under the standard
established in Strickland v. Washington, [466 U. S. 688 (1984)], we discern
no inequity in requiring him to bear the risk of attorney error that
results in a procedural default."  Id., at 488.
    Applying the Carrier rule as stated, this case is at an end.  There is
no constitutional right to an attorney in state post conviction
proceedings.  Pennsylvania v. Finley, 481 U. S. 551 (1987); Murray v.
Giarratano, 492 U. S. 1 (1989) (applying the rule to capital cases).
Consequently, a petitioner cannot claim constitutionally ineffective
assistance of counsel in such proceedings.  See Wainwright v. Torna, 455 U.
S. 586 (1982) (where there is no constitutional right to counsel there can
be no deprivation of effective assistance).  Coleman contends that it was
his attorney's error that led to the late filing of his state habeas
appeal.  This error cannot be constitutionally ineffective, therefore
Coleman must "bear the risk of attorney error that results in a procedural
default."
    Coleman attempts to avoid this reasoning by arguing that Carrier does
not stand for such a broad proposition.  He contends that Carrier applies
by its terms only in those situations where it is possible to state a claim
for ineffective assistance of counsel.  Where there is no constitutional
right to counsel, Coleman argues, it is enough that a petitioner
demonstrate that his attorney's conduct would meet the Strickland standard,
even though no independent Sixth Amendment claim is possible.
    This argument is inconsistent not only with the language of Carrier,
but the logic of that opinion as well.  We explained clearly that "cause"
under the cause and prejudice test must be something external to the
petitioner, something that cannot fairly be attributed to him: "[W]e 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."  477 U. S., at 488.  For example, "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."  Ibid.  See also id., at 492
("[C]ause for a procedural default on appeal ordinarily requires a showing
of some external impediment preventing counsel from constructing or raising
the claim").
    Attorney ignorance or inadvertence is not "cause" because the attorney
is the petitioner's agent when acting, or failing to act, in furtherance of
the litigation, and the petitioner must "bear the risk of attorney error."
Id., at 488.  See Link v. Wabash Railroad Co., 370 U. S. 626, 634 (1962)
(in "our system of representative litigation . . . each party is deemed
bound by the acts of his lawyer-agent"); Irwin v. Veterans Administration,
498 U. S. ---, --- (1990) (same).  Attorney error that constitutes
ineffective assistance of counsel is cause, however.  This is not because,
as Coleman contends, the error is so bad that "the lawyer ceases to be an
agent of the petitioner."  Brief for Petitioner 29.  In a case such as
this, where the alleged attorney error is inadvertence in failing to file a
timely notice, such a rule would be contrary to well-settled principles of
agency law.  See, e. g., Restatement (Second) of Agency MDRV 242 (1958)
(master is subject to liability for harm caused by negligent conduct of
servant within the scope of employment).  Rather, as Carrier explains, "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."  477 U. S., at 488.  In other words, it is not the
gravity of the attorney's error that matters, but that it constitutes a
violation of petitioner's right to counsel, so that the error must be seen
as an external factor, i. e., "imputed to the State."  See also Evitts v.
Lucey, 469 U. S. 387, 396 (1985) ("The constitutional mandate [guaranteeing
effective assistance of counsel] is addressed to the action of the State in
obtaining a criminal conviction through a procedure that fails to meet the
standard of due process of law").
    Where a petitioner defaults a claim as a result of the denial of the
right to effective assistance of counsel, the State, which is responsible
for the denial as a constitutional matter, must bear the cost of any
resulting default and the harm to state interests that federal habeas
review entails.  A different allocation of costs is appropriate in those
circumstances where the State has no responsibility to ensure that the
petitioner was represented by competent counsel.  As between the State and
the petitioner, it is the petitioner who must bear the burden of a failure
to follow state procedural rules.  In the absence of a constitutional
violation, the petitioner bears the risk in federal habeas for all attorney
errors made in the course of the representation, as Carrier says
explicitly.

B
    Among the claims Coleman brought in state habeas, and then again in
federal habeas, is ineffective assistance of counsel during trial,
sentencing, and appeal.  Coleman contends that, at least as to these
claims, attorney error in state habeas must constitute cause.  This is
because, under Virginia law at the time of Coleman's trial and direct
appeal, ineffective assistance of counsel claims related to counsel's
conduct during trial or appeal could be brought only in state habeas.  See
Walker v. Mitchell, 224 Va. 568, 571, 299 S. E. 2d 698, 699-700 (1983);
Dowell v. Commonwealth, 3 Va. App. 555, 562, 351 S. E. 2d 915, 919 (1987).
Coleman argues that attorney error in failing to file timely in the first
forum in which a federal claim can be raised is cause.
    We reiterate that counsel's ineffectiveness will constitute cause only
if it is an independent constitutional violation.  Finley and Giarratano
established that there is no right to counsel in state collateral
proceedings.  For Coleman to prevail, therefore, there must be an exception
to the rule of Finley and Giarratano in those cases where state collateral
review is the first place a prisoner can present a challenge to his
conviction.  We need not answer this question broadly, however, for one
state court has addressed Coleman's claims: the state habeas trial court.
The effectiveness of Coleman's counsel before that court is not at issue
here.  Coleman contends that it was the ineffectiveness of his counsel
during the appeal from that determination that constitutes cause to excuse
his default.  We thus need to decide only whether Coleman had a
constitutional right to counsel on appeal from the state habeas trial court
judgment.  We conclude that he did not.
    Douglas v. California, 372 U. S. 353 (1963), established that an
indigent criminal defendant has a right to appointed counsel in his first
appeal as of right in state court.  Evitts v. Lucey, 469 U. S. 387 (1985),
held that this right encompasses a right to effective assistance of counsel
for all criminal defendants in their first appeal as of right.  We based
our holding in Douglas on that "equality demanded by the Fourteenth
Amendment."  372 U. S., at 358.  Recognizing that "[a]bsolute equality is
not required," we nonetheless held that "where the merits of the one and
only appeal an indigent has as of right are decided without benefit of
counsel, we think an unconstitutional line has been drawn between rich and
poor."  Id., at 357 (emphasis original).
    Coleman has had his "one and only appeal," if that is what a state
collateral proceeding may be considered; the Buchanan County Circuit Court,
after a two-day evidentiary hearing, addressed Coleman's claims of trial
error, including his ineffective assistance of counsel claims.  What
Coleman requires here is a right to counsel on appeal from that
determination.  Our case law will not support it.
    In Ross v. Moffitt, 417 U. S. 600 (1974), and Pennsylvania v. Finley,
481 U. S. 551 (1987), we declined to extend the right to counsel beyond the
first appeal of a criminal conviction.  We held in Ross that neither the
fundamental fairness required by the Due Process Clause nor the Fourteenth
Amendment's equal protection guarantee necessitated that States provide
counsel in state discretionary appeals where defendants already had one
appeal as of right.  "The duty of the State under our cases is not to
duplicate the legal arsenal that may be privately retained by a criminal
defendant in a continuing effort to reverse his conviction, but only to
assure the indigent defendant an adequate opportunity to present his claims
fairly in the context of the State's appellate process."  417 U. S., at
616.  Similarly, in Finley we held that there is no right to counsel in
state collateral proceedings after exhaustion of direct appellate review.
481 U. S., at 556 (citing Ross, supra).
    These cases dictate the answer here.  Given that a criminal defendant
has no right to counsel beyond his first appeal in pursuing state
discretionary or collateral review, it would defy logic for us to hold that
Coleman had a right to counsel to appeal a state collateral determination
of his claims of trial error.
    Because Coleman had no right to counsel to pursue his appeal in state
habeas, any attorney error that led to the default of Coleman's claims in
state court cannot constitute cause to excuse the default in federal
habeas.  As Coleman does not argue in this Court that federal review of his
claims is necessary to prevent a fundamental miscarriage of justice, he is
barred from bringing these claims in federal habeas.  Accordingly, the
judgment of the Court of Appeals is

Affirmed.
 
 
 
 
 
 

------------------------------------------------------------------------------
1
    This rule does not apply if the petitioner failed to exhaust state
remedies and the court to which petitioner would be required to present his
claims in order to meet the exhaustion requirement would now find the
claims procedurally barred.  In such a case there is a procedural default
for purposes of federal habeas regardless of the decision of the last state
court to which the petitioner actually presented his claims.  See Harris,
489 U. S., at 269-270 (O'Connor, J., concurring); Teague v. Lane, 489 U. S.
288, 297-298 (1989).





Subject: 89-7662 -- CONCUR/DISSENT, COLEMAN v. THOMPSON

 


    SUPREME COURT OF THE UNITED STATES


No. 89-7662



ROGER KEITH COLEMAN, PETITIONER v. CHARLES E. THOMPSON, WARDEN

on writ of certiorari to the united states court of appeals for the fourth
circuit

[June 24, 1991]



    Justice White, concurring and concurring in the judgment.
    I concur in the judgment of the Court and I join in its opinion, but
add a few words concerning what occurred below.  Harris v. Reed stated that
"a procedural default does not bar consideration of a federal claim on
either direct or habeas review unless the last state court rendering a
judgment in the case ` "clearly and expressly" ' states that its judgment
rests on a state procedural bar. "  489 U. S. 255, 263 (1989), quoting
Caldwell v. Mississippi, 472 U. S. 320, 327 (1985), and Michigan v. Long,
463 U. S. 1032, 1041 (1983).  If there were nothing before us but the order
granting the State's motion to dismiss for untimeliness, it would be clear
enough that the dismissal was based on a procedural default.
    But the state court did not grant the State's explicit request for an
early ruling on the motion.  Instead, the court delayed ruling on the
motion to dismiss, and hence briefs on both the motion and the merits were
filed.  Six months later, the court "upon consideration whereof" granted
the State's motion to dismiss the appeal.  Hence petitioner's argument that
the court studied the merits of the federal claims to determine whether to
waive the procedural default, found those claims lacking, and only then
granted the motion to dismiss; it is as though the court had said that it
was granting the motion to dismiss the appeal as untimely because the
federal claims were untenable and provided the court no reason to waive the
default.
    The predicate for this argument is that on occasion the Virginia
Supreme Court waives the untimeliness rule.  If that were true, the rule
would not be an adequate and independent state ground barring direct or
habeas review.  Cf.  Ake v. Oklahoma, 470 U. S. 68, 75 (1985).  The filing
of briefs and their consideration would do no more than buttress the claim
that the rule is not strictly enforced.
    Petitioner argues that the Virginia court does in fact waive the rule
on occasion, but I am not now convinced that there is a practice of waiving
the rule when constitutional issues are at stake, even fundamental ones.
The evidence is too scanty to permit a conclusion that the rule is no
longer an adequate and independent state ground barring federal review.
The fact that merits briefs were filed and were considered by the court,
without more, does not justify a different conclusion.
------------------------------------------------------------------------------




Subject: 89-7662 -- DISSENT, COLEMAN v. THOMPSON

 


    SUPREME COURT OF THE UNITED STATES


No. 89-7662



ROGER KEITH COLEMAN, PETITIONER v. CHARLES E. THOMPSON, WARDEN

on writ of certiorari to the united states court of appeals for the fourth
circuit

[June 24, 1991]



    Justice Blackmun, with whom Justice Marshall and Justice Stevens join,
dissenting.
    Federalism; comity; state sovereignty; preservation of state resources;
certainty: the majority methodically inventories these multifarious state
interests before concluding that the plain-statement rule of Michigan v.
Long, 463 U. S. 1032 (1983), does not apply to a summary order.  One
searches the majority's opinion in vain, however, for any mention of
petitioner Coleman's right to a criminal proceeding free from
constitutional defect or his interest in finding a forum for his
constitutional challenge to his conviction and sentence of death.  Nor does
the majority even allude to the "important need for uniformity in federal
law," id., at 1040, which justified this Court's adoption of the
plain-statement rule in the first place.  Rather, displaying obvious
exasperation with the breadth of substantive federal habeas doctrine and
the expansive protection afforded by the Fourteenth Amendment's guarantee
of fundamental fairness in state criminal proceedings, the Court today
continues its crusade to erect petty procedural barriers in the path of any
state prisoner seeking review of his federal constitutional claims.
Because I believe that the Court is creating a Byzantine morass of
arbitrary, unnecessary, and unjustifiable impediments to the vindication of
federal rights, I dissent.

I
    The Court cavalierly claims that "[t]his is a case about federalism,"
ante, at 1, and proceeds without explanation to assume that the purposes of
federalism are advanced whenever a federal court refrains from reviewing an
ambiguous state court judgment.  Federalism, however, has no inherent
normative value: it does not, as the majority appears to assume, blindly
protect the interests of States from any incursion by the federal courts.
Rather, federalism secures to citizens the liberties that derive from the
diffusion of sovereign power.  "Federalism is a device for realizing the
concepts of decency and fairness which are among the fundamental principles
of liberty and justice lying at the base of all our civil and political
institutions."  Brennan, Federal Habeas Corpus and State Prisoners: An
Exercise in Federalism, 7 Utah L. Rev. 423, 442 (1961).  See also The
Federalist No. 51, p. 324 (C. Rossiter ed. 1961) (J. Madison) ("Justice is
the end of government.  It is the end of civil society").  In this context,
it cannot lightly be assumed that the interests of federalism are fostered
by a rule that impedes federal review of federal constitutional claims.
    Moreover, the form of federalism embraced by today's majority bears
little resemblance to that adopted by the Framers of the Constitution and
ratified by the original States.  The majority proceeds as if the sovereign
interests of the States and the Federal Government were co-equal.  Ours,
however, is a federal republic, conceived on the principle of a supreme
federal power and constituted first and foremost of citizens, not of
sovereign States.  The citizens expressly declared: "This Constitution, and
the Laws of the United States which shall be made in Pursuance thereof . .
. shall be the supreme Law of the Land."  U. S. Const. Art. VI., cl. 2.
James Madison felt that a constitution without this clause "would have been
evidently and radically defective."  The Federalist No. 44, p. 286 (C.
Rossiter ed. 1961).  The ratification of the Fourteenth Amendment by the
citizens of the several States expanded federal powers even further, with a
corresponding diminution of state sovereignty.  See Fitzpatrick v. Bitzer,
427 U. S. 445, 453-456 (1976); Ex parte Virginia, 100 U. S. 339, 344-348
(1879).  Thus, "the sovereignty of the States is limited by the
Constitution itself."  Garcia v. San Antonio Metropolitan Transit
Authority, 469 U. S. 528, 548 (1985).
    Federal habeas review of state court judgments, respectfully employed
to safeguard federal rights, is no invasion of State sovereignty.  Cf. Ex
parte Virginia, 100 U. S., at 346.  Since 1867, Congress has acted within
its constitutional authority to " `interpose the federal courts between the
States and the people, as guardians of the people's federal rights -- to
protect the people from unconstitutional action.' "  Reed v. Ross, 468 U.
S. 1, 10 (1984), quoting Mitchum v. Foster, 407 U. S. 225, 242 (1972).  See
28 U. S. C. MDRV 2254.  Justice Frankfurter, in his separate opinion in
Brown v. Allen, 344 U. S. 443, 510 (1953), recognized this:


"Insofar as [federal habeas] jurisdiction enables federal district courts
to entertain claims that State Supreme Courts have denied rights guaranteed
by the United States Constitution, it is not a case of a lower court
sitting in judgment on a higher court.  It is merely one aspect of
respecting the Supremacy Clause of the Constitution whereby federal law is
higher than State law."


Thus, the considered exercise by federal courts -- in vindication of
fundamental constitutional rights -- of the habeas jurisdiction conferred
on them by Congress exemplifies the full expression of this Nation's
federalism.
    That the majority has lost sight of the animating principles of
federalism is well illustrated by its discussion of the duty of a federal
court to determine whether a state court judgment rests on an adequate and
independent state ground.  According to the majority's formulation,
establishing this duty in the federal court serves to diminish the risk
that a federal habeas court will review the federal claims of a prisoner in
custody pursuant to a judgment that rests upon an adequate and independent
state ground.  In reality, however, this duty of a federal court to
determine its jurisdiction originally was articulated to ensure that
federal rights were not improperly denied a federal forum.  Thus, the quote
artfully reconstituted by the majority, ante, at 11, originally read: "[I]t
is incumbent upon this Court, when it is urged that the decision of the
state court rests upon a non-federal ground, to ascertain for itself, in
order that constitutional guarantees may appropriately be enforced, whether
the asserted nonfederal ground independently and adequately supports the
judgment" (emphasis added).  Abie State Bank v. Bryan, 282 U. S. 765, 773
(1931).  Similarly, the Court has stated that the duty "cannot be
disregarded without neglecting or renouncing a jurisdiction conferred by
the law and designed to protect and maintain the supremacy of the
Constitution and the laws made in pursuance thereof."  Ward v. Board of
County Comm'rs, 253 U. S. 17, 23 (1920).  Indeed, the duty arose out of a
distinct distrust of state courts, which this Court perceived as attempting
to evade federal review.  See Broad River Power Co. v. South Carolina ex
rel. Daniel, 281 U. S. 537, 540 (1930) ("Even though the constitutional
protection invoked be denied on non-federal grounds, it is the province of
this Court to inquire whether the decision of the state court rests upon a
fair and substantial basis.  If unsubstantial, constitutional obligations
may not thus be evaded").
    From these noble beginnings, the Court has managed to transform the
duty to protect federal rights into a self-fashioned abdication.  Defying
the constitutional allocation of sovereign authority, the Court now
requires a federal court to scrutinize the state court judgment with an eye
to denying a litigant review of his federal claims rather than enforcing
those provisions of the federal Bill of Rights that secure individual
autonomy.

II
    Even if one acquiesced in the majority's unjustifiable elevation of
abstract federalism over fundamental precepts of liberty and fairness, the
Court's conclusion that the plain-statement rule of Michigan v. Long does
not apply to a summary order defies both settled understandings and
compassionate reason.

A
    As an initial matter, it cannot seriously be disputed that the Court's
opinion in Harris v. Reed, 489 U. S. 255 (1989), expressly considered this
issue and resolved the question quite contrary to the Court's holding
today.  Both Long and Harris involved a federal review of a state court
opinion that, on its face, addressed the merits of the underlying claims
and resolved those claims with express reference to both state and federal
law.  See Long, 463 U. S., at 1037, and n. 3; Harris, 489 U. S., at
257-258.  In each case, it was not disputed that the alleged state ground
had been invoked: the Court was faced with the question whether that state
ground was adequate to support the judgment and independent of federal law.
Accordingly, the Long and Harris Courts spoke of state court judgments that
"fairly appea[r] to rest primarily on federal law, or to be interwoven with
federal law," Long, 463 U. S., at 1040, or that contained "ambiguous . . .
references to state law."  Harris, 489 U. S., at 263.
    The majority asserts that these statements establish a factual
predicate for the application of the plain-statement rule.  Ante, at 10.
Neither opinion, however, purported to limit the application of the
plain-statement rule to the narrow circumstances presented in the case
under review.  In fact, the several opinions in Harris make plain that for
purposes of federal habeas, the Court was adopting the Long presumption for
all cases where federal claims are presented to state courts.
    The Harris Court expressed its understanding of Long unequivocally: "We
held in Long that unless the state court clearly expressed its reliance on
an adequate and independent state-law ground, this Court may address a
federal issue considered by the state court."  Harris, 489 U. S., at
262-263.  Armed with that understanding, the Court concluded that "a
procedural default does not bar consideration of a federal claim on either
direct or habeas review unless the last state court rendering a judgment in
the case ` "clearly and expressly" ' states that its judgment rests on a
state procedural bar."  Id., at 263, quoting Caldwell v. Mississippi 472 U.
S. 320, 327 (1985), in turn quoting Long, 463 U. S., at 1041.
    Justice O'Connor, in a concurring opinion joined by The Chief Justice
and Justice Scalia, echoed the majority's indication that the Long
presumption applied to all cases where a federal claim is presented to the
state courts.  She wrote separately to emphasize that the Court's opinion
did not alter the well-settled rule that federal courts may look to state
procedural-default rules in determining whether a federal claim has been
properly exhausted in the state courts.  See 489 U. S., at 268-270.  "[I]t
is simply impossible," according to the concurrence, "to `[r]equir[e] a
state court to be explicit in its reliance on a procedural default' . . .
where a claim raised on federal habeas has never been presented to the
state courts at all."  Id., at 270.  Certainly, if the Court's opinion had
been limited to cases where the state court's judgment fairly appeared to
rest on federal law or was interwoven with federal law, the point
painstakingly made in this concurrence would have been unnecessary.
    That Harris' adoption of the plain-statement rule for federal habeas
cases was intended to apply to all cases where federal claims were
presented to the state courts is confirmed by the exchange there between
the majority and the dissent.  In his dissenting opinion, Justice Kennedy
maintained that the Court's formulation of the plain-statement rule would
encourage habeas prisoners whose claims would otherwise be procedurally
barred to file "a never-ending stream of petitions for post-conviction
relief" in hope of being "rewarded with a suitably ambiguous rebuff,
perhaps a one-line order finding that a prisoner's claim `lacks merit' or
stating that relief is `denied' " (emphasis added).  Id., at 282.  The
Court responded that "the dissent's fear . . . that our holding will
submerge courts in a flood of improper prisoner petitions is unrealistic: a
state court that wishes to rely on a procedural bar rule in a one-line pro
forma order easily can write that `relief is denied for reasons of
procedural default.' "  Id., at 265, n. 12.  The Harris Court's holding
that the plain-statement rule applies to a summary order could not itself
have been more plain.  Because the majority acknowledges that the Virginia
Supreme Court's dismissal order "adds some ambiguity," ante, at 18, Harris
compels a federal habeas court to provide a forum for the consideration of
Coleman's federal claims.

B
    Notwithstanding the clarity of the Court's holding in Harris, the
majority asserts that Coleman has read the rule announced therein "out of
context."  Ante, at 10.  I submit, however, that it is the majority that
has wrested Harris out of the context of a preference for the vindication
of fundamental constitutional rights and that has set it down in a vacuum
of rhetoric about federalism.  In its attempt to justify a blind abdication
of responsibility by the federal courts, the majority's opinion marks the
nadir of the Court's recent habeas jurisprudence, where the discourse of
rights is routinely replaced with the functional dialect of interests.  The
Court's habeas jurisprudence now routinely, and without evident reflection,
subordinates fundamental constitutional rights to mere utilitarian
interests.  See, e. g., McCleskey v. Zant, --- U. S. --- (1991).  Such
unreflective cost-benefit analysis is inconsistent with the very idea of
rights.  See generally R. Cover and T. Aleinikoff, Dialectic Federalism:
Habeas Corpus and the Court, 86 Yale L. J. 1035, 1092 (1977).  The Bill of
Rights is not, after all, a collection of technical interests, and "surely
it is an abuse to deal too casually and too lightly with rights guaranteed"
therein.  Brown v. Allen, 344 U. S., at 498 (opinion of Frankfurter, J.).
    It is well settled that the existence of a state procedural default
does not divest a federal court of jurisdiction on collateral review.  See
Wainwright v. Sykes, 433 U. S. 72, 82-84 (1977).  Rather, the important
office of the federal courts in vindicating federal rights gives way to the
States' enforcement of their procedural rules to protect the States'
interest in being an equal partner in safeguarding federal rights.  This
accommodation furthers the values underlying federalism in two ways.
First, encouraging a defendant to assert his federal rights in the
appropriate state forum makes it possible for transgressions to be arrested
sooner and before they influence an erroneous deprivation of liberty.
Second, thorough examination of a prisoner's federal claims in state court
permits more effective review of those claims in federal court, honing the
accuracy of the writ as an implement to eradicate unlawful detention.  See
Rose v. Lundy, 455 U. S. 509, 519 (1982); Brown v. Allen, 344 U. S., at
500-501 (opinion of Frankfurter, J.).  The majority ignores these purposes
in concluding that a State need not bear the burden of making clear its
intent to rely on such a rule.  When it is uncertain whether a state court
judgment denying relief from federal claims rests on a procedural bar, it
is inconsistent with federalism principles for a federal court to exercise
discretion to decline to review those federal claims.
    In justifying its new rule, the majority first announces that, as a
practical matter, the application of the Long presumption to a summary
order entered in a case where a state prisoner presented federal
constitutional claims to a state court is unwarranted, because "it is
simply not true that the `most reasonable explanation' is that the state
judgment rested on federal grounds."  Ante, at 12, quoting Long, 463 U. S.,
at 1041.  The majority provides no support for this flat assertion.  In
fact, the assertion finds no support in reality.  "Under our federal
system, the federal and state `courts [are] equally bound to guard and
protect the rights secured by the Constitution.' "  Rose v. Lundy, 455 U.
S., at 518, quoting, Ex parte Royall, 117 U. S. 241, 251 (1886).
Accordingly, state prisoners are required to present their federal claims
to state tribunals before proceeding to federal habeas, "to protect the
state courts' role in the enforcement of federal law and prevent disruption
of state judicial proceedings."  455 U. S., at 518.  See 28 U. S. C. MDRV
2254.  Respect for the States' responsible assumption of this solemn trust
compels the conclusion that state courts presented with federal
constitutional claims actually resolve those claims unless they indicate to
the contrary.  Cf. Brown v. Allen, 344 U. S., at 512 (opinion of
Frankfurter, J.) ("[The availability of the writ of habeas corpus] does not
mean that prison doors may readily be opened.  It does mean that
explanation may be exacted why they should remain closed").
    The majority claims that applying the plain-statement rule to summary
orders "would place burdens on the States and state courts," ante, at 13,
suggesting that these burdens are borne independently by the States and
their courts.  The State, according to the majority, "pays the price" for
federal review of state prisoner claims "in terms of uncertainty and delay"
as well as in the cost of a retrial.  Ibid.  The majority is less clear
about the precise contours of the burden this rule is said to place on
state courts, merely asserting that it "would also put too great a burden
on the state courts."  Ante, at 14.
    The majority's attempt to distinguish between the interests of state
courts and the interests of the States in this context is inexplicable.
States do not exist independent of their officers, agents, and citizens.
Rather, "[t]hrough the structure of its government, and the character of
those who exercise government authority, a State defines itself as a
sovereign."  Gregory v. Ashcroft, --- U. S. ---, --- (1991) (slip op. 6)
See also Ex parte Virginia, 100 U. S., at 347 ("A State acts by its
legislative, its executive, or its judicial authorities.  It can act in no
other way").  The majority's novel conception of dichotomous interests is
entirely unprecedented.  See ibid. ("[H]e [who] acts in the name and for
the State, and is clothed with the State's power, his act is that of the
State").  Moreover, it admits of no readily apparent limiting principle.
For instance, should a federal habeas court decline to review claims that
the state judge committed constitutional error at trial simply because the
costs of a retrial will be borne by the State?  After all, as the majority
asserts, "there is little the State can do about" constitutional errors
made by its trial judges.  Ante, at 13.
    Even if the majority correctly attributed the relevant state interests,
they are, nonetheless, misconceived.  The majority appears most concerned
with the financial burden that a retrial places on the States.  Of course,
if the initial trial conformed to the mandate of the Federal Constitution,
not even the most probing federal review would necessitate a retrial.
Thus, to the extent the State must "pay the price" of retrying a state
prisoner, that price is incurred as a direct result of the State's failure
scrupulously to honor his federal rights, not as a consequence of unwelcome
federal review.  See Teague v. Lane, 489 U. S. 288, 306 (opinion of
O'Connor, J., joined by The Chief Justice, Justice Scalia, and Justice
Kennedy, quoting Desist v. United States, 394 U. S. 244, 262-263 (1969)
(Harlan, J., dissenting)) (" `[T]he threat of habeas serves as a necessary
additional incentive for trial and appellate courts throughout the land to
conduct their proceedings in a manner consistent with established
constitutional standards' ").
    The majority also contends without elaboration that a "broad
presumption [of federal jurisdiction] would . . . put too great a burden on
the state courts."  Ante, at 14.  This assertion not only finds no support
in Long, where the burden of the presumption on state courts is not even
mentioned, but also is premised on the misconception that the
plainstatement rule serves only to relieve the federal court of the
"bother" of determining the basis of the relevant state-court judgment.
Viewed responsibly, the plain-statement rule provides a simple mechanism by
which a state court may invoke the discretionary deference of the federal
habeas court and virtually insulate its judgment from federal review.
While state courts may choose to draw their orders as they wish, the right
of a state prisoner, particularly one sentenced to death, to have his
federal claim heard by a federal habeas court is simply too fundamental to
yield to the State's incidental interest in issuing ambiguous summary
orders.

C
    Not only is the majority's abandonment of the plain-statement rule for
purposes of summary orders unjustified, it is also misguided.  In Long, the
Court adopted the plain-statement rule because we had "announced a number
of principles in order to help us determine" whether ambiguous state court
judgments rested on adequate and independent state grounds, but had "not
developed a satisfying and consistent approach for resolving this vexing
issue."  463 U. S., at 1038.  Recognizing that "[t]his ad hoc method of
dealing with cases that involve possible adequate and independent state
grounds is antithetical to the doctrinal consistency that is required when
sensitive issues of federal-state relations are involved," id., at 1039
(emphasis added), the Court determined that a broad presumption of federal
jurisdiction combined with a simple mechanism by which state courts could
clarify their intent to rely on state grounds would best "provide state
judges with a clearer opportunity to develop state jurisprudence unimpeded
by federal interference, and yet will preserve the integrity of federal
law."  Id., at 1041.  Today's decision needlessly resurrects the piecemeal
approach eschewed by Long, and, as a consequence, invites the intrusive and
unsatisfactory federal inquiry into unfamiliar state law that Long sought
to avoid.
    The Court's decisions in this case and in Ylst v. Nunnemaker, post,
well reveal the illogic of the ad hoc approach.  In this case, to determine
whether the admittedly ambiguous state-court judgment rests on an adequate
and independent state ground, the Court looks to the "nature of the
disposition" and the "surrounding circumstances" that "indicat[e]" that the
basis of the decision was procedural default.  Ylst, post, at 5.  This
method of searching for "clues" to the meaning of a facially ambiguous
order is inherently indeterminate.  Tellingly, both the majority and
concurring opinions in this case concede that it remains uncertain whether
the state court relied on a procedural default.  See ante, at 18 ("There is
no doubt that the Virginia Supreme Court's `consideration' of all filed
papers adds some ambiguity"); ante, at 1-2 (White, J., concurring) ("[I]t
is as though the court had said that it was granting the motion to dismiss
the appeal as untimely because the federal claims were untenable and
provided the court no reason to waive the default").  The plain statement
rule effectively and equitably eliminates this unacceptable uncertainty.  I
cannot condone the abandonment of such a rule when the result is to
foreclose federal habeas review of federal claims based on conjecture as to
the "meaning" of an unexplained order.
    The Court's decision in Ylst demonstrates that we are destined to
relive the period where we struggled to develop principles to guide the
interpretation of ambiguous state court orders.  In Ylst, the last state
court to render a judgment on Nunnemaker's federal claims was the
California Supreme Court.  Nunnemaker had filed a petition for habeas
corpus in that court, invoking its original jurisdiction.  Accordingly, the
court was not sitting to review the judgment of another state court, but to
entertain, as an original matter, Nunne maker's collateral challenge to his
conviction.  The court's order denying relief was rendered without
explanation or citation.  Rejecting the methodology employed just today by
the Coleman majority, the Ylst Court does not look to the pleadings filed
in the original action to determine the "meaning" of the unexplained order.
Rather, the Court adopts a broad per se presumption that "where there has
been one reasoned state judgment rejecting a federal claim, later
unexplained orders upholding that judgment or rejecting the same claim rest
upon the same ground."  Ylst, post, at 5.  This presumption does not
purport to distinguish between unexplained judgments that are entered on
review of the reasoned opinion and those that are independent thereof.
    The Ylst Court demonstrates the employment of the presumption by simply
ignoring the judgment of the highest court of California, and by looking
back to an intermediate court judgment rendered 12 years earlier to
conclude that Nunnemaker's federal claims have been procedurally defaulted.
In so concluding, the Court determines that an intervening order by the
California Supreme Court, which, with citations to two state-court
decisions, denied Nunnemaker's earlier petition invoking the court's
original jurisdiction, is not "informative with respect to the question,"
post, at 8, whether a state court has considered the merits of Nunnemaker's
claims since the procedural default was recognized.  Thus, the Court
dismisses two determinations of the California Supreme Court, rendered not
in review of an earlier state-court judgment but as an exercise of its
original jurisdiction, because it finds those determinations not
"informative."  While the Court may comfort itself by labelling this
exercise "looking through," see post, at 6, it cannot be disputed that the
practice represents disrespect for the State's determination of how best to
structure its mechanisms for seeking postconviction relief.
    Moreover, the presumption adopted by the Ylst Court further complicates
the efforts of state courts to understand and accommodate this Court's
federal habeas jurisprudence.  Under Long, a state court need only
recognize that it must clearly express its intent to rely on a state
procedural default in order to preclude federal habeas review in most
cases.  After today, however, a state court that does not intend to rely on
a procedural default but wishes to deny a meritless petition in a summary
order must now remember that its unexplained order will be ignored by the
federal habeas court.  Thus, the state court must review the procedural
history of the petitioner's claim and determine which state-court judgment
a federal habeas court is likely to recognize.  It then must determine
whether that judgment expresses the substance that the court wishes to
convey in its summary order, and react accordingly.  If the previous
reasoned judgment rests on a procedural default, and the subsequent court
wishes to forgive that default, it now must clearly and expressly indicate
that its judgment does not rest on a state procedural default.  I see no
benefit in abandoning a clear rule to create chaos.

III
    Having abandoned the plain-statement rule with respect to a summary
order, the majority must consider Coleman's argument that the untimely
filing of his notice of appeal was the result of attorney error of
sufficient magnitude as to constitute cause for his procedural default.  In
a sleight of logic that would be ironic if not for its tragic consequences,
the majority concludes that a state prisoner pursuing state collateral
relief must bear the risk of his attorney's grave errors -- even if the
result of those errors is that the prisoner will be executed without having
presented his federal claims to a federal court -- because this attribution
of risk represents the appropriate "allocation of costs."  Ante, at 29.
Whether unprofessional attorney conduct in a state postconviction
proceeding should bar federal habeas review of a state prisoner's
conviction and sentence of death is not a question of costs to be allocated
most efficiently.  It is, rather, another circumstance where this Court
must determine whether federal rights should yield to state interests.  In
my view, the obligation of a federal habeas court to correct fundamental
constitutional violations, particularly in capital cases, should not accede
to the State's "discretion to develop and implement programs to aid
prisoners seeking to secure postconviction review."  Pennsylvania v.
Finley, 481 U. S. 551, 559 (1987).
    The majority first contends that this Court's decision in Murray v.
Carrier, 477 U. S. 478 (1986), expressly resolves this issue.  Of course,
that cannot be so, as the procedural default at issue in Murray occurred on
direct review, not collateral attack, and this Court has no authority to
resolve issues not before it.  Moreover, notwithstanding the majority's
protestations to the contrary, the language of Murray strongly suggests
that the Court's resolution of the issue would have been the same
regardless of when the procedural default occurred.  The Court in Murray
explained: "A State's procedural rules serve vital purposes at trial, on
appeal, and on state collateral attack" (emphasis added).  477 U. S., at
490.  Rejecting Carrier's argument that, with respect to the standard for
cause, procedural defaults on appeal should be treated differently from
those that occur during the trial, the Court stated that "the standard for
cause should not vary depending on the timing of a procedural default or on
the strength of an uncertain and difficult assessment of the relative
magnitude of the benefits attributable to the state procedural rules that
attach at each successive stage of the judicial process" (emphasis added).
Id., at 491.
    The rule foreshadowed by this language, which the majority today
evades, most faithfully adheres to a principled view of the role of federal
habeas jurisdiction.  As noted above, federal courts forgo the exercise of
their habeas jurisprudence over claims that are procedurally barred out of
respect for the state interests served by those rules.  Recognition of
state procedural forfeitures discourages petitioners from attempting to
avoid state proceedings, and accommodates the State's interest in finality.
No rule, however, can deter gross incompetence.  To permit a procedural
default caused by attorney error egregious enough to constitute ineffective
assistance of counsel to preclude federal habeas review of a state
prisoner's federal claims in no way serves the State's interest in
preserving the integrity of its rules and proceedings.  The interest in
finality, standing alone, cannot provide a sufficient reason for a federal
habeas court to compromise its protection of constitutional rights.
    The majority's conclusion that Coleman's allegations of ineffective
assistance of counsel, if true, would not excuse a procedural default that
occurred in the state post-conviction proceeding is particularly disturbing
because, at the time of Coleman's appeal, state law precluded defendants
from raising certain claims on direct appeal.  As the majority
acknowledges, under state law as it existed at the time of Coleman's trial
and appeal, Coleman could raise his ineffective assistance of counsel claim
with respect to counsel's conduct during trial and appeal only in state
habeas.  Ante, at 29.  This Court has made clear that the Fourteenth
Amendment obligates a State " `to assure the indigent defendant an adequate
opportunity to present his claims fairly in the context of the State's
appellate process,' " Pennsylvania v. Finley, 481 U. S. 551, 556 (1986),
quoting Ross v. Moffitt, 417 U. S. 600, 616 (1974), and "require[s] that
the state appellate system be free from unreasoned distinctions."  Id., at
612.  While the State may have wide latitude to structure its appellate
process as it deems most effective, it cannot, consistent with the
Fourteenth Amendment, structure it in such a way as to deny indigent
defendants meaningful access.  Accordingly, if a State desires to remove
from the process of direct appellate review a claim or category of claims,
the Fourteenth Amendment binds the State to ensure that the defendant has
effective assistance of counsel for the entirety of the procedure where the
removed claims may be raised.  Similarly, fundamental fairness dictates
that the State, having removed certain claims from the process of direct
review, bear the burden of ineffective assistance of counsel in the
proceeding to which the claim has been removed.
    Ultimately, the Court's determination that ineffective assistance of
counsel cannot constitute cause of a procedural default in a state
postconviction proceeding is patently unfair.  In concluding that it was
not inequitable to apply the cause and prejudice standard to procedural
defaults that occur on appeal, the Murray Court took comfort in the
"additional safeguard against miscarriages of justice in criminal cases":
the right to effective assistance of counsel.  477 U. S., at 496.  The
Court reasoned: "The presence of such a safeguard may properly inform this
Court's judgment in determining `[w]hat standards should govern the
exercise of the habeas court's equitable discretion' with respect to
procedurally defaulted claims."  Ibid., quoting Reed v. Ross, 468 U. S. 1,
9 (1984).  "[F]undamental fairness is the central concern of the writ of
habeas corpus."  Strickland v. Washington 466 U. S. 668, 697 (1984).  It is
the quintessence of inequity that the Court today abandons that safeguard
while continuing to embrace the cause and prejudice standard.
    I dissent.
------------------------------------------------------------------------------
