Volume 112

Too Late Not to Die: An Empirical Review of Procedural Default in Capital Habeas Cases, 2017–2021

by Jonathan Dame

What happens when a criminal defendant fails to raise a federal claim in the manner required by state procedure? In 1963, the Supreme Court made a holding on that question that has endured for more than sixty years. In such situations, the Court held, the defendant has forfeited a state remedy but has not necessarily waived a federal right. Footnote #1 content: See Fay v. Noia, 372 U.S. 391, 427–28 (1963).  For that reason, a defendant who has procedurally defaulted a meritorious federal claim in state court is still “in custody in violation of the Constitution or laws or treaties of the United States”—and therefore is still among the class of people for whom Congress has chosen to provide a federal remedy in the form of a writ of habeas corpus. Footnote #2 content: 28 U.S.C. § 2254(a).

Much about the law of federal habeas corpus has changed since the Court decided that case, Fay v. Noia. But neither the Court nor Congress has ever overruled Fay’s holding that procedural default does not deprive a federal court of jurisdiction under the habeas statute. Footnote #3 content: See, e.g., Trest v. Cain, 522 U.S. 87, 89 (1997); see also BRIAN R. MEANS, FEDERAL HABEAS MANUAL § 9B:3, Westlaw (database updated May 2023) (explaining that Congress “did not change the application of . . . procedural default principles” when it last significantly revised the federal habeas statute in 1996). See generally Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 104-132, tit. I, 110 Stat. 1214, 1217–26 (codified as amended in scattered sections of 28 U.S.C.).  Nevertheless, beginning in the late 1970s, the Court decided, based on its own policy judgment, that procedural default should be strictly enforced against criminal defendants in all but the rarest of federal habeas cases—an approach Congress has never codified. Footnote #4 content: Although it is tempting to view Congress’s inaction as an endorsement of the current default rules, the Court has repeatedly adhered to a presumption against “draw[ing] inferences from Congress’ failure to act”—a presumption it has applied to the federal habeas statute itself. See Brecht v. Abrahamson, 507 U.S. 619, 632 (1993) (quoting Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 306 (1988)); cf. Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 186 (1994) (“It is ‘impossible to assert with any degree of assurance that congressional failure to act represents’ affirmative congressional approval of the [courts’] statutory interpretation.” (alteration in original) (quoting Patterson v. McLean Credit Union, 491 U.S. 164, 175 n.1 (1989))).  Decades of experience and the findings of this Note demonstrate that, at least in the death penalty context, a new approach is needed.

This Note presents the results of an empirical review of the federal habeas cases of every person executed by a state in the five years between 2017 and 2021. During that time, at least twenty-six people were executed after a federal court declined to consider the merits of at least one claim that had been procedurally defaulted—30.6% of all people executed in those years. At the same time, this Note encouragingly finds that courts routinely consider the merits of defaulted claims notwithstanding unexcused default. In 93.2% of cases involving defaulted claims, the court made clear that at least one such claim was (in its view) meritless. And in a substantial majority of cases (62.2%), the court considered, in one way or another, the merits of all defaulted claims.

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Cases, 2017–2021.