Manuel Lee Runnels v. Norman B. Hess, Warden, and Jan Eric Cartwright, Attorney General of Oklahoma

That, as intimated but not specifically found in this court's June 15, 1982 additional findings, plaintiff has not made the requisite showing of "cause" or "actual prejudice" upon which habeas corpus relief may be granted underEngle v. IsaacandUnited States v. Frady, supra.Reference is also made toDavis v. United States,411 U.S. 233[93 S.Ct. 1577,36 L.Ed.2d 216] (1973);Francis v.Henderson,425 U.S. 536[96 S.Ct. 1708,36 L.Ed.2d 149] (1976);Wainwright v. Sykes,433 U.S. 72[97 S.Ct. 2497,53 L.Ed.2d 594] (1972), andTyler v.Phelps,643 F.2d 1095(5th Cir. 1981).

The findings set out above demonstrate that this court erred in entering Judgment granting the petition for writ of habeas corpus.

Based upon this court's review of the opinions of the Supreme Court of the United States inIsaacandFrady, supra,issued subsequent to this court's February 2 Opinion and Order, and ofTyler II,it appears that under current law, petitioner herein may not have satisfied the "cause" prong ofSykes.

This possibility is suggested by the emphasis placed, inIsaac,upon principles of comity and finality of state court criminal judgments; upon the strong indication inIsaacandFradythat the Supreme Court of the United States would not accept as adequate a finding of "cause" based wholly upon circumstantial and speculative factors, as is the case here; upon the clear distinction drawn inFradybetween standards of proof applicable upon direct appeal and upon subsequent collateral attack; upon the vacation by the Court of Appeals for the Fifth Circuit of its opinion inTyler I,portions of which had been heavily relied upon by this court in reaching its decision; and upon the holding inTyler II,which appears to require a clear and unequivocal showing of "cause".

The statements of the prosecutor herein, in his closing argument, violated petitioner's constitutional rights. The prosecutor's indirect comments on petitioner's failure to testify in his own behalf were clearly improper, as has been recognized by the Court of Criminal Appeals of the State of Oklahoma and by the Court of Appeals for the Tenth Circuit, in remanding this case to the undersigned for an evidentiary hearing on the "cause" issue.Runnels v. Hess, supra.It is equally true, however, that the constitutional rights of Sykes, Isaac and Tyler were all admittedly violated and that had an objection been contemporaneously made at trial in any of their cases a new trial undoubtedly would have been granted. The teaching ofIsaacandFrady,as applied to petitioner's case, would appear to be that in a federal habeas corpus action, principles of comity and finality, and the recognition of the appropriate distinction between the burden on a criminal defendant upon direct appeal as opposed to a subsequent collateral attack, require a clear showing by petitioner that his is a fundamentally unjust incarceration as a result of a fundamental miscarriage of justice in order to satisfy the "cause" element ofSykes.The showing made herein by petitioner, viewed in the light of those recent decisions, may not meet those criteria. This may be true even though the unavailability of testimony on the "cause" issue was due to the intervening death of petitioner's trial counsel.

Issuance of a [federal] habeas writ, finally, exacts an extra charge by undercutting the State's ability to enforce its procedural rules. These considerations supported ourSykesruling that, when a procedural default bars state litigation of a constitutional claim, a state prisoner may not obtain federal habeas relief absent a showing of cause and actual prejudice.

Respondents urge that we should limitSykesto cases in which the constitutional error did not affect the truthfinding function of the trial ....

We do not believe, however, that the principles ofSykeslend themselves to this limitation. The costs outlined above do not depend upon the type of claim raised by the prisoner. While the nature of a constitutional claim may affect the calculation of cause and actual prejudice, it does not alter the need to make that threshold showing. We reaffirm, therefore, that any prisoner bringing a constitutionalPage 599claim to the federal courthouse after a state procedural default must demonstrate cause and actual prejudice before obtaining relief.

We have long recognized, however, that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim. Where the basis of a constitutional claim is available, and other defense counsel have perceived and litigated that claim, the demands of comity and finality counsel against labeling alleged unawareness of the objection as cause for a procedural default.

According to Frady, the trial court's erroneous instructions [to which no contemporaneous objection was lodged] relieved the Government of the burden of proving malice, an element of the crime of murder, beyond a reasonable doubt, so that, as Frady would have it, his conviction must be overturned.

So stated, Frady's claim of actual prejudice has validity only if an error in the instructions concerning an element of the crime charged amounts to prejudiceper se,regardless of the particular circumstances of the individual case. Our precedents, however, hold otherwise. Contrary to Frady's suggestion, he must shoulder the burden of showing, not merely that the errors at his trial created apossibilityof prejudice, but that they worked to hisactualand substantial disadvantage, infecting his entire trial with error of constitutional dimensions.

Respondents, finally, urge that we should replace or supplement the cause-and-prejudice standard with a plain-error inquiry. We rejected this argument when pressed by a federal prisoner, seeUnited States v.Frady, post[456 U.S.] p. 152 [102 S.Ct. p. 1584], and find it no more compelling here. The federal courts apply a plain-error rule for direct review of federal convictions. Fed. Rule Crim.Proc.52(b). Federal habeas challenges to state convictions, however, entail greater finality problems and special comity concerns. We remain convinced that the burden of justifying federal habeas relief for state prisoners is "greater than the showing required to establish plain error on direct appeal."Hendersonv. Kibbe,431 U.S. 145,154[97 S.Ct. 1730,1736,52 L.Ed.2d 203] (1977);United States v. Frady, post,at 166 [102 S.Ct. at 1593].

Contrary to respondents' assertion, moreover, a plain-error standard is unnecessary to correct miscarriages of justice. The terms "cause" and "actual prejudice" are not rigid concepts; they take their meaning from the principles of comity and finality discussed above. In appropriate cases those principles must yield to the imperative of a fundamentally unjust incarceration. Since we arePage 600confident that victims of a fundamental miscarriage of justice will meet the cause-and-prejudice standard, seeWainwright v. Sykes,433 U.S. at 91[97 S.Ct. at 2508];id.,at 94-97 [97 S.Ct. at 2510-11] (STEVENS, J., concurring), we decline to adopt the more vague inquiry suggested by the words "plain error."