holding that a court may excuse exhaustion if petitioner demonstrates: (1) “cause for the default and actual prejudice as a result of the alleged violation of federal law,” or (2) “that failure to consider the claims will result in a fundamental miscarriage of justice”
How later courts described this case
- holding that a court may excuse exhaustion if petitioner demonstrates: (1) “cause for the default and actual prejudice as a result of the alleged violation of federal law,” or (2) “that failure to consider the claims will result in a fundamental miscarriage of justice”
- holding that ex parte determination of probable cause is insufficient under due process clause for nonpossessory lien such as attachment
- stating that a postsequestration hearing provides sufficient process for filing a notice of lis pen-dens, as the filing party already claims an interest in the property that he seeks to enforce through a concurrent lawsuit
- noting that the plaintiff “had no existing interest in Doehr’s real estate when he sought the attachment”
Written by the judges who cited it.
Distinguished
Distinguished by Diviney v. Smith, No. Cv 91 0287011s (Feb. 26, 1992), 1992 Conn. Super. Ct. 1197 (1992)
(2d Cir. 1990), aff'd sub. nom., Connecticut v. Doehr, U.S. ___,111 S.Ct. 2105, 115 L.Ed.2d 1 (1991), is inapposite, since in Pinsky there was overt official participation in the attachment.
The opinion
Justice Scalia,
concurring in part and concurring in the judgment.
Since the manner of attachment here was not a recognized procedure at common law, cf. Pacific Mut. Life Ins. Co. v. *31 Haslip, 499 U. S. 1, 24 (1991) (Scalia, J., concurring in judgment), I agree that its validity under the Due Process Clause should be determined by applying the test we set forth in Mathews v. Eldridge, 424 U. S. 319 (1976); and I agree that it fails that test. I join Parts I and III of the Court’s opinion, and concur in the judgment of the Court.