Robert C. Cook v. Dale Foltz

MERRITT, Circuit Judge,

concurring.

Although the majority correctly holds that the “cause and prejudice” test enunciated in Wainwright v. Sykes, 433 U.S. 72, 87 , 97 S.Ct. 2497, 2506 , 53 L.Ed.2d 594 (1977), controls the disposition of petitioner’s Sandstrom claim, the Sykes analysis presented in the majority opinion is flawed by its misapprehension of the substantive basis of petitioner’s argument. The majority states at page seven that “nothing in the record or in the briefs purports to advance a cause for Cook’s failure to object.” Contrary to this assertion, I believe that petitioner has fairly raised ineffective assist *1114 anee of counsel as cause. See Appellant’s Brief at 22. A claim of cause based on ineffective assistance of counsel presents a special case which was recently considered by the Supreme Court in Murray v. Carrier, —U.S.-, 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986). Although the result is the same in this case, I write separately in order to analyze Mr. Cook’s arguments under the principles announced in the Carrier decision.

Wainwright v. Sykes established that a habeas petitioner must show “cause and prejudice” in order to obtain federal review of a claim that has been procedurally defaulted in state court. 433 U.S. at 87 , 97 S.Ct. at 2506-07 . The Sykes opinion, however, left the precise definition of these terms for the future. Id. Recently, the Supreme Court has fulfilled its promise by deciding a number of cases that define the cause prong of the Sykes test. See Reed v. Ross, 468 U.S. 1 , 104 S.Ct. 2901 , 82 L.Ed.2d 1 (1984) (unavailability of factual or legal basis of claim may constitute cause); Engle v. Isaac, 456 U.S. 107 , 102 S.Ct. 1558 , 71 L.Ed.2d 783 (1982) (failure to recognize every possible claim not sufficient cause); Murray v. Carrier, —U.S.-, 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986) (ineffective assistance may constitute cause).

The most recent of these cases directly addresses the issue presented in this appeal: under what circumstances does ineffective assistance of counsel constitute cause? In Carrier , the Supreme Court held that the cause element of the Sykes test is satisfied when counsel’s performance is deficient under the standard announced in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Carrier, 106 S.Ct. at 2645-46 . This test considers the entirety of the representation and does not focus on the failure to make a specific objection. Under Carrier , the defendant bears the risk that his attorney will fail to recognize the factual or legal basis for a claim, or will fail to raise the claim despite recognizing it. 106 S.Ct. at 2645-46 . “[T]he 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.” Id. at 2645 (quoting Engle v. Isaac, 456 U.S. at 134 , 102 S.Ct. at 1575 ).

Mr. Cook’s claim of ineffective assistance is offered both as cause for his procedural default in state court and as a substantive ground for habeas relief. The majority properly found petitioner’s substantive claim of ineffective assistance to be merit-less under the Strickland standard. In my view, however, the majority should have noted that petitioner’s failure to prove constitutionally deficient counsel also negated a finding of cause, thereby foreclosing federal review of the procedurally-defaulted Sandstrom error. 1

Under Sykes , it is unnecessary to reach a habeas petitioner’s claim on prejudice once it is established that cause has not been shown. Even actual prejudice is insufficient without a showing of cause since the Sykes test is clearly conjunctive. Carrier, 106 S.Ct. at 2648-50 . The only exception is the extraordinary case where the court is convinced that an innocent person has been convicted. Id. at 2650 . Since this is not the case with Mr. Cook’s petition, I see no need to address his argument on prejudice as the majority has done.

. To whatever extent petitioner depends on the "novelty" of the Sandstrom claim to show cause, I agree with the majority that his argument is precluded by Reed v. Ross, 468 U.S. 1 , 104 S.Ct. 2901 , 82 L.Ed.2d 1 (1984), and McBee v. Grant, 763 F.2d 811 (6th Cir.1985). Novelty cannot be established as cause for procedurally defaulting a Sandstrom claim where the objectionable instruction occurred after In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970). See Reed, 468 U.S. at 19-20 , 104 S.Ct. at 2912-13 ; McBee, 763 F.2d at 817 .