Opposition Brief — Pozo v. McCaughtry

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No. 02-204 SEP L1 2002

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| indecent

In The

Supreme Court of the United States

s

RODOSVALDO POZO,

Petitioner,

v.

GARY McCAUGHTRY, RANDALL GERRITSON, and

DAVID HAUTAMAKI,

Respondents.

4

Petition for Writ of Certiorari to the United States Court of

Appeals for the Seventh Circuit

+

BRIEF IN OPPOSITION TO PETITION

4

JAMES E. DOYLE

Attorney General

KARLA Z. KECKHAVER*

Assistant Attorney General

Attorneys for Respondents

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 264-6365

* Counsel of Record

QUESTION PRESENTED

Whether the Seventh Circuit Court of Appeal's

decision, which holds that for a prisoner to exhaust

administrative remedies as required by 42 U.S.C. § 1997e(a),

the Prisoner Litigation Reform Act ("PLRA") exhaustion

requirement, he must complete the administrative process by

following the rules the state has established for that process,

(1) is consistent with this Court's decisions regarding the

purpose and broad application of the PLRA exhaustion

requirement, (2) is consistent with other court of appeals'

decisions addressing the effect of state procedural rules on

the PLRA exhaustion requirement, and (3) is analogous to

this Court's and other court of appeals’ decisions regarding

procedural default in the context of the habeas corpus

exhaustion requirement.

li

TABLE OF CONTENTS

Page

QUESTION PRESENTED ....<.<:.cocssscesssittileinneiee i

STATEMENT OF THE CASE .........::unsistousiucannse l

REASONS FOR DENYING THE WRIT ...........cccccccceseeeseeees 2

I. THE SEVENTH CIRCUIT'S

DECISION IS CONSISTENT WITH

THIS COURT'S DECISIONS

REGARDING THE PURPOSE AND

BROAD APPLICATION OF THE

PLRA EXHAUSTION

REQUIREMENT. ......:sserssssssieiccianumanseunanadl 2

I. THE SEVENTH CIRCUIT'S

DECISION IS CONSISTENT WITH

OTHER COURT OF APPEALS'

DECISIONS ADDRESSING THE

EFFECT OF STATE PROCEDURAL

RULES ~— ON THE PLRA

EXHAUSTION REQUIREMENT................. 6

iil

iL. Te SEVENTH CIRCUIT'S

DECISION IS ANALOGOUS TO

THIS COURT'S AND OTHER

COURT OF APPEALS' DECISIONS

REGARDING PROCEDURAL

DEFAULT IN THE CONTEXT OF

THE HABEAS CORPUS

EXHAUSTION REQUIREMENT............... 10

A. Procedural default is a useful

analogy to the issue presented

in this case, but the rules of

procedural default are

unnecessary or inapplicable in

the context of the PLRA

exhaustion requirement. ..............0++- 10

B. Even if the rules of procedural

default apply in the context of

the PLRA exhaustion

requirement, Pozo

procedurally defaulted his

claim because the

administrative | reviewer

dismissed his appeal based

upon an independent and

adequate state procedural rule. ......... 15

iv

a Pozo has waived his argument

that his default is excused if

cause and prejudice are

demonstrated because he failed

to raise this argument on

appeal to the Seventh Circuit............ 21

te a ie nad OE a IRE EN Te PR NEE 22

Vv

CASES CITED

Barksdale v. Lane,

957 F.2d 379 (7th Cir.), cert. denied,

Sts Me ITED: eiipsiivsstcinihacinetiistieseasnhiotanpatdantcitigsanacion 16

Blair-Bey v. Quick,

151 F358 1056 CD.C. Cag. TSB) cesccovcvrsssseveevesee 14, 15

Booth v. Churner,

as: TOPE CINEMA iissssbicadivenisentnaiaumaiaigeinils 2, 3, 4,5

Buelow v. Dickey,

ST Fee FI Gale NOD vnesnitctnceneepestccnbesescissnens 22

Coleman v. Thompson,

Fe Sic eee ED cvcneniscicedioniuiiciecmininncsittaninn 13, 16

Davis v. Fechtel,

SE ree Se Ge Ga TE vente rnc samsttiesnvedsnniccrennnis 14

Ford v. Georgia,

a FEE Te victediladiesantntiniiaiciaelipaeaisianiniactoniies 16

Harper v. Jenkin,

FP P.3e TSU CL Ti Cap. GGG) a cnccnnerecasersccecessscssese 6, 7

Harris v. Reed,

rs ee 1 ND cksstntonnnineccintaicnaaermienpeainiaalia 16

James v. Kentucky,

TE, BOS TATED vn cesrececsssivsnvenpeacnsstanseeanenitonteiyecses 16

Johnson v. Mississippi,

4B6 US. STB (UGBB) uns .ivcessssscnrcciacesorerssnscnsscesevorenes 16

vi

Lilly v. Gilmore,

988 F.2d 783 (7th Cir.), cert. denied,

FOP UB. Be CROW) citiinicanacieebenie eo 16

Marsh v. Jones,

IS Bae Far Come Cy TUNE 6,9

McIntosh v. United States Parole Board,

BUS PSG GOP CHG Cie; BOF) coccccccecincecessesecesisece 14

Morales v. Calderon,

85 F.3d 1387 (9th Cir. Re iticoden 18, 19, 20, 21

Murray v. Carrier, )

OFT Edi PW 1 ID cickennsncntssoiaesecniimenea 12, 14

NAACP v. Alabama ex rel. Flowers,

SET oats Me COU piinlitcindiccknseniena oe ce 16

NAACP v. Alabama ex rel. Patterson,

SIT Wa WN CRIED \icsciesssconisecsnecssdandererenmesaccecees. 16

O'Sullivan v. Boerckel,

SOO US. SOB CIGD) cscneccccecsorneccecosseress.. 10, 11, 12, 13

Porter v. Nussle,

534 U.S. 516,

Be es HO CAM vaisstsketcnbniinissdneccces dees 2, 3, 4, 5, 13

Smith v. Zachary,

255 F.3d 446 (7th Cir. 2001)........ccccccccccccccssscsceeseeess 22

Thomas v. McCaughtry,

201 F.3d 995 (7th Cir. 2000)........cccccccccesesscsseeees 16, 18

Walker v. O'Brien,

216 F260 GIS CPCB. MI iii ee 14

Vii

Wolff v. Moore,

199 F.3d 324 (6th Cir 1999) .........ceeeeeeeeeeeeeeseeeeeeees 22

Wright v. Morris,

111 F.3d 414 (6th Cir. 1997) .........cceeeeeseeseees 6, 7,8

Youakim v. Miller,

425 U.S. 231 (1976) .......scccesrsscsssccccscverscesscesesssenscoees 21

FEDERAL REGULATIONS AND STATUTES CITED

28 U.S.C. § 2254 ......cccscsreccsscssscerscssecenssssnscssnseessvsnsceenees 13, 15

28 U.S.C. § 2254(b)(1)(A) ......cscccseseeesseereeereeeeresennnsnnsensnneens 10

28 U.S.C. § 2254(C)......ccsccessssssesrserseersesssenessernssscnsensenseneees 10

42 U.S.C. § 1983 .......ccsscccscssssesscsssersenrsenscsnecsensessscnsensenssnnsees 3

42 U.S.C. § 1997e(a) .....eeceesereersenerenesensssnsseenneennenees 3,5, 3

42 U.S.C. § 1997e(a)(1994ed.)......ecceeeesreeeerseseresserserennsenneens 3

OTHER AUTHORITIES CITED

Wis. Admin. Code § DOC 310.09(3)..........sssseereererensees 7,22

Wis. Admin. Code § DOC 310.09(5) ........cseccscccesecseseessesseee 13

Wis. Admin. Code § DOC 310.13(1)............. 5, 16, 17, 18, 21

Wis. Admin. Code § DOC 310.13(3)............. 7, 13, 17, 18, 22

Prison Litigation Reform Act of 1995,

Pub. L. No. 104-134, 110 Stat. 1321 ...........sssseseereeees 3

Viii

Supreme Court Policies Regarding Cases Arising from

Judgment of Death, in California Rules of

Court — State 745-46 (1990))(internal citations

and footnotes CO siccininindettemaneaet es Sala, 20

No. 02-204

In The

Supreme Court of the United States

.

RODOSVALDO POZO,

Petitioner,

Vv.

GARY McCAUGHTRY, RANDALL GERRITSON, and

DAVID HAUTAMAKI,

Respondents.

+

Petition for Writ of Certiorari to the United States Court of

Appeals for the Seventh Circuit

¢

~s BRIEF IN OPPOSITION TO PETITION

4 See

STATEMENT OF THE CASE

_ The Respondents are satisfied with sections A through

E of the Petitioner's Statement of the Case; however, the

Respondents do not agree with the introductory paragraphs of

the Petitioner's Statement of the Case because such paragraphs

essentially amount to a summary of the argument.

a

2

REASONS FOR DENYING THE WRIT

Summary

This Court should deny the petition for writ of | |

certiorari because the Seventh Circuit properly concluded

that for a prisoner to exhaust administrative remedies as

required by the PLRA, he must complete the process by

following all the rules the state has established for that

process. Without such a tule, an inmate could evade the

exhaustion requirement by filing no administrative grievance

or by filing an untimely or otherwise improper grievance and

later claiming that no remedy is available; therefore, the rule

is necessary to protect the integrity of administrative

exhaustion and to protect the important interests served by

procedural rules.

\

Argument

I. THE SEVENTH CIRCUIT'S

DECISION IS CONSISTENT

WITH THIS COURT'S

DECISIONS REGARDING THE

PURPOSE AND BROAD

APPLICATION OF THE PLRA

EXHAUSTION REQUIREMENT.

A rule requiring prisoners to properly exhaust their

administrative remedies, without violating the established

procedures for administrative exhaustion, is necessary to

protect the purpose and broad application of the PLRA

exhaustion requirement as discussed by this Court in Porter

v. Nussle, 534 U.S. 516, 122 S.Ct. 983 (2002) and Booth v.

Churner, 532 U.S. 731 (2001).

3

The Prison Litigation Reform Act of 1995, Pub. L. No.

104-134, 110 Stat. 1321 ("PLRA"), requires inmates to exhaust

their available administrative remedies before bringing a 42

U.S.C. § 1983 action with respect to prison conditions. The

relevant section of the PLRA, 42 U.S.C. § 1997e(a), reads as

follows:

Applicability of administrative remedies.

No action shall be brought with respect to

prison conditions under section 1983 of this

title, or any other Federal law, by a prisoner

confined in any jail, prison or other correctional

facility until such administrative remedies as

are available are exhausted.

42 U.S.C. § 1997e(a).

Before § 1997e(a) was amended by the PLRA, a court

had discretion, but was not obligated, to require an inmate to

exhaust available administrative remedies, but only if those

remedies were "plain, speedy, and effective." 42 U.S.C. §

1997e(a) (1994 ed.). The PLRA significantly broadened the

previous exhaustion rule by making exhaustion mandatory and

by eliminating the condition that the remedy be "plain, speedy,

and effective." See Porter, 122 S.Ct. at 990-91; Booth, 532

USS. at 739.

In recent decisions, this Court has interpreted §

1997e(a) broadly. In Booth, this Court held that the PLRA

requires administrative exhaustion, even when the prison

grievance system does not offer the relief requested by the

prisoner. See Booth, 532 U.S. at 741.

Congress's imposition of an obviously broader

exhaustion requirement makes it highly

implausible that it meant to give prisoners a

4

strong inducement to skip the administrative

grievance process simply by limiting prayers

for relief to money damages not offered

through the administrative grievance

mechanisms.

Id. at 740-41.

In Porter, this Court held that "the PLRA's

exhaustion requirement applies to all inmate suits about

prison life, whether they involve general circumstances or

particular episodes, and whether they allege excessive force

or some other wrong." Porter, 122 S.Ct. at 992. As in Booth,

the Court reasoned that when Congress imposed a broader

PLRA exhaustion requirement, it is unlikely that it meant to

give prisoners an opportunity to evade the exhaustion

requirement by altering their pleadings.

Nussle urges that his case could be placed in

the isolated episode category, but he might

equally urge that his complaint describes a

pattern or practice of harassment climaxing in

the alleged beating. It seems unlikely that

Congress, when it included in the PLRA a

firm exhaustion requirement, meant to leave

the need to exhaust to the pleader's option.

Cf. Preiser [v. Rodriguez, 411 U.S. 475, 489-

90 (1973)] (‘It would wholly frustrate explicit

congressional intent to hold that [prisoners]

could evade this [exhaustion] requirement by

the simple expedient of putting a different

label on their pleadings...

Id. at 991.

5

This case presents a problem similar to those

addressed in Booth and Porter. Pozo did not follow the rules

established by the state for administrative exhaustion when

he failed to timely present his claims on administrative

appeal. Administrative review by the Corrections Complaint

Examiner ("CCE") was not “available” because of Pozo's

own negligence in failing to timely file his appeals. Pozo

should not be permitted to wait until the time limit for appeal

expires and then claim that he has no available

administrative remedies. Administrative review was

available to him within 10 days of the Warden's decision.

See Wis. Admin. Code § DOC 310.13(1). Pozo chose to

ignore that time limit, and he should not now benefit from

failing to give prison officials a fair opportunity for timely

review. If prisoners could exhaust their administrative

remedies by flouting the rules established for the process, as

Pozo did, they could evade the exhaustion requirement by

filing no administrative grievance or by filing an untimely or

otherwise improper grievance and later claiming that no

remedy is available. Surely, this is not the result that

Congress intended when it imposed a broader exhaustion

requirement.

In addition, the purpose of administrative exhaustion

requires that inmates properly exhaust their administrative

remedies, following all. the state-established rules for

exhaustion. Congress enacted § 1997e(a) to reduce the

quantity and improve the quality of prisoner lawsuits. See

Porter, 122 S.Ct. at 988. The exhaustion requirement gives

prison officials the opportunity. to address a situation

internally, restricts frivolous claims, develops the factual

record, and reduces the scope of litigation. See id.

Administrative review provides for a timely investigation by

those in the best position to respond to the allegations. It

may narrow the dispute or resolve the matter entirely. These

goals can only be met when prison officials are given a fair

6

Opportunity to address the merits of the claim. Time limits

for administrative review, as well as other procedural rules,

have a purpose: to provide review soon after the incident in

question when facts are fresh in the minds of those involved

and when evidence is likely to be available. Prison officials

are entitled to rely on administrative time limits and are not

required to waive time limits to facilitate exhaustion. It

would be contrary to the purpose of administrative time

limits and of exhaustion generally if the rule were otherwise.

Il. THE SEVENTH CIRCUIT'S

DECISION IS CONSISTENT

WITH OTHER COURT OF

APPEALS' DECISIONS

ADDRESSING THE EFFECT OF

STATE PROCEDURAL RULES

ON THE PLRA EXHAUSTION

REQUIREMENT.

Several other circuits have addressed the situation at

issue in this case, and all of those circuits reached the same

conclusion as the Seventh Circuit. See Harper v. Jenkin, 179

F.3d 1311 (11th Cir. 1999); Wright v. Morris, 111 F.3d 414,

417 n. 3 (6th Cir. 1997); Marsh v. Jones, 53 F.3d 707, 710

(5th Cir. 1995).

In Harper, the Eleventh Circuit addressed a situation

similar to the case at bar. The court held that an inmate did

not exhaust his administrative remedies as required by the

PLRA because he filed an untimely grievance and did not

seek leave to file an out-of-time grievance with the grievance

coordinator, who could waive the time limit for "good

cause." Harper, 179 F.3d at 1312. The court reasoned as

follows:

If we were to accept the appellant's position-

that the filing of an untimely grievance

exhausts an inmate's administrative remedies-

inmates such as appellant, could ignore the

PLRA's exhaustion requirement and still gain

access to federal court merely by filing an

untimely grievance.

Id.

The Seventh Circuit's holding in this case is

consistent with the Eleventh Circuit's holding in Harper. In

both cases, the courts concluded that the inmate failed to

exhaust his administrative remedies because he did not

follow the rules established by the state for administrative

review. Moreover, in both cases, the courts concluded that

the inmate defaulted his claim, even though the

administrative reviewer had discretion to waive the time

limit. See Wis. Admin. Code § DOC 310.13(3) (CCE may

accept a late appeal "if the elapsed time has not made it

difficult or impossible to investigate the complaint."); see

also § DOC 310.09(3) (“the institution complaint examiner

may accept a late complaint for good cause”). Neither court

required the administrative reviewer to state why he or she

was not waiving the time limit rule.

While other circuits have not directly addressed the

effect of state procedural rules on the PLRA exhaustion

‘requirement, other circuits have addressed the issue in dicta.

In Wright, the Sixth Circuit concluded that the PLRA

could not be applied retroactively, but in a footnote, the court

addressed facts similar to this case.

8

Plaintiff Corley filed an administrative

complaint but did not appeal the denial of that

complaint to the highest possible

administrative level. He argues that because

the time for his final administrative appeal is

long past, there is no _ longer any

administrative process available to him and he

has therefore met the — exhaustion

requirement.... In light of our holding in this

case, we need not address this argument. It is

clear, however, that in the usual case in the

future, where the alleged violations occurred

after the PLRA's enactment, and inmates have

both notice that exhaustion is required and a

reasonable opportunity to file complaints, it

would be contrary to Congress's intent in

enacting the PLRA to allow inmates to bypass

the exhaustion requirement by declining to

file administrative complaints and then

claiming that administrative remedies are

time-barred and thus not then available.

Wright, 111 F.3d at 417 n. 3.

Similarly, even under the old exhaustion rule, which

required "plain, speedy, and effective" administrative

remedies, the Fifth Circuit concluded as follows:

The district court dismissed Marsh's case

under section 1997e. Because the prison had

already rejected Marsh's administrative

grievance as untimely, her administrative

remedies were foreclosed, and a continuance

would have served no purpose. When a

section 1997e continuance would serve no

purpose, a district court still has the power to

9

dismiss a prisoner's suit under section 1997e

for failure to exhaust administrative remedies.

The reasoning of Rocky [v. Vittorie, 813 F.2d

734 (Sth Cir. 1987)] applies in this context.

Without the prospect of a dismissal with

prejudice, a prisoner could evade the

exhaustion requirement by filing no

administrative grievance or by intentionally

filing an untimely one, thereby foreclosing

administrative remedies and gaining access to

a federal forum without exhausting

administrative remedies. Rocky, 813 F.2d at

736. Thus, we-hold that a district court has

the power to dismiss a prisoner's section 1983

suit under section 1997e even when

administrative relief is time-barred or

otherwise precluded.

Marsh, 53 F.3d at 710.

Thus, the rule of exhaustion implemented by the

Seventh Circuit has been adopted, or at least contemplated,

by other circuits.

10

Il, THE SEVENTH CIRCUIT'S

DECISION IS ANALOGOUS TO

THIS COURT'S AND OTHER

COURT OF APPEALS'

DECISIONS REGARDING

PROCEDURAL DEFAULT IN

THE CONTEXT OF THE

HABEAS CORPUS EXHAUSTION

REQUIREMENT.

A. Procedural default is a useful

analogy to the _ issue

presented in this case, but

the rules of procedural

default are unnecessary or

inapplicable in the context of

the PLRA exhaustion

requirement.

The Seventh Circuit's decision is analogous to the

doctrine of procedural default as discussed in O'Sullivan v.

Boerckel, 526 U.S. 838 (1999), but the Seventh Circuit could

have reached its decision without addressing procedural

default; therefore, any conflict with the rules of procedural

default is not a valid basis for review of this case.

Federal habeas corpus, like the PLRA, has an

exhaustion requirement. A federal habeas applicant must

have "exhausted the remedies available in the courts of the

State." 28 U.S.C. § 2254(b)(1)(A). "An applicant shall not

be deemed to have exhausted the remedies available in the

courts of the State ... if he has the right under the law of the

State to raise, by any available procedure, the question

presented." 28 U.S.C. § 2254(c). State prisoners must give

the state courts a "fair opportunity to act on their claims"

i]

before filing a federal habeas action. O'Sullivan, 526 US. at

844. Because the habeas exhaustion dectrine is designed to

give the state courts a full and fair opportunity to resolve

federal constitutional claims before those claims are

presented to the federal courts, state prisoners must give the

state courts one full opportunity ta resolve any constitutional

issues by invoking one complete round of the state's

established appellate review process. See id. at 845.

The related doctrine of procedural default protects the

integrity of the exhaustion rule. See id. at 848.

In order to protect the integrity of our

exhaustion rule, we have also crafted a

separate waiver rule, or--as it is now

commonly known--the procedural default

doctrine. The purpose of this doctrine is to

ensure that state prisoners not only become

ineligible for state relief before raising their

claims in federal court, but also that they give

state courts a sufficient opportunity to decide

those claims before doing so. If we allowed

state prisoners to obtain federal review simply

by letting the time run on adequate and

accessible state remedies and then rushing

into the federal system, the comity interests

that animate the exhaustion rule could easily

be thwarted. We therefore ask in federal

habeas cases not only whether an applicant.

has exhausted his state remedies; we also ask

how he has done so. This second inquiry

forms the basis for our procedural default

doctrine: A habeas petitioner who has

concededly exhausted his state remedies must

also have properly done so by giving the State

a fair ‘opportunity to pass upon [his claims].’

12

When a prisoner has deprived the state courts

of such an opportunity, he has procedurally

defaulted his claims and is ineligible for

federal habeas relief save a showing of ‘cause

and prejudice,’ or 'a fundamental miscarriage

of justice."

Id. at 853-54 (Stevens, J., dissenting) (internal citations

omitted).!

The doctrine of procedural default also protects the

important interests-served by procedural rules. In Murray v.

Carrier, 477 U.S. 478 (1986), this Court 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.'... Failure to raise a

claim on appeal reduces the finality of

appellate proceedings, deprives the appellate

court of an opportunity to review the trial

error, and ‘undercut[s] the State's ability to

enforce its. procedural rules.’

' The majority in O'Sullivan v. Boerckel, 526 U.S. 838 (1999), agreed

with Justice Stevens’ general description of the law of exhaustion and

procedural default. See id. at 848. The majority only disagreed with the

dissent's conclusion that a prisoner's failure to present his claims in a

petition for discretionary review to a state court does not result in a

procedural default of those claims. See id. at 848-49.

13

Id. at 490-91 (internal citations omitted); see also Coleman v.

Thompson, 501 U.S. 722, 748-49 (1991).

The purpose of exhaustion under 28 U.S.C. § 2254,

the exhaustion requirement for federal habeas actions, is to

allow state courts the first opportunity to review the claim

and provide any necessary relief. See O'Sullivan, 526 U.S. at

844. Similarly, one of the purposes of exhaustion under 42

U.S.C. § 1997e(a), the PLRA exhaustion requirement, is to

give- prison officials the opportunity to address a situation

internally. See Porter, 122 S.Ct. at 988. Both exhaustion

doctrines require the federal courts to give the state tribunal a

"fair opportunity to act on their claims" before filing a

federal action. See O'Sullivan, 526 U.S. at 844. Because the

doctrine of procedural default is designed to protect this "fair

opportunity," see id. at 853-54 (Stevens, J., dissenting), it is

equally applicable to the PLRA exhaustion requirement.

In addition, a procedural default rule is necessary to

protect the important interest served by procedural rules.

The administrative reviewers are entitled to rely on their

procedural rules. Once the CCE has determined that he will

not accept an untimely appeal because the elapsed time has

made it difficult or impossible to investigate the complaint,

see Wis. Admin. Code § DOC 310.13(3), the court must

respect that determination. Other procedural rules, such as

the ICE's decision not to accept an untimely complaint

because the inmate failed to show good cause for the delay,

see Wis. Admin. Code § DOC 310.09(5), are deserving of the

same respect. Therefore, a rule analogous to procedural

default is necessary to protect the integrity of the PLRA

exhaustion requirement because without such a rule, an

inmate could evade the exhaustion requirement by filing no

administrative grievance or by filing an untimely or

otherwise improper grievance.

14

The Seventh Circuit recognized that procedural

default provides a useful analogy to the issue presented in

this case, but it could have reached its decision without

addressing procedural default. (See Sections I and II of this

Brief). Therefore, the Seventh Circuit did not address all the

rules for procedural default in reaching its decision, and any

conflict with those rules is not a valid basis for review of this

case.

Pozo argues that Seventh Circuit “has made the

administrative exhaustion requirement considerably more

difficult to satisfy than the habeas exhaustion requirement."

(Pet. for Cert., p. 13). But it should be. The PLRA does not

apply to habeas corpus actions because the PLRA's

requirements for access to federal court are more stringent

than similar requirements for habeas corpus actions. See

Walker v. O'Brien, 216 F.3d 626, 633-37 (7th Cir. 2000);

Davis v. Fechtel, 150 F.3d 486, 488-90 (Sth Cir. 1998);

Blair-Bey v. Quick, 151 F.3d 1036, 1039-42 (D.C. Cir.

1998); McIntosh v. United States Parole Board, 115 F.3d

809, 811-12 (10th Cir. 1997). The PLRA was intended to

reduce frivolous and abusive civil rights actions brought by

prisoners. See Blair-Bey, 151 F.3d at 1040; McIntosh, 115

F.3d at 811. While a civil rights action attacks the conditions

of the prisoner's confinement and requests monetary

compensation for such conditions, a habeas corpus

proceeding attacks the fact or duration of a prisoner's

confinement and seeks the remedy of immediate release or a

shortened period of confinement. See McIntosh, 115 F.3d at

2 Some of the rules for procedural default are unnecessary or inapplicable

in the context of the PLRA exhaustion requirement context. (See

Sections IIIB. and ILC. of this Brief). For example, the "fundamental

miscarriage of justice” exception to procedural default, which requires a

showing that a constitutional violation probably resulted in the

conviction of one who is actually innocent, does not apply outside of a

criminal context. Murray v. Carrier, 477 U.S. 478, 496 (1986).

15

812. More is at stake with a habeas corpus action, and as

such, there is a long tradition of ready access of prisoners to

federal habeas corpus, as distinct from their access to tort

remedies. See Blair-Bey, 151 F.3d at 1040-41. Therefore,

the PLRA exhaustion requirement is, and should be, stricter

than the habeas corpus exhaustion requirement.

In summary, the Seventh Circuit's decision, that an

inmate's failure to properly raise his claims at the

administrative level bars federal review of those claims, is

necessary to protect the integrity of the PLRA exhaustion

requirement and to protect the important interests served by

procedural rules generally. Although the rule is analogous to

procedural default, the PLRA exhaustion requirement is

stricter than the habeas corpus exhaustion requirement and

not all the rules of procedural default are necessary or

applicable in this context.

B. Even if the ules of

procedural default apply in

the context of the PLRA

exhaustion requirement,

Pozo procedurally defaulted

his claim because the

administrative reviewer

dismissed his appeal based

upon an independent and

adequate state procedural

rule.

In the analogous situation of federal habeas corpus

actions under 28 U.S.C. § 2254, federal habeas relief is

barred if the state court declined to reach the merits of the

petitioner's claim because of a procedural default and that

default constituted an independent and adequate state-law

16

ground for the disposition of the case. See Coleman v.

Thompson, 501 U.S. 722, 729-30 (1991); Thomas v.

McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000). The

procedural rule at issue in this case meets these

requirements.

A state court's decision is independent if that court

actually relied on the procedural bar as an independent basis

for its disposition of the case, and it clearly and expressly

stated that its judgment rests on a state procedural bar. See

Harris v. Reed, 489 U.S. 255, 261-63 (1989). A state court's

finding of procedural default is adequate if the procedural

rule is "firmly established and regularly followed." James v.

Kentucky, 466 U.S. 341, 348-49 (1984). The procedural rule

must be applied in a "consistent and principled way"; it

cannot be employed "infrequently, unexpectedly, or

freakishly." Lilly v. Gilmore, 988 F.2d 783, 785 (7th Cir.),

cert. denied, 510 U.S. 852 (1993); Barksdale v. Lane, 957

F.2d 379, 382 (7th Cir.), cert. denied, 506 U.S. 890 (1992);

see also Johnson v. Mississippi, 486 U.S. 578, 587-89 (1988)

(procedural bar must be consistently or regularly applied);

NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 297

(1964) (procedural bar cannot be applied with "pointless

severity"). If a prisoner could not have been deemed to have

been apprised of the rule's existence at the time he omitted

the procedural step, the state court's judgment is not an

adequate ground that would bar federal habeas review. See

Ford v. Georgia, 498 U.S. 411, 423 (1991); NAACP v.

Alabama ex rel. Patterson, 357 U.S. 449, 457 (1958).

In this case, the CCE relied upon an independent and

adequate procedural rule in dismissing Pozo's administrative

appeals. The CCE's reasons for dismissal were independent

because he did not address the merits of the appeal and,

instead, clearly and expressly stated that the appeals were

dismissed as untimely pursuant to Wis. Admin. Code § DOC

17

310.13(1). The reasons for dismissal were adequate because

the time limit for appeal to the CCE under § DOC 310.13(1)

was firmly established, such that Pozo was notified of the

rule's existence, at the time he received the adverse decisions

from the warden and at the time he filed his appeals to the

CCE.

Pozo argues that the CCE was "free to apply or

ignore [the time limit rule] at whim" because the rule is

subject to an exception whereby the CCE may review the

merits of an appeal, despite an untimely filing, if the elapsed

time has not made it difficult or impossible to investigate the

complaint. (Pet. for Cert., p. 12). Pozo further argues that

the rule would be adequate if (1) Wisconsin legislators

adopted timeliness rules "that are more certain in their

application"; or (2) Wisconsin prison officials refusing to

hear appeals found "explicitly that § 310.13(3) cannot be

invoked to allow a late appeal because the passage of time

has rendered it ‘difficult’ or ‘impossible’ to consider the

inmate's grievance." (Pet. for Cert., p. 13).

Contrary to Pozo's arguments, the fact that the time

limit rule is subject to a discretionary exception does not

mean that the rule is applied at whim. Wisconsin Admin.

Code § DOC 310.13(1) provides a clear time limit for appeal

to the CCE. Section DOC 310.13(3) provides an exception,

which allows the CCE to review the merits of an appeal,

despite an untimely filing, if the elapsed time has not made it

difficult or impossible to investigate the complaint. The only

way for the rule to be "more certain in [its] application,"

(Pet. for Cert., p. 13), would be if it were not subject to any

exception at all. But, the fact that it is subject to a

discretionary exception does not render the rule inadequate.

[P]rocedural rules need rot be utterly

mechanical. That the application of a rule

18

requires the exercise of judicial discretion

does not render the rule inadequate to support

a state decision. In fact, a bright-line rule for

delay can operate more harshly than a

discretionary rule.

Morales v. Calderon, 85 F.3d 1387, 1392 (9th Cir. 1996).

Similarly, if a firmly established procedural rule is subject to

an exception, which the state court impliedly rejects by

relying solely on the general procedural rule, the state court

cannot be said to have acted unexpectedly or freakishly. See

Thomas, 201 F.3d at 1003-05.

In addition, there is no requirement that the CCE

state why he or she is not applying the time limit exception.

When the CCE dismisses a complaint as untimely under the

general procedural rule in § DOC 310.13(1), nothing in the

code requires him to explicitly state why he is not employing

the exception in § DOC 310.13(3) or to show that the

elapsed time has made it difficult or impossible to

investigate the complaint. Neither the discretion afforded the

CCE in the application of the exception nor the fact that he

implicitly rejects the exception when he relies solely on the

general procedural rule renders the rule inadequate to

support the administrative decision. See Morales, 85 F.3d at

1392; Thomas, 201 F.3d at 1003-05.

Pozo also urges this court to accept review of this

case because he contends that the Seventh Circuit's decision

conflicts with the Ninth Circuit's decision in Morales v.

Calderon, 85 F.3d 1387 (9th Cir. 1996). As discussed

above, Morales is consistent with the Seventh Circuit's

decision because the Ninth Circuit concluded that the

exercise of discretion does not per se render the rule

inadequate. See id. at 1387. Even though the Ninth Circuit

determined that the California rule in question was not an

19

adequate state ground sufficient to support a procedural

default, the California rule is so different from the rule at

issue in this case that the cases cannot be said to be in

conflict.

The best way to illustrate the difference between the

rule at issue in Morales and the rule at issue in this case is to

quote the California rule:

1. Timeliness standards

1-1. Appellate counsel in capital cases

shall have a duty to investigate factual and

legal grounds for the filing of a petition for a

writ of habeas corpus. All petitions for writs

of habeas corpus should be filed without

substantial delay.

1-1.1. A petition for a writ of habeas corpus

will be presumed to be filed without

substantial delay if it is filed within 60 days

after the final due date for the filing of

appellant's reply brief on the direct appeal.

1-1.2. A petition filed more than 60 days

after the final due date for the filing of

appellant's reply brief on the direct appeal

may establish absence of substantial delay if it

alleges with specificity facts showing the

petition was filed within a reasonable time

after petitioner or counsel became aware of

information indicating a factual basis for the

claim and became aware, or should have

become aware, of the legal basis for the

claim.

1-1.3. Alternatively, a petition may establish

absence of substantial delay if it alleges with

specificity facts showing that although

petitioner or counsel was aware of the factual

20

and legal bases for the claim before January

16, 1986, the petition was filed within a

reasonable time after that date.

1-2. If a petition is filed after substantial

delay, the petition must demonstrate good

cause for the delay. A _ petitioner may

establish good cause by showing particular

circumstances sufficient to justify substantial

delay.

1-3. Any petition that fails to comply with

these requirements may be denied as

untimely.

Id. at 390 (quoting Supreme Court Policies Regarding Cases

Arising from Judgments of Death, in California Rules of

Court - State 745-46 (1990)) (internal citations and footnotes

omitted).

The Ninth Circuit concluded that this rule was not an

adequate state ground sufficient to support a procedural

default because it was not "clear, consistently applied, and

well-established." Jd. at 1393. The rule was vague because

[nJeither the Standards nor [subsequent cases]

however, established what amount of delay

would be considered ‘substantial,’ nor did

either set out criteria for determining ‘good

cause’ to excuse such delay. They also did

not prescribe whether and when untimeliness

might be waived altogether, even though good

cause had not been shown.

Id. at 1391. The rule was inconsistently applied because

there was so much variation in the application of the rule that

no discernable clear rule existed for cases filed beyond the

21

time limit. See id. Thus, both the rule and its exception

were unclear and inconsistently applied.

Unlike the California rule at issue in Morales which

requires petitions to be filed “without substantial delay,"

Wis. Admin. Code § DOC 310.13(1) provides a clear 10-day

time limit for appeal to the CCE. Because the time limit is

unambiguous, there is no need for the CCE to address the

exception unless he or she intends to invoke it and review the

merits. Moreover, there is no evidence in the record that the

CCE applies the exception inconsistently or that the CCE

waives the time limit for other reasons. Therefore, because

the rules at issue are so materially different, this case is not

inconsistent with Morales.

CG Pozo has waived his

argument that his default is

excused if cause and

prejudice are demonstrated

because he failed to raise this

argument on appeal to the

Seventh Circuit.

Pozo argues that review is warranted because the

Seventh Circuit's decision cannot be reconciled with the long

line of habeas exhaustion cases holding that a petitioner's

procedural default may be excused upon a showing of cause

and prejudice. (Pet. for Cert., p. 15). Pozo did not raise the

"cause and prejudice" argument on appeal to the Seventh

Cirouit, nor did he present any facts which would excuse

Pozo's procedural default. Therefore, he has waived review

of this issue herein. See Youakim v. Miller, 425 U.S. 231,

234 (1976).

Moreover, the "cause and prejudice" exception to

procedural default is not directly applicable because there is

22

no substantial compliance or good faith exception to the

PLRA exhaustion requirement, see Smith v. Zachary, 255

F.3d 446, 452 (7th Cir. 2001); Wolff v. Moore, 199 F.3d 324,

327 (6th Cir. 1999), and because the administrative time

limits in Wisconsin have exceptions built into the rules, see

Wis. Admin. Code §§ DOC 310.09(3), 310.13(3), so inmates

are required to raise their reasons for default at the

administrative level, which Pozo did not do. See Buelow v.

Dickey, 847 F.2d 420, 426 (7th Cir. 1988) (petitioner waived

ineffective assistance of counsel as cause for procedural

default by failing to raise the contention in state court).

CONCLUSION

For the reasons set forth above, this Court should

deny the petition for writ of certiorari.

Dated this 11 day of September, 2002.

Respectfully submitted,

JAMES E. DOYLE

Attorney General

KARLA Z. KECKHAVER*

Assistant Attorney General

Counsel of Record

Attorneys for Respondents

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 264-6365