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Coleman v. Thompson (89-7662), 501 U.S. 722 (1991)
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COLEMAN v. THOMPSON

No. 89-7662

KEITH COLEMAN, PETITIONER v. CHARLES E. THOMPSON, WARDEN

[June 24, 1991]

Justice Blackmun, with whom Justice Marshall and Justice Stevens join, dissenting.

Federalism; comity; state sovereignty; preservation of state resources; certainty: the majority methodically inventories these multifarious state interests before concluding that the plain-statement rule of Michigan v. Long, 463 U.S. 1032 (1983), does not apply to a summary order. One searches the majority's opinion in vain, however, for any mention of petitioner Coleman's right to a criminal proceeding free from constitutional defect or his interest in finding a forum for his constitutional challenge to his conviction and sentence of death. Nor does the majority even allude to the "important need for uniformity in federal law," id., at 1040, which justified this Court's adoption of the plain-statement rule in the first place. Rather, displaying obvious exasperation with the breadth of substantive federal habeas doctrine and the expansive protection afforded by the Fourteenth Amendment's guarantee of fundamental fairness in state criminal proceedings, the Court today continues its crusade to erect petty procedural barriers in the path of any state prisoner seeking review of his federal constitutional claims. Because I believe that the Court is creating a Byzantine morass of arbitrary, unnecessary, and unjustifiable impediments to the vindication of federal rights, I dissent.

I

The Court cavalierly claims that "[t]his is a case about federalism," ante, at 1, and proceeds without explanation to assume that the purposes of federalism are advanced whenever a federal court refrains from reviewing an ambiguous state court judgment. Federalism, however, has no inherent normative value: it does not, as the majority appears to assume, blindly protect the interests of States from any incursion by the federal courts. Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power. "Federalism is a device for realizing the concepts of decency and fairness which are among the fundamental principles of liberty and justice lying at the base of all our civil and political institutions." Brennan, Federal Habeas Corpus and State Prisoners: An Exercise in Federalism, 7 Utah L. Rev. 423, 442 (1961). See also The Federalist No. 51, p. 324 (C. Rossiter ed. 1961) (J. Madison) ("Justice is the end of government. It is the end of civil society"). In this context, it cannot lightly be assumed that the interests of federalism are fostered by a rule that impedes federal review of federal constitutional claims.

Moreover, the form of federalism embraced by today's majority bears little resemblance to that adopted by the Framers of the Constitution and ratified by the original States. The majority proceeds as if the sovereign interests of the States and the Federal Government were co-equal. Ours, however, is a federal republic, conceived on the principle of a supreme federal power and constituted first and foremost of citizens, not of sovereign States. The citizens expressly declared: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land." U. S. Const. Art. VI., cl. 2. James Madison felt that a constitution without this clause "would have been evidently and radically defective." The Federalist No. 44, p. 286 (C. Rossiter ed. 1961). The ratification of the Fourteenth Amendment by the citizens of the several States expanded federal powers even further, with a corresponding diminution of state sovereignty. See Fitzpatrick v. Bitzer, 427 U.S. 445, 453-456 (1976); Ex parte Virginia, 100 U.S. 339, 344-348 (1879). Thus, "the sovereignty of the States is limited by the Constitution itself." Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 548 (1985).

Federal habeas review of state court judgments, respectfully employed to safeguard federal rights, is no invasion of State sovereignty. Cf. Ex parte Virginia, 100 U. S., at 346. Since 1867, Congress has acted within its constitutional authority to " `interpose the federal courts between the States and the people, as guardians of the people's federal rights — to protect the people from unconstitutional action.' " Reed v. Ross, 468 U.S. 1, 10 (1984), quoting Mitchum v. Foster, 407 U.S. 225, 242 (1972). See 28 U.S.C. 2254. Justice Frankfurter, in his separate opinion in Brown v. Allen, 344 U.S. 443, 510 (1953), recognized this:

"Insofar as [federal habeas] jurisdiction enables federal district courts to entertain claims that State Supreme Courts have denied rights guaranteed by the United States Constitution, it is not a case of a lower court sitting in judgment on a higher court. It is merely one aspect of respecting the Supremacy Clause of the Constitution whereby federal law is higher than State law."

Thus, the considered exercise by federal courts — in vindication of fundamental constitutional rights — of the habeas jurisdiction conferred on them by Congress exemplifies the full expression of this Nation's federalism.

That the majority has lost sight of the animating principles of federalism is well illustrated by its discussion of the duty of a federal court to determine whether a state court judgment rests on an adequate and independent state ground. According to the majority's formulation, establishing this duty in the federal court serves to diminish the risk that a federal habeas court will review the federal claims of a prisoner in custody pursuant to a judgment that rests upon an adequate and independent state ground. In reality, however, this duty of a federal court to determine its jurisdiction originally was articulated to ensure that federal rights were not improperly denied a federal forum. Thus, the quote artfully reconstituted by the majority, ante, at 11, originally read: "[I]t is incumbent upon this Court, when it is urged that the decision of the state court rests upon a non-federal ground, to ascertain for itself, in order that constitutional guarantees may appropriately be enforced, whether the asserted nonfederal ground independently and adequately supports the judgment" (emphasis added). Abie State Bank v. Bryan, 282 U.S. 765, 773 (1931). Similarly, the Court has stated that the duty "cannot be disregarded without neglecting or renouncing a jurisdiction conferred by the law and designed to protect and maintain the supremacy of the Constitution and the laws made in pursuance thereof." Ward v. Board of County Comm'rs, 253 U.S. 17, 23 (1920). Indeed, the duty arose out of a distinct distrust of state courts, which this Court perceived as attempting to evade federal review. See Broad River Power Co. v. South Carolina ex rel. Daniel, 281 U.S. 537, 540 (1930) ("Even though the constitutional protection invoked be denied on non-federal grounds, it is the province of this Court to inquire whether the decision of the state court rests upon a fair and substantial basis. If unsubstantial, constitutional obligations may not thus be evaded").

From these noble beginnings, the Court has managed to transform the duty to protect federal rights into a self-fashioned abdication. Defying the constitutional allocation of sovereign authority, the Court now requires a federal court to scrutinize the state court judgment with an eye to denying a litigant review of his federal claims rather than enforcing those provisions of the federal Bill of Rights that secure individual autonomy.

II

Even if one acquiesced in the majority's unjustifiable elevation of abstract federalism over fundamental precepts of liberty and fairness, the Court's conclusion that the plain-statement rule of Michigan v. Long does not apply to a summary order defies both settled understandings and compassionate reason.

A

As an initial matter, it cannot seriously be disputed that the Court's opinion in Harris v. Reed, 489 U.S. 255 (1989), expressly considered this issue and resolved the question quite contrary to the Court's holding today. Both Long and Harris involved a federal review of a state court opinion that, on its face, addressed the merits of the underlying claims and resolved those claims with express reference to both state and federal law. See Long, 463 U. S., at 1037, and n. 3; Harris, 489 U. S., at 257-258. In each case, it was not disputed that the alleged state ground had been invoked: the Court was faced with the question whether that state ground was adequate to support the judgment and independent of federal law. Accordingly, the Long and Harris Courts spoke of state court judgments that "fairly appea[r] to rest primarily on federal law, or to be interwoven with federal law," Long, 463 U. S., at 1040, or that contained "ambiguous . . . references to state law." Harris, 489 U. S., at 263.

The majority asserts that these statements establish a factual predicate for the application of the plain-statement rule. Ante, at 10. Neither opinion, however, purported to limit the application of the plain-statement rule to the narrow circumstances presented in the case under review. In fact, the several opinions in Harris make plain that for purposes of federal habeas, the Court was adopting the Long presumption for all cases where federal claims are presented to state courts.

The Harris Court expressed its understanding of Long unequivocally: "We held in Long that unless the state court clearly expressed its reliance on an adequate and independent state-law ground, this Court may address a federal issue considered by the state court." Harris, 489 U. S., at 262-263. Armed with that understanding, the Court concluded that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ` "clearly and expressly" ' states that its judgment rests on a state procedural bar." Id., at 263, quoting Caldwell v. Mississippi 472 U.S. 320, 327 (1985), in turn quoting Long, 463 U. S., at 1041.

Justice O'Connor, in a concurring opinion joined by The Chief Justice and Justice Scalia, echoed the majority's indication that the Long presumption applied to all cases where a federal claim is presented to the state courts. She wrote separately to emphasize that the Court's opinion did not alter the well-settled rule that federal courts may look to state procedural-default rules in determining whether a federal claim has been properly exhausted in the state courts. See 489 U. S., at 268-270. "[I]t is simply impossible," according to the concurrence, "to `[r]equir[e] a state court to be explicit in its reliance on a procedural default' . . . where a claim raised on federal habeas has never been presented to the state courts at all." Id., at 270. Certainly, if the Court's opinion had been limited to cases where the state court's judgment fairly appeared to rest on federal law or was interwoven with federal law, the point painstakingly made in this concurrence would have been unnecessary.

That Harris' adoption of the plain-statement rule for federal habeas cases was intended to apply to all cases where federal claims were presented to the state courts is confirmed by the exchange there between the majority and the dissent. In his dissenting opinion, Justice Kennedy maintained that the Court's formulation of the plain-statement rule would encourage habeas prisoners whose claims would otherwise be procedurally barred to file "a never-ending stream of petitions for post-conviction relief" in hope of being "rewarded with a suitably ambiguous rebuff, perhaps a one-line order finding that a prisoner's claim `lacks merit' or stating that relief is `denied' " (emphasis added). Id., at 282. The Court responded that "the dissent's fear . . . that our holding will submerge courts in a flood of improper prisoner petitions is unrealistic: a state court that wishes to rely on a procedural bar rule in a one-line pro forma order easily can write that `relief is denied for reasons of procedural default.' " Id., at 265, n. 12. The Harris Court's holding that the plain-statement rule applies to a summary order could not itself have been more plain. Because the majority acknowledges that the Virginia Supreme Court's dismissal order "adds some ambiguity," ante, at 18, Harris compels a federal habeas court to provide a forum for the consideration of Coleman's federal claims.

B

Notwithstanding the clarity of the Court's holding in Harris, the majority asserts that Coleman has read the rule announced therein "out of context." Ante, at 10. I submit, however, that it is the majority that has wrested Harris out of the context of a preference for the vindication of fundamental constitutional rights and that has set it down in a vacuum of rhetoric about federalism. In its attempt to justify a blind abdication of responsibility by the federal courts, the majority's opinion marks the nadir of the Court's recent habeas jurisprudence, where the discourse of rights is routinely replaced with the functional dialect of interests. The Court's habeas jurisprudence now routinely, and without evident reflection, subordinates fundamental constitutional rights to mere utilitarian interests. See, e. g., McCleskey v. Zant, — U. S. — (1991). Such unreflective cost-benefit analysis is inconsistent with the very idea of rights. See generally R. Cover and T. Aleinikoff, Dialectic Federalism: Habeas Corpus and the Court, 86 Yale L. J. 1035, 1092 (1977). The Bill of Rights is not, after all, a collection of technical interests, and "surely it is an abuse to deal too casually and too lightly with rights guaranteed" therein. Brown v. Allen, 344 U. S., at 498 (opinion of Frankfurter, J.).

It is well settled that the existence of a state procedural default does not divest a federal court of jurisdiction on collateral review. See Wainwright v. Sykes, 433 U.S. 72, 82-84 (1977). Rather, the important office of the federal courts in vindicating federal rights gives way to the States' enforcement of their procedural rules to protect the States' interest in being an equal partner in safeguarding federal rights. This accommodation furthers the values underlying federalism in two ways. First, encouraging a defendant to assert his federal rights in the appropriate state forum makes it possible for transgressions to be arrested sooner and before they influence an erroneous deprivation of liberty. Second, thorough examination of a prisoner's federal claims in state court permits more effective review of those claims in federal court, honing the accuracy of the writ as an implement to eradicate unlawful detention. See Rose v. Lundy, 455 U.S. 509, 519 (1982); Brown v. Allen, 344 U. S., at 500-501 (opinion of Frankfurter, J.). The majority ignores these purposes in concluding that a State need not bear the burden of making clear its intent to rely on such a rule. When it is uncertain whether a state court judgment denying relief from federal claims rests on a procedural bar, it is inconsistent with federalism principles for a federal court to exercise discretion to decline to review those federal claims.

In justifying its new rule, the majority first announces that, as a practical matter, the application of the Long presumption to a summary order entered in a case where a state prisoner presented federal constitutional claims to a state court is unwarranted, because "it is simply not true that the `most reasonable explanation' is that the state judgment rested on federal grounds." Ante, at 12, quoting Long, 463 U. S., at 1041. The majority provides no support for this flat assertion. In fact, the assertion finds no support in reality. "Under our federal system, the federal and state `courts [are] equally bound to guard and protect the rights secured by the Constitution.' " Rose v. Lundy, 455 U. S., at 518, quoting, Ex parte Royall, 117 U.S. 241, 251 (1886). Accordingly, state prisoners are required to present their federal claims to state tribunals before proceeding to federal habeas, "to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." 455 U. S., at 518. See 28 U.S.C. 2254. Respect for the States' responsible assumption of this solemn trust compels the conclusion that state courts presented with federal constitutional claims actually resolve those claims unless they indicate to the contrary. Cf. Brown v. Allen, 344 U. S., at 512 (opinion of Frankfurter, J.) ("[The availability of the writ of habeas corpus] does not mean that prison doors may readily be opened. It does mean that explanation may be exacted why they should remain closed").

The majority claims that applying the plain-statement rule to summary orders "would place burdens on the States and state courts," ante, at 13, suggesting that these burdens are borne independently by the States and their courts. The State, according to the majority, "pays the price" for federal review of state prisoner claims "in terms of uncertainty and delay" as well as in the cost of a retrial. Ibid. The majority is less clear about the precise contours of the burden this rule is said to place on state courts, merely asserting that it "would also put too great a burden on the state courts." Ante, at 14.

The majority's attempt to distinguish between the interests of state courts and the interests of the States in this context is inexplicable. States do not exist independent of their officers, agents, and citizens. Rather, "[t]hrough the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign." Gregory v. Ashcroft, — U. S. —, — (1991) (slip op. 6) See also Ex parte Virginia, 100 U. S., at 347 ("A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way"). The majority's novel conception of dichotomous interests is entirely unprecedented. See ibid. ("[H]e [who] acts in the name and for the State, and is clothed with the State's power, his act is that of the State"). Moreover, it admits of no readily apparent limiting principle. For instance, should a federal habeas court decline to review claims that the state judge committed constitutional error at trial simply because the costs of a retrial will be borne by the State? After all, as the majority asserts, "there is little the State can do about" constitutional errors made by its trial judges. Ante, at 13.

Even if the majority correctly attributed the relevant state interests, they are, nonetheless, misconceived. The majority appears most concerned with the financial burden that a retrial places on the States. Of course, if the initial trial conformed to the mandate of the Federal Constitution, not even the most probing federal review would necessitate a retrial. Thus, to the extent the State must "pay the price" of retrying a state prisoner, that price is incurred as a direct result of the State's failure scrupulously to honor his federal rights, not as a consequence of unwelcome federal review. See Teague v. Lane, 489 U.S. 288, 306 (opinion of O'Connor, J., joined by The Chief Justice, Justice Scalia, and Justice Kennedy, quoting Desist v. United States, 394 U.S. 244, 262-263 (1969) (Harlan, J., dissenting)) (" `[T]he threat of habeas serves as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards' ").

The majority also contends without elaboration that a "broad presumption [of federal jurisdiction] would . . . put too great a burden on the state courts." Ante, at 14. This assertion not only finds no support in Long, where the burden of the presumption on state courts is not even mentioned, but also is premised on the misconception that the plainstatement rule serves only to relieve the federal court of the "bother" of determining the basis of the relevant state-court judgment. Viewed responsibly, the plain-statement rule provides a simple mechanism by which a state court may invoke the discretionary deference of the federal habeas court and virtually insulate its judgment from federal review. While state courts may choose to draw their orders as they wish, the right of a state prisoner, particularly one sentenced to death, to have his federal claim heard by a federal habeas court is simply too fundamental to yield to the State's incidental interest in issuing ambiguous summary orders.

C

Not only is the majority's abandonment of the plain-statement rule for purposes of summary orders unjustified, it is also misguided. In Long, the Court adopted the plain-statement rule because we had "announced a number of principles in order to help us determine" whether ambiguous state court judgments rested on adequate and independent state grounds, but had "not developed a satisfying and consistent approach for resolving this vexing issue." 463 U. S., at 1038. Recognizing that "[t]his ad hoc method of dealing with cases that involve possible adequate and independent state grounds is antithetical to the doctrinal consistency that is required when sensitive issues of federal-state relations are involved," id., at 1039 (emphasis added), the Court determined that a broad presumption of federal jurisdiction combined with a simple mechanism by which state courts could clarify their intent to rely on state grounds would best "provide state judges with a clearer opportunity to develop state jurisprudence unimpeded by federal interference, and yet will preserve the integrity of federal law." Id., at 1041. Today's decision needlessly resurrects the piecemeal approach eschewed by Long, and, as a consequence, invites the intrusive and unsatisfactory federal inquiry into unfamiliar state law that Long sought to avoid.

The Court's decisions in this case and in Ylst v. Nunnemaker, post, well reveal the illogic of the ad hoc approach. In this case, to determine whether the admittedly ambiguous state-court judgment rests on an adequate and independent state ground, the Court looks to the "nature of the disposition" and the "surrounding circumstances" that "indicat[e]" that the basis of the decision was procedural default. Ylst, post, at 5. This method of searching for "clues" to the meaning of a facially ambiguous order is inherently indeterminate. Tellingly, both the majority and concurring opinions in this case concede that it remains uncertain whether the state court relied on a procedural default. See ante, at 18 ("There is no doubt that the Virginia Supreme Court's `consideration' of all filed papers adds some ambiguity"); ante, at 1-2 (White, J., concurring) ("[I]t is as though the court had said that it was granting the motion to dismiss the appeal as untimely because the federal claims were untenable and provided the court no reason to waive the default"). The plain statement rule effectively and equitably eliminates this unacceptable uncertainty. I cannot condone the abandonment of such a rule when the result is to foreclose federal habeas review of federal claims based on conjecture as to the "meaning" of an unexplained order.

The Court's decision in Ylst demonstrates that we are destined to relive the period where we struggled to develop principles to guide the interpretation of ambiguous state court orders. In Ylst, the last state court to render a judgment on Nunnemaker's federal claims was the California Supreme Court. Nunnemaker had filed a petition for habeas corpus in that court, invoking its original jurisdiction. Accordingly, the court was not sitting to review the judgment of another state court, but to entertain, as an original matter, Nunne maker's collateral challenge to his conviction. The court's order denying relief was rendered without explanation or citation. Rejecting the methodology employed just today by the Coleman majority, the Ylst Court does not look to the pleadings filed in the original action to determine the "meaning" of the unexplained order. Rather, the Court adopts a broad per se presumption that "where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst, post, at 5. This presumption does not purport to distinguish between unexplained judgments that are entered on review of the reasoned opinion and those that are independent thereof.

The Ylst Court demonstrates the employment of the presumption by simply ignoring the judgment of the highest court of California, and by looking back to an intermediate court judgment rendered 12 years earlier to conclude that Nunnemaker's federal claims have been procedurally defaulted. In so concluding, the Court determines that an intervening order by the California Supreme Court, which, with citations to two state-court decisions, denied Nunnemaker's earlier petition invoking the court's original jurisdiction, is not "informative with respect to the question," post, at 8, whether a state court has considered the merits of Nunnemaker's claims since the procedural default was recognized. Thus, the Court dismisses two determinations of the California Supreme Court, rendered not in review of an earlier state-court judgment but as an exercise of its original jurisdiction, because it finds those determinations not "informative." While the Court may comfort itself by labelling this exercise "looking through," see post, at 6, it cannot be disputed that the practice represents disrespect for the State's determination of how best to structure its mechanisms for seeking postconviction relief.

Moreover, the presumption adopted by the Ylst Court further complicates the efforts of state courts to understand and accommodate this Court's federal habeas jurisprudence. Under Long, a state court need only recognize that it must clearly express its intent to rely on a state procedural default in order to preclude federal habeas review in most cases. After today, however, a state court that does not intend to rely on a procedural default but wishes to deny a meritless petition in a summary order must now remember that its unexplained order will be ignored by the federal habeas court. Thus, the state court must review the procedural history of the petitioner's claim and determine which state-court judgment a federal habeas court is likely to recognize. It then must determine whether that judgment expresses the substance that the court wishes to convey in its summary order, and react accordingly. If the previous reasoned judgment rests on a procedural default, and the subsequent court wishes to forgive that default, it now must clearly and expressly indicate that its judgment does not rest on a state procedural default. I see no benefit in abandoning a clear rule to create chaos.

III

Having abandoned the plain-statement rule with respect to a summary order, the majority must consider Coleman's argument that the untimely filing of his notice of appeal was the result of attorney error of sufficient magnitude as to constitute cause for his procedural default. In a sleight of logic that would be ironic if not for its tragic consequences, the majority concludes that a state prisoner pursuing state collateral relief must bear the risk of his attorney's grave errors — even if the result of those errors is that the prisoner will be executed without having presented his federal claims to a federal court — because this attribution of risk represents the appropriate "allocation of costs." Ante, at 29. Whether unprofessional attorney conduct in a state postconviction proceeding should bar federal habeas review of a state prisoner's conviction and sentence of death is not a question of costs to be allocated most efficiently. It is, rather, another circumstance where this Court must determine whether federal rights should yield to state interests. In my view, the obligation of a federal habeas court to correct fundamental constitutional violations, particularly in capital cases, should not accede to the State's "discretion to develop and implement programs to aid prisoners seeking to secure postconviction review." Pennsylvania v. Finley, 481 U.S. 551, 559 (1987).

The majority first contends that this Court's decision in Murray v. Carrier, 477 U.S. 478 (1986), expressly resolves this issue. Of course, that cannot be so, as the procedural default at issue in Murray occurred on direct review, not collateral attack, and this Court has no authority to resolve issues not before it. Moreover, notwithstanding the majority's protestations to the contrary, the language of Murray strongly suggests that the Court's resolution of the issue would have been the same regardless of when the procedural default occurred. The Court in Murray explained: "A State's procedural rules serve vital purposes at trial, on appeal, and on state collateral attack" (emphasis added). 477 U. S., at 490. Rejecting Carrier's argument that, with respect to the standard for cause, procedural defaults on appeal should be treated differently from those that occur during the trial, the Court stated that "the standard for cause should not vary depending on the timing of a procedural default or on the strength of an uncertain and difficult assessment of the relative magnitude of the benefits attributable to the state procedural rules that attach at each successive stage of the judicial process" (emphasis added). Id., at 491.

The rule foreshadowed by this language, which the majority today evades, most faithfully adheres to a principled view of the role of federal habeas jurisdiction. As noted above, federal courts forgo the exercise of their habeas jurisprudence over claims that are procedurally barred out of respect for the state interests served by those rules. Recognition of state procedural forfeitures discourages petitioners from attempting to avoid state proceedings, and accommodates the State's interest in finality. No rule, however, can deter gross incompetence. To permit a procedural default caused by attorney error egregious enough to constitute ineffective assistance of counsel to preclude federal habeas review of a state prisoner's federal claims in no way serves the State's interest in preserving the integrity of its rules and proceedings. The interest in finality, standing alone, cannot provide a sufficient reason for a federal habeas court to compromise its protection of constitutional rights.

The majority's conclusion that Coleman's allegations of ineffective assistance of counsel, if true, would not excuse a procedural default that occurred in the state post-conviction proceeding is particularly disturbing because, at the time of Coleman's appeal, state law precluded defendants from raising certain claims on direct appeal. As the majority acknowledges, under state law as it existed at the time of Coleman's trial and appeal, Coleman could raise his ineffective assistance of counsel claim with respect to counsel's conduct during trial and appeal only in state habeas. Ante, at 29. This Court has made clear that the Fourteenth Amendment obligates a State " `to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State's appellate process,' " Pennsylvania v. Finley, 481 U.S. 551, 556 (1986), quoting Ross v. Moffitt, 417 U.S. 600, 616 (1974), and "require[s] that the state appellate system be free from unreasoned distinctions." Id., at 612. While the State may have wide latitude to structure its appellate process as it deems most effective, it cannot, consistent with the Fourteenth Amendment, structure it in such a way as to deny indigent defendants meaningful access. Accordingly, if a State desires to remove from the process of direct appellate review a claim or category of claims, the Fourteenth Amendment binds the State to ensure that the defendant has effective assistance of counsel for the entirety of the procedure where the removed claims may be raised. Similarly, fundamental fairness dictates that the State, having removed certain claims from the process of direct review, bear the burden of ineffective assistance of counsel in the proceeding to which the claim has been removed.

Ultimately, the Court's determination that ineffective assistance of counsel cannot constitute cause of a procedural default in a state postconviction proceeding is patently unfair. In concluding that it was not inequitable to apply the cause and prejudice standard to procedural defaults that occur on appeal, the Murray Court took comfort in the "additional safeguard against miscarriages of justice in criminal cases": the right to effective assistance of counsel. 477 U. S., at 496. The Court reasoned: "The presence of such a safeguard may properly inform this Court's judgment in determining `[w]hat standards should govern the exercise of the habeas court's equitable discretion' with respect to procedurally defaulted claims." Ibid., quoting Reed v. Ross, 468 U.S. 1, 9 (1984). "[F]undamental fairness is the central concern of the writ of habeas corpus." Strickland v. Washington 466 U.S. 668, 697 (1984). It is the quintessence of inequity that the Court today abandons that safeguard while continuing to embrace the cause and prejudice standard.

I dissent.