Deterioration of Due Process for the Wrongfully Convicted Commentary
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Deterioration of Due Process for the Wrongfully Convicted

As a criminal defense attorney practicing post-conviction law for nearly twenty years, I’ve watched the Supreme Court whittle away convicted defendants’ right to contest their wrongful state convictions. The most recent example is the Supreme Court’s opinion in Shinn v. Martinez Ramirez, which prevents prisoners from entering federal court to litigate claims that were forfeited by negligent post-conviction counsel at the state level. This move will make it even harder for those who were wrongfully convicted to reclaim their freedom.

To understand the significance of Shinn, a quick review of federal writ history is important. The federal writ of habeas corpus is a constitutional doctrine that was designed to prevent arbitrary and unjust state convictions, as the federal writ provides a process for learned federal judges to review these cases. However, during the anti-crime frenzy of the 1990s, Congress passed a sweeping writ reform act (AEDPA) that limited defendants’ ability to contest their convictions in federal court. For example, the law imposed a strict one-year time limitation on contesting a state conviction in federal court. Another cornerstone of AEDPA is the rule that all federal post-conviction claims must first be presented in state court before the federal court will consider them. If a claim has not been presented in state court, then it is considered procedurally defaulted, meaning a defendant cannot raise that claim in federal court.

The Supreme Court has interpreted AEDPA as requiring defendants to prove that fair-minded jurists would all agree that the state court decision is incorrect. This is an incredibly high bar, as the conviction is upheld if fair-minded jurists might disagree on or debate the correctness of the state court decision. Moreover, about a decade ago in Cullen v. Pinholster, the Supreme Court interpreted AEDPA as preventing federal courts from holding an evidentiary hearing to allow defendants to develop the factual basis of their respective claims. According to the Supreme Court, the federal writ is a mere appeal of the denial of a state writ; in other words, facts developed at a federal evidentiary hearing are irrelevant to the question of whether the state court erred on the basis of the evidence before it.

However, the Supreme Court retained a judicially created exception to the harsh procedural default rule, giving defendants a bone that isn’t explicitly provided for by AEDPA law. The exception is this: if a defendant fails to present a claim (i.e., “defaults a claim”) in state court, then that defendant can overcome the procedural default rule in federal court by demonstrating that there was “cause and prejudice” for the default. In this context, “cause” would be the negligence of post-conviction counsel in failing to bring forth a meritorious claim in state court, such as ineffective assistance of trial counsel. “Prejudice” required proof that the defendant would be substantially harmed if the defaulted claim is not now considered by a federal court.

This exception to the procedural default rule allowed defendants to advance claims when, through no fault of their own, their post-conviction counsel was at fault. It’s most common to see this exception operate in death penalty cases, where defendants can be appointed appellate public defenders for their state writ. Even if that attorney does a poor job by failing to present a meritorious claim in the state writ, the convicted person would still have an opportunity to present that meritorious claim (usually ineffective assistance of trial counsel) in federal court prior to being executed.

Because a procedurally defaulted claim has not been litigated in state court, there is no record on which a federal court can decide the merits of that claim. As a result, federal courts continued to hold evidentiary hearings in order to reach the merits of procedurally defaulted claims, despite the general rule from the Pinholster opinion that evidentiary hearings are irrelevant to the resolution of federal writs.

The tension between Pinholster and the narrow exception for evidentiary hearings in “cause and prejudice” procedural-default cases lies at the heart of Shinn v. Martinez Ramirez. Unsurprisingly, this one didn’t turn out well for the defendants who had their state convictions overturned in the Ninth Circuit.

Justice Clarence Thomas’s 6-3 majority opinion in Shinn v. Martinez Ramirez cuts the procedural-default exception off at its knees. Now, there will be no remedy for those whose post-conviction attorney failed to raise a valid, available claim. The majority opinion begins by paying lip service to stare decisis, as the court affirms that the principle of “cause and prejudice” as a method to overcome procedural default remains the law of the land. However, it then held that because the failure to develop the facts underlying the procedurally defaulted claim (e.g., ineffective assistance of trial counsel) in state court is considered the fault of the defendant; there is no right to have an evidentiary hearing in federal court to develop the underlying facts supporting the defaulted claim.

The defendants in Shinn persuasively argued that they cannot be “at fault” for failing to develop an ineffective assistance of trial counsel claim when their post-conviction attorney negligently failed to raise that claim on the writ in state court. However, the majority held that under AEDPA and Supreme Court precedent, post-conviction counsel’s failure to develop the record in state court is attributed to the prisoner.

So, in this perverse, Kafkian world we live in, the Supreme Court has truly spoken out of both sides of its mouth: (1) defendants can continue to advance procedurally defaulted claims in federal court when they prove “cause and prejudice,” but (2) defendants can never develop the factual basis for these defaulted claims in federal court because even if their post-conviction counsel was negligent in failing to advance that legal claim, the fault for failing to develop the factual record is attributed to the defendant. So, defendants still get to make their defaulted claim in federal court, but they’re deprived of the ability to prove the merits of that claim in federal court (or anywhere).

I’m not sure what happened to due process, but it seems like it no longer exists in this context, as there’s now no process for state prisoners to prove their underlying claims once they clear the hurdle of demonstrating that “cause and prejudice” excused the procedural default. And if a claim was procedurally defaulted at the state level, of course, there’s no factual record supporting that claim, as it was never litigated.

Shinn v. Martinez Ramirez is the latest example of the absurdist charade of jurisprudence that has become our Supreme Court. It is a mockery of justice and belongs in The Trial instead of our revered case law.


Chris Perri is a criminal defense trial and post-conviction attorney based in Austin, Texas. He’s committed to fighting for individual liberty, freeing the wrongfully convicted, and reforming the criminal justice system.


Suggested citation: Chris Perri, Deterioration of Due Process for the Wrongfully Convicted, JURIST – Professional Commentary, June 25, 2022,

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