Insurmountable obstacles: Structural errors, procedural default, and ineffective assistance

Stanford Law Review

Volumn 64, Issue 3, 2012, Pages 727-764

  Burns, Amy Knight ^a  

^a STANFORD LAW SCHOOL   (United States)

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EID: 84860138883     PISSN: 00389765     EISSN: None     Source Type: Journal    
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References (155)

1. Vansickel v. White, 166 F.3d 953, 954 (9th Cir. 1999).
2. California defendants facing the death penalty or life in prison get twenty peremptory challenges, which is double the usual number. See CAL. CIV. PROC. CODE § 231(a) (West 2011) ("In criminal cases, if the offense charged is punishable with death, or with imprisonment in the state prison for life, the defendant is entitled to 20 and the people to 20 peremptory challenges. Except as provided in subdivision (b), in a trial for any other offense, the defendant is entitled to 10 and the state to 10 peremptory challenges.").
3. United States v. Annigoni, 96 F.3d 1132, 1134 (9th Cir. 1996) (en banc).
4. Inmate Locator, CAL. DEPT CORRECTIONS & REHABILITATION, http://inmatelocator.cdcr.ca.gov (search the "Inmate Number" field for "H42760") (last visited Mar. 9, 2012).
5. Note that the California Department of Corrections and Rehabilitation's listingfor Vansickel spells his name "Vansickle," while the court opinion spells it "Vansickel."
6. 433 U.S. 72 (1977).
7. WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 28.4(a) (4th ed. 2004) (recognizing the ambiguity, citing cases, and expressing a preference for a presumption of prejudice);
8. BRIAN R. MEANS, FEDERAL HABEAS MANUAL § 9B:80 (2008) (noting that different courts have resolved the Sykes prejudice issue differently).
9. Chapman v. California, 386 U.S. 18, 22 (1967);
10. Tom Stacy & Kim Dayton, Rethinking Harmless Constitutional Error, 88 COLUM. L. REV. 79, 82-83 (1988).
11. Chapman, 386 U.S. at 22.
12. Jason S. Marks, Harmless? Constitutional Error: Fundamental Fairness and Constitutional Integrity, CRIM. JUST., Spring 1993, at 2, 2.
13. Arizona v. Fulminante, 499 U.S. 279, 310 (1991).
14. For example, constitutional errors on direct appeal must be harmless beyond a reasonable doubt, see Chapman, 386 U.S. at 24, and the same errors on habeas must be proven to have had substantial and injurious effect," Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). The potential influence of these differences is discussed below in Part III.C.
15. Stacy & Dayton, supra note 7, at 82-83 & n.16.
16. FED. R. CRIM. P. 52(a) (emphasis added).
17. "On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties." 28 U.S.C. § 2111 (2006).
18. 386 U.S. at 24.
19. Id. at 23.
20. Rose v. Clark, 478 U.S. 570, 577-78 (1986); see also Stacy & Dayton, supra note 7, at 84.
21. 499 U.S. 279, 280 (1991).
22. See id. at 307-310.
23. A 1999 Supreme Court case lists the following as clearly structural errors: complete denial of counsel, a biased trial judge, racial discrimination in the selection of the grand jury, denial of self-representation at trial, denial of public trial, and a defective reasonable doubt instruction. Neder v. United States, 527 U.S. 1, 8 (1999).
24. David McCord, The "Trial"/"Structural" Error Dichotomy: Erroneous, and Not Harmless, 45 U. KAN. L. REV. 1401 (1997).
25. 499 U.S. at 309.
26. Id. at 310;
27. United States v. Soto, 519 F.3d 927, 930 (9th Cir. 2008) ("We hold that failure to give a Carter instruction is not a structural error, because it does not 'affect the framework within which the trial proceeds'" (quoting United States v. Gonzalez- Lopez, 548 U.S. 140, 148 (2006))).
28. United States v. Navarro, 608 F.3d 529, 538 (9th Cir. 2010) ("[S]tructural error' is a term of art for error requiring reversal regardless of whether it is prejudicial or harmless...."); United States v. Brandao, 539 F.3d 44, 58 (1st Cir. 2008) (defining structural errors as "constitutional errors that deprive the defendant of a fundamentally fair trial and thus may not be found harmless under Rule 52(a)'s harmless error standard").
29. McCord, supra note 21, at 1412-17.
30. Hayes v. Missouri, 120 U.S. 68, 70 (1887) ("Experience has shown that one of the most effective means to free the jury-box from men unfit to be there is the exercise of the peremptory challenge. The public prosecutor may have the strongest reasons to distrust the character of a juror offered, from his habits and associations, and yet find it difficult to formulate and sustain a legal objection to him. In such cases, the peremptory challenge is a protection against his being accepted.").
31. 96 F.3d 1132, 1145 (9th Cir. 1996) (en banc); see also United States v. McFerron, 163 F.3d 952, 956 (6th Cir. 1998) ("Moreover, on a practical note, it would be virtually impossible to determine whether the erroneous denial of a peremptory challenge was harmless enough to warrant affirming a conviction.").
32. Rose v. Mitchell, 443 U.S. 545, 551 (1979) (citing a long line of cases requiring automatic reversal for grand jury discrimination); Tankleff v. Senkowski, 135 F.3d 235, 248 (2d Cir. 1998) (holding that Batson claims-complaints that a lawyer exercised peremptory challenges on the basis of race-are not amenable to harmless error review, without explicating why); Ford v. Norris, 67 F.3d 162, 170 (8th Cir. 1995) (coming to the same conclusion under Batson's predecessor, Swain v. Alabama, 380 U.S. 202 (1965)).
33. Arizona v. Fulminante, 499 U.S. 279, 310 (1991); Chapman v. California, 386 U.S. 18, 23 n.8 (1967).
34. 273 U.S. 510 (1927).
35. Cartalino v. Washington, 122 F.3d 8, 9 (7th Cir. 1997) (citing, inter alia, Tumey, 273 U.S. at 535).
36. United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006) (emphasis added).
37. Holloway v. Arkansas, 435 U.S. 475, 491 (1978).
38. Cf. infra Part I.B.4.
39. Faretta v. California, 422 U.S. 806 (1975).
40. McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984).
41. Arizona v. Fulminante, 499 U.S. 279, 310 (1991).
42. Waller v. Georgia, 467 U.S. 39, 46 (1984) ("[T]he presence of interested spectators may keep... triers keenly alive to a sense of their responsibility and to the importance of their functions...." (second omission in original) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979))).
43. Id. at 49 n.9 (quoting People v. Jones, 391 N.E.2d 1335, 1340 (N.Y. 1979)).
44. Powers v. Ohio, 499 U.S. 400, 415 (1991) (holding that defendants have third party standing in the Batson context to bring excluded jurors' equal protection claims);
45. Rose v. Mitchell, 443 U.S. 545, 556 (1979) ("The harm is not only to the accused, indicted as he is by a jury from which a segment of the community has been excluded. It is to society as a whole.").
46. 466 U.S. 648, 658 (1984); see also id. at 658 n.24 (citing cases where harmless erro ranalysis was not necessary due to the high probability of prejudice); Estes v. Texas, 381 U.S. 532, 542-43 (1965) ("[A]t times a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process.").
47. Cronic, 466 U.S. at 649.
48. Id. at 659-660.
49. Id. at 656.
50. 425 U.S. 501 (1976).
51. Id. at 505.
52. Chapman v. California, 386 U.S. 18, 23 (1967) ("[T]here are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.").
53. Neder v. United States, 527 U.S. 1, 7 (1999).
54. 476 U.S. 79, 84 (1986).
55. Miller-El v. Dretke, 545 U.S. 231 (2005).
56. Eric L. Muller, Solving the Batson Paradox: Harmless Error, Jury Representation, and the Sixth Amendment, 106 YALE L.J. 93, 116 n.148 (1996) (collecting cases).
57. Chapman v. California, 386 U.S. 18, 23 (1967) ("[T]here are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.").
58. Neder v. United States, 527 U.S. 1, 7 (1999).
59. 476 U.S. 79, 84 (1986).
60. Miller-El v. Dretke, 545 U.S. 231 (2005).
61. Eric L. Muller, Solving the Batson Paradox: Harmless Error, Jury Representation, and the Sixth Amendment, 106 YALE L.J. 93, 116 n.148 (1996) (collecting cases).
62. In Hollis, the court was unable to perform harmless error analysis due to the absence of a transcript; they did express an intention, otherwise, to weigh the evidence and consider the probability of an acquittal by an unbiased jury. 941 F.2d at 1483. We do not know, however, whether the court, transcript in hand, would actually have been able to consider the effect of the jury composition, since the court would not have a transcript of what happened in the jury room but only of the evidence presented at trial; it thus could not assess the role of bias.
63. Muller, supra note 51, at 96.
64. Occasionally, courts do attempt to conduct this analysis, and the results are unsettling. See infra Part IV.B.3.
65. Powers v. Ohio, 499 U.S. 400, 415 (1991) (holding that a defendant has thirdparty standing to challenge the equal protection violations of the jurors, meaning that a defendant can also challenge the exclusion of jurors of his own race).
66. Rose v. Mitchell, 443 U.S. 545, 558 (1979).
67. Id. at 557-558.
68. Id. at 556.
69. Powers, 499 U.S. at 412.
70. Id. at 411 ("The discriminatory use of peremptory challenges by the prosecution causes a criminal defendant cognizable injury, and the defendant has a concrete interest in challenging the practice.").
71. The Faretta right is named for Faretta v. California, 422 U.S. 806 (1975), which was the landmark case establishing the right to represent oneself in criminal proceedings. 68. Mitchell, 443 U.S. at 558 (internal quotation marks omitted).
72. 508 U.S. 275, 280 (1993).
73. United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977) ("[A] trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict, regardless of how overwhelmingly the evidence may point in that direction." (citations omitted)).
74. At least one circuit-the Eighth-has treated Batson claims differently from traditional claims of structural error in the context of ineffective counsel claims under Strickland v. Washington, 466 U.S. 668 (1984). Compare McGurk v. Stenberg, 163 F.3d 470, 474-75 (8th Cir. 1998) (treating counsel's failure to inform defendant of his right to a jury trial as a structural error and presuming prejudice under Strickland), with Young v. Bowersox, 161 F.3d 1159, 1160-61 (8th Cir. 1998) (requiring a showing of prejudice for a Batson error as an incidence of ineffective assistance). The Bower sox court did not acknowledge the fact that prejudice is generally presumed for Batson errors, and parroted the language in Strickland, holding that "Young has not shown a reasonable probability that the results of the proceeding would have been different." Bower sox, 161 F.3d at 1161. We thus have little clue as to the Eighth Circuit's reasoning. For further discussion of this case, see Part IV.B.3, below.
75. The Batson analysis is a three-step process. First, a defendant must make a prima facie showing that there was discrimination in the jury selection process. Second, the prosecutor is permitted to offer his race-neutral reasons for striking the challenged jurors. The trial court then determines whether purposeful discrimination has been established. See Batson v. Kentucky, 476 U.S. 79, 96-98 (1986).
76. For a more detailed description of the concept of cause and prejudice, see Part II below.
77. Federal courts can, of course, also conduct collateral review of federal convictions. See 28 U.S.C. § 2255 (2006). These federal habeas claims present similar issues, and indeed, several of the cases discussed in Part IV arose in the § 2255 context. However, I generally focus on review of state convictions, as they present more challenges for the question of when review is appropriate, given concerns of comity and federalism that are absent in the § 2255 context. In other words, arguments in favor of review of state convictions will all apply in the federal context, but the reverse is not necessarily true.
78. 28 U.S.C. § 2254.
79. Coleman v. Thompson, 501 U.S. 722, 729-33 (1991) (citing Michigan v. Long, 463 U.S. 1032 (1983)).
80. Fay v. Noia, 372 U.S. 391, 434, 439 (1963) (holding that federal habeas courts may hear claims that would otherwise be barred by state procedural rules unless the petitioner deliberately bypassed the state court).
81. Wainwright v. Sykes, 433 U.S. 72, 85-87 (1977).
82. Coleman, 501 U.S. at 730-31.
83. Sykes, 433 U.S. at 87.
84. Murray v. Carrier, 477 U.S. 478, 488 (1986).
85. RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE § 26.3[c] (6th ed. 2011) (citing a variety of open-ended formulations). Sykes, 433 U.S. at 90-91.
86. 466 U.S. 668, 687, 694 (1984).
87. Carrier, 477 U.S. at 488 ("So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default." (citation omitted)).
88. th Cir. 2001) ("Since the two prejudice inquiries are so closely linked in this case, we discuss them together."); Hollis v. Davis, 941 F.2d 1471, 1478 n.7 (11th Cir. 1991)
89. ("Of course, inadequate representation is only one of two components of constitutionally ineffective counsel; the inept representation also must have prejudiced the accused's defense. We defer discussing the prejudice component until we reach it in dealing with avoidance of the procedural bar." (citation omitted)). But see Maupin v. Smith, 785 F.2d 135, 139 (6th Cir. 1986) (holding that prejudice from the default and prejudice from the underlying violation are distinct). Other cases consider the two together without explicitly acknowledging that there are two standards. See, e.g., Vansickel v. White, 166 F.3d 953, 958-59 (9th Cir. 1999) (considering both under the heading of "prejudice" without specifying which prejudice standard is involved).
90. Carrier, 477 U.S. at 488.
91. Strickland, 466 U.S. at 694.
92. Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
93. Carrier, 477 U.S. at 488.
94. Although the Supreme Court has recognized that a different-more state friendly- harmless error standard applies on habeas rather than on direct appeal, see, it has also continued to acknowledge that some errors were exempt from this higher standard, and could demand reversal on habeas without a showing of prejudice. See id. at 629-30 ("At the other end of the spectrum of constitutional errors lie 'structural defects in the constitution of the trial mechanism, which defy analysis by harmless-error standards.' The existence of such defects-deprivation of the right to counsel, for example-requires automatic reversal of the conviction because they infect the entire trial process." (footnote and citations omitted) (internal quotation marks omitted) (quoting Arizona v. Fulminante, 499 U.S. 279, 309 (1991))).
95. Errors accepted as structural include complete denial of counsel, biased trial judge, racial discrimination in the selection of a grand jury, denial of self-representation at trial, denial of a public trial, and a defective reasonable doubt instruction.
96. Neder v. United States, 527 U.S. 1, 8 (1999).
97. Engle v. Isaac, 456 U.S. 107, 135 (1982).
98. The Court has denied certiorari in a number of cases raising this issue. See, e.g., Purvis v. McDonough, 549 U.S. 1035 (2006); Williams v. Brown, 546 U.S. 934 (2005);
99. Ward v. Hinsley, 543 U.S. 1011 (2004); Bell v. Beck, 534 U.S. 830 (2001); White v. Vansickel, 528 U.S. 965 (1999); Young v. Bowersox, 528 U.S. 880 (1999); Davis v. Hollis, 503 U.S. 938 (1992).
100. Strickland v. Washington, 466 U.S. 668, 687 (1984).
101. United States v. Cronic, 466 U.S. 648, 659 (1984).
102. Premo v. Moore, 131 S. Ct. 733, 743 (2011) ("The Fulminante prejudice inquiry presumes a constitutional violation, whereas Strickland seeks to define one."). The Premo Court rejected the Ninth Circuit's application of Fulminante's presumption of prejudice to a substantive Strickland claim where Sykes was not at issue. Thus, to the extent that its holding speaks to the prejudice requirement in the Strickland context, it is limited to the substantive Strickland inquiry, and says nothing about the cause and prejudice test. See infra text accompanying note 118.
103. Tumey v. Ohio, 273 U.S. 510, 523 (1927).
104. United States v. Withers, 638 F.3d 1055, 1066-68 (9th Cir. 2011) (substantive ineffective assistance of counsel for failure to raise a public trial claim); Virgil v. Dretke, 446 F.3d 598, 608 (5th Cir. 2006) (substantive ineffective assistance of counsel claim for failure to use challenges for cause);
105. th Cir. 1998) (substantive ineffective assistance of counsel claim for failure to make a Batson objection).
106. 507 U.S. 619, 627 (1993).
107. Id. at 634-637.
108. A case raising Sykes prejudice without Strickland is currently before the Sixth Circuit. See Ambrose v. Booker, No. 11-1430 (6th Cir. argued Feb. 28, 2012). In Ambrose, a computer glitch allegedly gave rise to a fair cross-section violation; while the hidden nature of the glitch constitutes cause, the Sixth Circuit is considering the State's argument that the petitioner must show actual prejudice from the violation. See Brief for Appellee at 30-31, Ambrose, No. 11-1430.
109. 411 U.S. 233 (1973).
110. Id. at 245.
111. 425 U.S. 536, 542 (1976).
112. Purvis v. Crosby, 451 F.3d 734, 742 (11th Cir. 2006); Hollis v. Davis, 941 F.2d 1471, 1479-80 (11th Cir. 1991).
113. Owens v. United States, 483 F.3d 48, 64 n.14 (1st Cir. 2007).
114. 408 U.S. 238 (1972).
115. 428 U.S. 153 (1976).
116. 466 U.S. 648 (1984).
117. 535 U.S. 685 (2002).
118. Quintero v. Bell, 256 F.3d 409, 412-15 (6th Cir. 2001).
119. Bell v. Quintero, 535 U.S. 1109 (2002).
120. Quintero v. Bell, 368 F.3d 892, 893 (6th Cir. 2004).
121. Bell v. Quintero, 544 U.S. 936 (2005).
122. See Quintero v. Bell, 256 F.3d at 413 n.3 (6th Cir. 2001) ("Since the two prejudice inquiries are so closely linked in this case, we discuss them together.").
123. 131 S. Ct. 733 (2011).
124. See supra note 86 and accompanying text.
125. Premo, 131 S. Ct. at 744.
126. Id.
127. United States v. Gonzales-Lopez, 548 U.S. 140, 150 (2006).
128. 474 U.S. 52, 59 (1985).
129. Johnson v. Sherry, 586 F.3d 439, 447 (6th Cir. 2009) ("Because the right to a public trial is a structural guarantee, if the closure were unjustified or broader than necessary, prejudice would be presumed."); Owens v. United States, 483 F.3d 48, 64 (1st Cir. 2007) ("If the failure to hold a public trial is structural error, and it is impossible to determine whether a structural error is prejudicial, we must then conclude that a defendant who is seeking to excuse a procedurally defaulted claim of structural error need not establish actual prejudice." (citations omitted)); Miller v. Dormire, 310 F.3d 600, 603 (8th Cir. 2002) (citing McGurk as requiring a presumption of Strickland prejudice where attorney's deficient performance causes a structural error); McGurk v. Stenberg, 163 F.3d 470, 475 (8th Cir. 1998)
130. ("[W]e hold that when counsel's deficient performance causes a structural error, we will presume prejudice under Strickland."); see also Bell v. Jarvis, 236 F.3d 149, 165 (4th Cir. 2000) (noting in dicta that Strickland prejudice may be presumed for structural errors). The Eighth Circuit, however, has not been entirely uniform in its views and has failed to apply its holding from McGurk in the context of Batson claims. See Young v. Bowersox, 161 F.3d 1159, 1160-61 (8th Cir. 1998) (requiring a showing of Strickland prejudice for failure to raise a Batson claim).
131. Vansickel v. White, 166 F.3d 953, 960 (9th Cir. 1999) (Reinhardt, J., dissenting) ("Without explaining how Vansickel or any other litigant could possibly make such a showing, the majority simply overrides our well established rule that prejudice as to the result need not, indeed cannot, be shown in jury composition cases. By doing so, it renders it virtually impossible for any defendant to vindicate his right to due process if his attorney has committed a procedural default in such a case.");
132. Williams v. Woodford, 396 F.3d 1059, 1069 (9th Cir. 2005) (Rawlinson, J., dissenting from denial of rehearing en banc) (arguing that Sykes prejudice should be presumed for a Batson claim because it is structural, and also arguing that the petitioner can show actual prejudice from being tried by an allwhite jury).
133. th Cir. 2006) ("[W]e do not hold that a structural error alone is sufficient to warrant a presumption of prejudice in the ineffective assistance of counsel context....");
134. Jackson v. Herring, 42 F.3d 1350, 1361 (11th Cir. 1995) (requiring a showing of actual prejudice where counselfailed to raise a Swain claim); Hollis v. Davis, 941 F.2d 1471, 1479 (11th Cir. 1991) (holding that a requirement of actual prejudice is compelled by Francis v. Henderson).
135. Johnson, 586 F.3d at 449 (Kethledge, J., dissenting). This case is currently back before the Sixth Circuit. Johnson v. Sherry, No. 10-2699 (6th Cir. argued Oct. 27, 2011).
136. Bowersox, 161 F.3d at 1160-61.
137. United States v. Withers, 638 F.3d 1055, 1067 (9th Cir. 2011) ("The Ninth Circuit has not yet decided whether a trial counsel's failure to object to a structural error is presumptively prejudicial for purposes of the Strickland ineffective assistance of counsel inquiry."). Withers involved both a Strickland claim and a substantive public trial claim. The quote above is in reference to the Strickland claim. Because the case involved the review of a federal conviction and arose in a particular procedural posture, the required showing for the substantive public trial claim was only that Withers had a "non-frivolous" argument that he could show cause and prejudice. Thus, while the court did indicate that the structural nature of the error might establish prejudice, it did not issue a holding on the question. Id. At 1064.
138. Vansickel, 166 F.3d at 958.
139. Withers, 638 F.3d at 1067.
140. Jackson v. Herring, 42 F.3d 1350, 1361 (11th Cir. 1995) ("In making this inquiry, we bear in mind that the prejudice prong of Strickland is not co-terminous with the more general prejudice requirement of Wainwright v. Sykes.... Neither is it akin to the 'harmless error' standard of Brecht v. Abrahamson...."). The case never reaches the questio n of Sykes prejudice, finding that it need not address whether an ineffectiveness claim that is itself defaulted can satisfy the cause requirement-a debate beyond the scope of this.
141. Id. at 1362.
142. Bell v. Quintero, 535 U.S. 1109 (2002) (remanding for reconsideration in light of Bell v. Cone, 535 U.S. 685 (2002), which examined Cronic).
143. The three cases explicitly raising this argument are Bell v. Quintero, 544 U.S. 936, 937-38 (2005) (Thomas, J., dissenting) (explaining the Court's remand in its earlier Quintero decision); Purvis v. Crosby, 451 F.3d 734, 738 (11th Cir. 2006); and Virgil v. Dretke, 446 F.3d 598, 607 (5th Cir. 2006). The other three cases requiring a showing of actual prejudice are Bowersox, 161 F.3d at 1160-61; Jackson, 42 F.3d at 1361; and Hollis v. Davis, 941 F.2d 1471, 1479 (11th Cir. 1991).
144. McGurk v. Stenberg, 163 F.3d 470, 473 (8th Cir. 1998).
145. supra note 87.
146. 161 F.3d at 1160-61 ("Otherwise, Young argues, he is forced into the impossible position of showing how the outcome of the trial would have been different in the absence of a structural defect. We cannot accept this position."). The case the court cites for this proposition is Wright v. Nix, 928 F.2d 270, 273 (8th Cir. 1991), which never reached the question of prejudice and opined on the matter only in dicta.
147. Purvis, 451 F.3d at 738 (rejecting a Strickland claim for failure to object to a public trial violation because defendant could not "show that an objection from his counsel would have caused the factfinder to have a reasonable doubt about his guilt"). Vansickel v. White, 166 F.3d 953, 959 (9th Cir. 1999).
148. Id.
149. discussion supra Part I.C.2.
150. 42 F.3d 1350, 1362 (11th Cir. 1995).
151. Ristaino v. Ross, 424 U.S. 589, 595-98 (1976).
152. 941 F.2d 1471, 1482 (11th Cir. 1991).
153. 477 U.S. 478, 488 (1986) (holding that counsel must be constitutionally ineffective to qualify as cause).
154. supra note 87 and accompanying text.
155. supra Part III.B.