Tuesday, January 18, 2011

IAC as cause for procedural default must itself be exhausted

Hatcher v. Johnson, No. 3:10cv08, 2011 WL 102718 (E.D. Va. Jan. 10, 2011)

Hatcher cannot rely on ineffective assistance of counsel to excuse his default. A claim of ineffective assistance of counsel as cause for the procedural default of another claim “is itself an independent constitutional claim.” Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Therefore, a claim of ineffective assistance of counsel as cause for a second constitutional claim must be exhausted, or it may be procedurally defaulted itself. Id. at 453. Hatcher has not properly presented any ineffective assistance of counsel claim to the Supreme Court of Virginia. Were Hatcher to attempt to do so now, the Supreme Court of Virginia would find the claim barred by Section 8.01-654(B)(2) of the Virginia Code. Accordingly, Hatcher's has not shown cause, and his claims are procedurally defaulted.

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