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No.96-7901. Argued November 10, 1997-Decided December 9,1997

In upholding the District Court's refusal to issue a writ of habeas corpus vacating petitioner Trest's Louisiana prison sentence, the Fifth Circuit stated its belief that a state court would refuse to consider Trest's federal claims as untimely, and that this "procedural default" was an adequate and independent state ground for denying him relief. In his petition for certiorari, Trest pointed out that the Fifth Circuit had raised and decided the "procedural default" question sua sponte, and that language in the court's opinion suggested that it had thought that, once it had noticed the possibility of a procedural default, it was required to raise the matter on its own.

Held: A court of appeals is not "required" to raise the issue of procedural default sua sponte. Pp. 89-92.

(a) In the habeas context, procedural default is normally a "defense" that the State is "obligated to raise" and "preserv[e]" if it is not to "lose the right to assert the defense thereafter." Gray v. Netherland, 518 U. S. 152, 166. This Court is unaware of any precedent stating that a habeas court must raise such a matter where the State itself does not do so. Pp. 89-90.

(b) This is not an appropriate case in which to examine whether the law nonetheless permitted the Fifth Circuit to raise the procedural default sua sponte. First, its opinion contains language suggesting it believed that, despite Louisiana's failure to raise the matter, Circuit precedent required, not simply permitted, it to consider a potential procedural default. Second, Trest made clear in his certiorari petition that he intended to limit the question to mandatory consideration, and Louisiana in its response did not object, suggest alternate wording, or ask this Court to consider the question in any broader context. Third, the broader question cannot be easily answered in the context of this case, for this Court is uncertain about matters which arguably are relevant to the question whether the law permitted the Fifth Circuit to raise a procedural default sua sponte: questions about the exhaustion of Trest's federal claims in state court and about the relevant procedural rules to be applied. The parties might have considered these questions, and the Fifth Circuit might have determined their relevance or their answers,cralaw


had that court not decided the procedural default question without giving the parties an opportunity for argument. pp. 90-92.

94 F.3d 1005, vacated and remanded.

BREYER, J., delivered the opinion for a unanimous Court.

Rebecca L. Hudsmith argued the cause and filed briefs for petitioner.

Kathleen E. Petersen, Assistant Attorney General of Louisiana, argued the cause for respondent. With her on the brief were Richard P. Ieyoub, Attorney General, and Mary Ellen Hunley, Assistant Attorney General. *

JUSTICE BREYER delivered the opinion of the Court.

The petitioner in this case, Richard Trest, seeks a writ of habeas corpus, which would vacate a long sentence that he is serving in a Louisiana prison for armed robbery. The District Court refused to issue the writ. Trest appealed to the Court of Appeals for the Fifth Circuit, which ruled against him on the ground of "procedural default." Trest v. Whitley, 94 F.3d 1005, 1007 (1996). The Fifth Circuit believed that Trest had failed to raise his federal claims on time in state court, that a state court would now refuse to consider his claims for that reason, and that this state procedural reason amounted to an adequate and independent state ground for denying Trest relief. Hence, in the absence of special circumstances, a federal habeas court could not reach the merits of Trest's federal claims. Id., at 1007-1009; see

* Edward M. Chikofsky and Barbara E. Bergman filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.

A brief of amici curiae urging affirmance was filed for the State of Mississippi et al. by Mike Moore, Attorney General of Mississippi, Marvin L. White, Jr., Assistant Attorney General, and Jeffrey A. Klingfuss, Special Assistant Attorney General, Robert A. Butterworth, Attorney General of Florida, Joseph P. Mazurek, Attorney General of Montana, and Frankie Sue Del Papa, Attorney General of Nevada.cralaw

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