Jerome Powell v. John Lambert

Jerome Powell appeals the district court’s denial of his petition for habeas corpus brought under 28 U.S.C. § 2254 . The district court held that it could not consider Powell’s claims because they had not been exhausted in state court because of an “independent and adequate” procedural bar in that court. Powell contends on appeal that the state procedural bar is not adequate because it was not “clear, consistently applied, and well-established at the time of [his] purported default.” Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir.1994).

Among other things, the State contends that we should look only to the published opinions of its courts to determine whether a state procedural rule is “clear, consistently applied, and well-established.” We disagree. The Supreme Court has held that state courts must follow a “firmly established and regularly followed state practice ” in order for an asserted procedural bar to be adequate. Ford v. Georgia, 498 U.S. 411, 423-24 , 111 S.Ct. 850 , 112 L.Ed.2d 935 (1991) (emphasis added; internal quotation and citation omitted). We understand the Court’s use of the word “practice” to refer to the state courts’ actual practice, not merely to the practice…