Issues as Defined by Certificate of Appealability
Holmes’s failure to brief on appeal the merits of his constitutional claims did not waive them, because the order granting certificate of appealability “invited the parties only to brief the [threshold] procedural issue” of whether the claims had been defaulted in state court.
Even were the government correct that the certificate of appealability is defective for failure to require the parties to brief the constitutional issues, “[a] litigant whose lawyer is misled by the language of a judicial order should not suffer ill consequences.” Beyer v. Litscher, 306 F.3d 504, 507 (7th Cir. 2002). And in any event, the certificate of appealability is not defective. … The cases the government cites for the proposition that Holmes was additionally required to address his constitutional claims either: (1) involve certificates of appealability that, unlike the one in this case, instructed the petitioner to address those claims … or (2) excused the petitioner’s failure to brief the constitutional issues.
More generally, in the typical case where we find an issue waived, there is no prior finding that the issue has “substantial” merit, and to rule on the unbriefed issue would be to engage in a form of judicial activism contrary to our normal mode of operation. …
Procedural Default – Cause and Prejudice
The state court’s clear reliance on Holmes’s procedural default to reject his claim requires that he show “cause and prejudice” in order to obtain federal review.
… The test to avoid procedural default in federal court is whether the state court’s decision rests on the substantive claims primarily, that is, whether there is no procedural ruling that is independent. Moore, 295 F.3d at 774 (citing Coleman v. Thompson, 501 U.S. 722, 735 (1991)). Here, the state court’s procedural ruling was primary, and a fortiori independent. Thus, the district court decided correctly that Holmes procedurally defaulted his claim in federal court.
He can show neither “cause” (because he admitted he could have raised the issue earlier in state court) nor “actual innocence,” an alternative means to avert default for various fact-specific reasons (including failure to otherwise explain “a report from Cellmark Diagnostics about blood and DNA that, if anything, only confirms Holmes’ guilt”).