In re Laws

In re Laws (2005-320)

2007 VT 54

[Filed 22-Jun-2007]

       NOTICE: This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2007 VT 54

                                No. 2005-320


  In re Richard Laws                             Supreme Court

                                                 On Appeal from
                                                 Addison Superior Court

                                                 September Term, 2006


  Christina C. Reiss, J.

  Allison N. Fulcher of Martin & Associates, Barre, and Richard Laws, Pro Se,
    Beattyville, Kentucky, for Petitioner-Appellant.

  William H. Sorrell, Attorney General, John Treadwell, Assistant Attorney
    General, Montpelier, and John T. Quinn, Addison County State's Attorney,
    Middlebury, for Respondent-Appellee.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
        
       ¶  1.  BURGESS, J.  Petitioner appeals an order of the superior
  court granting summary judgment in favor of the State on his request for
  post-conviction relief (PCR).  The superior court denied relief, concluding
  that under 13 V.S.A. § 7131 it did not have subject matter jurisdiction. 
  The court also concluded, in the alternative, that all of petitioner's
  claims were barred because he failed to raise them in a prior PCR.  We hold
  that the superior court erred in dismissing the PCR under § 7131 because
  the language the court relied on affects venue only and does not limit a
  court's subject matter jurisdiction over a PCR.  We further hold that
  petitioner may go forward with his claims, even though he did not raise
  them in his first PCR, to the extent he can demonstrate (1) cause for not
  raising the issues previously and (2) prejudice if the issues are not
  heard.  Claims that do not meet this standard, as well as those claims
  actually raised and decided on the merits in connection with petitioner's
  first PCR, are properly barred from relitigation.  Accordingly, we reverse
  the superior court's decision and remand the matter for further proceedings
  consistent with the standard articulated in this opinion.

       ¶  2.  We summarized the facts underlying petitioner's criminal
  convictions in our decision affirming denial of his first PCR:

    The crimes occurred in the late evening of June 19, 1992.  While
    driving from Mad Mountain Tavern in Waitsfield that evening, the
    victim's tires went flat; the evidence suggested that defendant
    himself had punctured her tires.  Defendant pulled up to her
    stopped vehicle and offered her a ride, which the victim accepted. 
    Rather than bring her home, however, defendant drove the victim to
    the Granville Gulf area where he raped her.  After raping her,
    defendant drove the victim to a more remote location and beat her
    severely with a blunt instrument.  The victim left behind a large
    deposit of blood with head hair that the police later discovered
    during their investigation.  The victim's injuries were life
    threatening and included a fractured skull. 

  In re Laws, 2004-118, slip op. at 1 (Vt. Sept. 29, 2004) (unreported mem.). 
  Based on these facts, petitioner was charged with kidnapping, aggravated
  sexual assault, and aggravated assault.
   
       ¶  3.  There was apparently some initial uncertainty as to whether
  the crime should be prosecuted in Addison or Washington County.  The
  charges were originally filed in Washington County district court, but
  petitioner filed a motion to dismiss, arguing that venue was improper
  because the offenses had not taken place in that county.  See 13 V.S.A. §
  4601 (providing that criminal charges be tried in county where offense was
  committed).  The State conceded the issue, dismissed the charges filed in
  Washington County, and then filed charges in Addison County.  Despite the
  change in venue, however, the Addison County State's Attorney appointed a
  Washington County State's Attorney to prosecute the matter.  Ultimately,
  petitioner entered into a plea agreement that was signed by petitioner, his
  attorney, and the Washington County State's Attorney (acting on behalf of
  Addison County).  The plea agreement was entered in Washington County
  district court, and it was the Washington County district court that
  sentenced petitioner to twenty to thirty-five years to serve.  Petitioner
  did not pursue a direct appeal from his conviction or sentence.

       ¶  4.  Petitioner filed his first PCR (FN1) in Washington Superior
  Court in July 2000, asserting that his guilty plea violated double
  jeopardy.  The superior court entered judgment in favor of the State,
  concluding that petitioner's voluntary plea waived any double jeopardy
  claim.  This Court affirmed on appeal.  See In re Laws, No. 2004-118, slip
  op. at 1-2 (Vt. Sept. 29, 2004) (unreported mem.).
                                             
       ¶  5.  Petitioner then filed a second PCR in Addison Superior Court
  in October 2004, arguing: (1) the plea agreement violated double jeopardy;
  (2) the Washington County district court lacked jurisdiction to accept the
  plea agreement; (3) the Washington County State's Attorney lacked the
  authority to sign the plea agreement; (4) the plea colloquy did not meet
  the requirements of Vermont Rule of Criminal Procedure 11(f); and (5)
  petitioner's attorney provided ineffective assistance.  The State moved for
  summary judgment on the merits of these claims, but also argued that the
  superior court did not need to decide the PCR on the merits because it was
  a second or successive petition barred by 13 V.S.A. § 7134.  The superior
  court entered judgment for the State, concluding that it did not have
  jurisdiction over the PCR under 13 V.S.A. § 7131, and, alternatively, that
  it was not obligated to hear the PCR because it was a second or successive
  petition.  Petitioner appealed.

                                     I.

       ¶  6.  In his pro se appellate brief, petitioner reiterates his
  argument on the merits of his claim that the Washington County district
  court lacked jurisdiction to accept his plea in the underlying criminal
  proceeding.  He also asserts in passing that the plea colloquy did not
  comply with Rule 11(f).  Petitioner does not address the superior court's
  conclusion that it lacked jurisdiction over the PCR, or the alternative
  ground that the claims failed under the bar against second or successive
  PCRs.  The State, in turn, responds to petitioner's merits-based argument,
  only briefly reiterating the § 7134 argument.

       ¶  7.  Dismissing the PCR, the superior court did not engage the
  merits of petitioner's claims.  Rather, the court concluded that it lacked
  jurisdiction to consider the PCR, relying on the language of 13 V.S.A. §
  7131, which provides:

     A prisoner who is in custody under sentence of a court and claims
    the right to be released upon the ground that the sentence was
    imposed in violation of the constitution or laws of the United
    States, or of the state of Vermont, or that the court was without
    jurisdiction to impose the sentence, or that the sentence was in
    excess of the maximum authorized by law, or is otherwise subject
    to collateral attack, may at any time move the superior court of
    the county where the sentence was imposed to vacate, set aside or
    correct the sentence.

  (Emphasis added.)  While it is true that the post-conviction-relief statute
  requires that a defendant seek relief in "the superior court of the county
  where the sentence was imposed," id., we have previously explained that
  this provision goes to venue and not subject matter jurisdiction:
   
    Section 7131 . . . does not concern subject-matter jurisdiction of
    the court in which the PCR petition is heard.  The statute
    indicating the county where the PCR should be brought was enacted
    to simplify the often cumbersome procedures associated with habeas
    corpus.  Requiring the superior court of the county of sentencing
    to hear the PCR petition was designed to provide a more convenient
    forum for obtaining relevant records and witnesses.  As a venue
    provision, the statute does not purport to limit subject-matter
    jurisdiction.

  In re Hanson, 160 Vt. 111, 113, 623 A.2d 466, 467 (1993) (citations and
  quotations omitted). Accordingly, while a party may seek to transfer venue
  under the authority of the statute, the superior court erred in concluding
  that it was without jurisdiction to hear defendant's petition.

                                     II.

       ¶  8.  The superior court provided an alternative basis for granting
  summary judgment to the State, noting that under 13 V.S.A. § 7134 the court
  was "not required to entertain a second or successive motion for similar
  relief on behalf of the same prisoner."  The court determined, based on
  State v. Provencher, that the bar against second or successive petitions
  applied to "questions which the applicant knew of, but deliberately, or
  without adequate excuse, failed to raise either in the proceeding which led
  to his conviction or in prior post-conviction proceedings."  128 Vt. 586,
  591-92, 270 A.2d 147, 150 (1970) (Holden, J., concurring, with all members
  of the Court in accord).  The superior court did not, however, make any
  findings to support its conclusion that petitioner "deliberately, or
  without adequate excuse" abandoned his claims, and so a remand for further
  findings is required.
   
       ¶  9.  We take this opportunity to elaborate on the standard the
  superior court should apply on remand. (FN2)  Some background on
  post-conviction relief and the bar against second or successive petitions
  will properly frame the issues presented to us in this appeal.  The purpose
  of post-conviction relief under 13 V.S.A. § 7131 is to provide prisoners
  with an opportunity to challenge the legality of their confinement, and
  thus "to guard against illegal restraints on liberty."  In re Stewart, 140
  Vt. 351, 359, 438 A.2d 1106, 1109 (1981).  One fundamental aspect of
  post-conviction relief is that a challenge to confinement may be brought
  "at any time."  13 V.S.A. § 7131.  Nonetheless, in other respects,
  "[p]ost-conviction relief is a limited remedy."  In re Grega, 2003 VT 77, ¶
  6, 175 Vt. 631, 833 A.2d 872 (mem.).  Post-conviction-relief proceedings
  are not a vehicle for addressing the petitioner's guilt or innocence, nor
  are they a substitute for direct appeal of a conviction or sentence. 
  Stewart, 140 Vt. at 360, 438 A.2d  at 1110.  Rather, claims for PCR are
  limited to collateral attacks on the petitioner's conviction.  For example,
  a PCR may raise ineffective assistance of counsel, a constitutional
  challenge to the statute under which the petitioner was convicted or
  sentenced, or the adequacy of a Rule 11 plea colloquy.  In forwarding such
  arguments, "the petitioner has the substantial burden of proving by a
  preponderance of the evidence that fundamental errors rendered his
  conviction defective."  Grega, 2003 VT 77, ¶ 6 (citation and quotation
  omitted).

       ¶  10.  There are also procedural limitations on the issues that may
  be raised in a PCR.  A PCR may not raise an issue that was litigated in the
  criminal trial but deliberately bypassed on direct appeal.  Stewart, 140
  Vt. at 361, 438 A.2d  at 1110 (holding that doctrine of laches is not
  applicable to PCR proceedings but further holding that an issue is barred
  from consideration in PCR if issue was deliberately bypassed on direct
  appeal). (FN3)  Further, § 7134 provides that a court is "not required to
  entertain a second or successive motion for similar relief on behalf of the
  same prisoner."
                
       ¶  11.  There have been but a few occasions to consider the scope of
  the § 7134 limitation.  See In re Reuschel, 141 Vt. 200, 203, 446 A.2d 343,
  344 (1982) (Underwood, J., concurring) (second PCR properly dismissed where
  it was a "thinly disguised rehash of the first"); In re Mayer, 131 Vt. 248,
  250-51, 303 A.2d 803, 804 (1973) (second PCR could have been denied under §
  7134 where petitioner "had every opportunity to challenge his . . .
  conviction through his appeal, his various motions for post-conviction
  relief and his motions to the Federal Court"); Garceau v. State, 126 Vt.
  516, 520, 236 A.2d 661, 664 (1967) (dismissal under § 7134 justified where
  merits of claims had been "thoroughly presented and litigated with the
  assistance of . . . counsel in a full evidentiary hearing").  In addition,
  in a succinct opinion, we cited United States Supreme Court precedent -  
  rather than our § 7134 - for the proposition that 

    a court is not required to entertain a second or successive motion
    for post-conviction relief if: the same ground was determined
    adversely to the petitioner in an earlier petition, the prior
    determination was on the merits, and the ends of justice would not
    be served by reaching the merits of the subsequent application.

  In re Currier, 147 Vt. 645, 645, 513 A.2d 41, 41 (1986) (mem.) (citing
  Sanders v. United States, 373 U.S. 1, 15 (1963)).  From these cases, it is
  clear that § 7134 bars relitigation of claims actually raised and decided
  on the merits in an earlier PCR.  What is less clear, however, is the
  extent to which § 7134 bars a second PCR based on different grounds, and
  whether it matters that the petitioner could have raised those grounds in
  the earlier PCR, but failed to do so.
   
       ¶  12.  This is the question left unresolved in Provencher when the
  Court faced a situation similar to that presented here.  The petitioner in
  Provencher had entered a guilty plea from which he did not pursue a direct
  appeal, and he had also filed an earlier PCR which was denied on the
  merits.  128 Vt. at 586, 270 A.2d  at 148.  We noted that § 7134 barred any
  "second or successive [PCR] motion for similar relief," and that under
  those terms, petitioner's second PCR was precluded because it sought
  "similar relief" - that is, like the first PCR, the second PCR sought to
  have the petitioner's conviction set aside and his sentence vacated.  Id.
  at 587-88, 270 A.2d  at 148.  Nonetheless, without extensive explanation, we
  considered the merits of petitioner's argument because it presented
  different grounds for relief than claimed in his first PCR, but we
  ultimately ruled that "respondent has failed to show in his second petition
  for relief from confinement anything that he could not have raised in his
  first petition for such relief."  Id. at 590.  In a concurring opinion
  joined by the majority, Justice Holden observed in dicta that § 7134

    does not mean that the first application bars, with total
    finality, all grounds that otherwise might justify post-conviction
    relief.  Only those factual or legal contentions actually
    adjudicated or questions which the applicant knew of, but
    deliberately, or without adequate excuse, failed to raise either
    in the proceeding which led to his conviction or in prior
    post-conviction proceedings are foreclosed.

  Id. at 591-92, 270 A.2d  at 150.

       ¶  13.  Justice Holden based his statement on the United States
  Supreme Court's decision in Sanders v. United States, 373 U.S. 1 (1963). 
  In that case, the Court interpreted 28 U.S.C. § 2255 - the federal
  counterpart to Vermont's § 7134 - which provided that a court "shall not be
  required to entertain a second or successive motion for similar relief on
  behalf of the same prisoner." (FN4)  Act of June 25, 1948, ch. 646, 62
  Stat. 967; see Provencher, 128 Vt. at 590, 270 A.2d  at 150 (Holden, J.,
  concurring) ("The federal post-conviction statute contains substantially
  the same language used in [Vermont's] section 7134.").  The question before
  the Sanders Court was the extent to which this provision limited a
  prisoner's ability to have a second or successive petition heard on the
  merits.  At the outset, the Court concluded that the language of the
  provision could not be interpreted literally - that is, as barring all
  efforts to obtain "similar relief" - because this would categorically bar
  all subsequent petitions regardless of the grounds on which they were
  advanced.  Sanders, 373 U.S.  at 13.  This, in turn, could
  unconstitutionally deprive a prisoner of the remedy of habeas corpus.  Id.
  at 13-14.

       ¶  14.  The Sanders Court noted that prisoners were historically
  afforded broad access to successive petitions.  Ordinarily, the doctrine of
  res judicata precludes a litigant from raising a claim that was or could
  have been fully litigated in a prior judicial proceeding.  See In re St.
  Mary's Church Cell Tower, 2006 VT 103, ¶ 3, __ Vt. __, 910 A.2d 925 (mem.). 
  Res judicata, however, has traditionally not been applied to habeas corpus
  relief in part because, at common law, there was no opportunity to appeal
  the denial of a habeas corpus application, and therefore successive
  petitions substituted for appellate review.  Sanders, 373 U.S.  at 7-8. 
  There was also a more fundamental reason for not applying the doctrine to
  habeas corpus relief: namely, the nature of the writ as the last resort for
  challenging the exercise of governmental power.  Id. at 8 ("If government
  is always to be accountable to the judiciary for a man's imprisonment,
  access to the courts on habeas must not be . . . impeded [by operation of
  res judicata].  The inapplicability of res judicata to habeas, then, is
  inherent in the very role and function of the writ." (citation, quotation,
  and alteration omitted)).
    
       ¶  15.  Absent any reasonable procedural limits, however, successive
  motions on different grounds, previously known but not previously asserted,
  could endlessly strain judicial resources to the point of abuse.  The
  Sanders Court examined its prior habeas corpus decisions that, while
  failing to set forth a rule to be applied in other cases, nonetheless
  "identified situations where denial without hearing is proper even though a
  second or successive application states a claim for relief."  Id.  From
  review of these cases, the Court concluded that "the judicial and statutory
  evolution of the principles governing successive applications for federal
  habeas corpus and motions under [the federal] § 2255 has reached the point
  at which the formulation of basic rules to guide the lower federal courts
  is both feasible and desirable."  Id. at 15. 

      
       ¶  16.  The rules developed by the Court were as follows.  First, the
  Court defined the circumstances under which previously litigated claims
  could be barred:

     Controlling weight may be given to denial of a prior application
    for federal habeas corpus or § 2255 relief only if (1) the same
    ground presented in the subsequent application was determined
    adversely to the applicant on the prior application, (2) the prior
    determination was on the merits, and (3) the ends of justice would
    not be served by reaching the merits of the subsequent
    application.

  Id. (footnote omitted).  Second, the Court identified the concept of "abuse
  of the writ":

     No matter how many prior applications for federal collateral
    relief a prisoner has made, the principle elaborated [above]
    cannot apply if a different ground is presented by the new
    application.  So too, it cannot apply if the same ground was
    earlier presented but not adjudicated on the merits.  In either
    case, full consideration of the merits of the new application can
    be avoided only if there has been an abuse of the writ or motion
    remedy; and this the Government has the burden of pleading.

  Id. at 17.  The Court offered as an example a situation where "a prisoner
  deliberately withholds one of two grounds for federal collateral relief at
  the time of filing his first application, in the hope of being granted two
  hearings rather than one."  Id. at 18.  While the right to habeas corpus
  relief requires that prisoners have an adequate opportunity to challenge
  the legality of their incarceration, "[n]othing in the traditions of habeas
  corpus requires the federal courts to tolerate needless piecemeal
  litigation, to entertain collateral proceedings whose only purpose is to
  vex, harass, or delay."  Id.
   
       ¶  17.  Beyond these statements, however, the Sanders Court declined
  to elaborate a specific test for when a second or successive petition
  should be considered an abuse of the writ.  Both  petitioner and the State
  posit that the appropriate standard is set forth in McCleskey v. Zant, 499 U.S. 467 (1991).  In McCleskey, the Court revisited the issue of "writ
  abuse," recognized, but unresolved, by Sanders:

    [m]uch confusion exists . . . on the standard for determining when
    a petitioner abuses the writ.  Although the standard is central to
    the proper determination of many federal habeas corpus actions, we
    have had little occasion to define it.  Indeed, there is truth to
    the observation that we have defined abuse of the wit in an
    oblique way, through dicta and denials of certiorari petitions or
    stay applications. 

  Id. at 477.

       ¶  18.  In McCleskey, the Court sought "to define the doctrine of
  abuse of the writ with more precision."  Id. at 489.  While Sanders
  provided the example of claims deliberately withheld by a petitioner,
  McCleskey acknowledged that "[a]buse of the writ is not confined to
  instances of deliberate abandonment [of a claim]."  Id.  Thus, McCleskey
  held that "a petitioner can abuse the writ by raising a claim in a
  subsequent petition that he could have raised in his first, regardless of
  whether the failure to raise it earlier stemmed from a deliberate choice." 
  Id.

       ¶  19.  To identify exactly what conduct this standard would
  encompass, the Court imported a standard from a different aspect of habeas
  corpus litigation: the bar against federal courts considering claims that
  were procedurally defaulted in state court - referred to as "inexcusable
  neglect."  The Court found this standard appropriate because the two
  situations present the same reasons for disallowing the defaulted claim:
  "[B]oth the abuse-of-the-writ doctrine and our procedural default
  jurisprudence concentrate on a petitioner's acts to determine whether he
  has a legitimate excuse for failing to raise a claim at the appropriate
  time."  Id. at 490.
   
       ¶  20.  The "inexcusable neglect" standard requires a petitioner to
  show two elements: cause and prejudice.  Id. at 493.  "[T]he cause standard
  requires the petitioner to show that some objective factor external to the
  defense impeded counsel's efforts to raise the claim" in the earlier
  proceeding. (FN5) Id. (citation and quotation omitted).  Examples include
  situations where a factual or legal basis for a claim was not available at
  the time of the earlier proceeding, instances of official interference
  (such as the state's failure to provide requested evidence), or ineffective
  assistance of counsel.  Id. at 493-94.  After demonstrating cause for the
  default, the petitioner must show that actual prejudice resulted.  Id. at
  494.  To demonstrate actual prejudice, the petitioner must show "not merely
  that the error[s] at his trial created a possibility of prejudice, but that
  they worked to his actual and substantial disadvantage, infecting his
  entire trial with error of constitutional dimensions."  United States v.
  Frady, 456 U.S. 152, 170 (1982).

       ¶  21.  The McCleskey Court further clarified the burden of proof for
  abuse of the writ, holding that when a petitioner files a second or
  subsequent petition, 

    the government bears the burden of pleading abuse of the writ. 
    The government satisfies this burden if, with clarity and
    particularity, it notes petitioner's prior writ history,
    identifies the claims that appear for the first time, and alleges
    that petitioner has abused the writ.  The burden to disprove abuse
    then becomes petitioner's. . . . The petitioner's opportunity to
    meet the burden of cause and prejudice will not include an
    evidentiary hearing if the district court determines as a matter
    of law that petitioner cannot satisfy the standard.

  McCleskey, 499 U.S.  at 494. 

       ¶  22.  We agree with the parties that is this is the proper test and
  adopt it today.  The critical elements are as follows.  First, the
  government has the burden of pleading abuse of the writ with the level of
  specificity described in McCleskey.  Second, the burden then shifts to the
  petitioner to show cause and actual prejudice.  Third, in dismissing a PCR
  on this basis, the superior court must make findings on the issues of cause
  and actual prejudice.  Because the record in the instant case was not
  developed in light of this standard, we reverse the dismissal of
  petitioner's PCR and remand the matter so that the State may affirmatively
  plead abuse of the writ.  Petitioner may then respond to the specific
  allegations, and the superior court can make findings as may be supported
  by the pleadings and evidence.  See, e.g., Turner v. Duncan, 158 F.3d 449,
  455 (9th Cir. 1998) (whether cause and prejudice exist for purposes of
  pre-AEDPA abuse-of-the-writ standard ordinarily involves fact issues).
  (FN6)
     
       ¶  23.  Two additional matters raised here warrant comment prior to
  remand, for the sake of judicial efficiency.  First, to the extent that
  petitioner's double jeopardy claim is premised on the same ground as the
  double jeopardy claim presented in his prior PCR, it can be properly
  dismissed under § 7134.  Second, if the superior court reaches the merits
  of petitioner's argument that the Washington County district court lacked
  jurisdiction to accept his guilty plea, the issue is governed by 4 V.S.A. §
  436, which creates "[o]ne district court having statewide jurisdiction."

       Reversed and remanded.



                 FOR THE COURT:



       _______________________________________
  Associate Justice


------------------------------------------------------------------------------
                                  Footnotes


FN1.  Petitioner, in a "Motion in Opposition to the Court's Order for
  Supplemental Briefing," notes that his prior petition was described by this
  Court as a petition for "habeas corpus relief" and not as a PCR petition. 
  In re Laws, No. 2004-118, slip op. at 1 (Vt. Sept. 29, 2004) (unreported
  mem.).  He argues that the current petition is therefore his first PCR
  petition and should not be subject to the rules of successive petitions. 
  However, the PCR statutes in Title 13 are merely a venue device and are not
  intended to affect the availability of habeas corpus relief.  Shuttle v.
  Patrissi, 158 Vt. 127, 130 n.1, 605 A.2d 845, 847 n.1 (1992).  Furthermore,
  as discussed infra, ¶¶ 13-22, the federal case law on which we rely
  makes no distinction between previous petitions brought in accordance with
  PCR statutes and general habeas corpus petitions when considering
  successive petitions.  See Sanders v. United States, 373 U.S. 1, 15 (1963)
  (holding that "controlling weight may be given to denial of a prior
  application for federal habeas corpus or § 2255 [federal PCR statute]
  relief" in certain circumstances to deny successive petitions)

FN2.  Neither petitioner nor the State adequately addressed this ground for
  denying relief in the first round of briefing.  Accordingly, we appointed
  counsel for petitioner and requested supplemental briefing on the extent to
  which petitioner's claims were barred under § 7134 and the standard
  articulated by Justice Holden in his concurrence in Provencher.

FN3.  By contrast, issues not raised at trial and preserved for appeal are
  allowed under this doctrine.  In re Carter, 2004 VT 21, ¶ 10, 176 Vt.
  322, 848 A.2d 281.

FN4.  In 1996, Congress significantly amended § 2255 with the Antiterrorism
  and Effective Death Penalty Act (AEDPA) to restrict the availability of
  second and successive PCR petitions under federal law.  Pub. L. No.
  104-132, § 105, 110 Stat. 1220.  Because our § 7134 retains the language
  that was present in the prior version of the federal statute, to the extent
  we rely on federal case law, we look to those decisions interpreting the
  pre-AEDPA version of § 2255.

FN5.  The Court noted that there is a separate category of cases where a
  showing of cause is not required: those "extraordinary instances when a
  constitutional violation probably has caused the conviction of one innocent
  of the crime."  McCleskey, 499 U.S.  at 494.

FN6.  The State contends it sufficiently pleaded abuse of the writ to put
  petitioner on notice and allow him the opportunity to respond.  The State's
  argument in its motion for summary judgment is not sufficiently detailed as
  required by the McCleskey standard quoted above.