Milton Balkany v. United States

1 QUESTIONS FOR REVIEW In McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454 (1991), the Supreme Court held that if a criminal defendant fails to raise a claim at a time when it otherwise should have been raised, and "if he cannot show cause, the failure to earlier raise the claim may nonetheless be excused if he can show that a fundamental miscarriage of justice—the conviction of an innocent person—would result from a failure to entertain the claim." McCleskey, 499 U.S. 478-497. In petitioner's case, the district court refused to address the merits of his ineffective assistance of counsel claims raised in a postconviction motion dealing with petitioner's actual innocence to overcome any alleged procedural default. Does this Court's holding in McCleskey—when applied in the context of Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed. 2d 272 (2012) (procedural default will not bar a federal court from hearing substantial claim of ineffective assistance at trial if default results from ineffective assistance of the prisoner's counsel in the collateral proceeding) and Trevino v. Thaler, 569 U.S. 413, 133 S.Ct. 1911, 1921, 185 L.Ed. 2d 1044 (2013) (clarifying