                             RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                         File Name: 14a0307p.06

                     UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT
                                       _________________


 TERRY CLIFTON,                                             ┐
                                  Petitioner-Appellant,     │
                                                            │
                                                            │        No. 13-5402
            v.                                              │
                                                             >
                                                            │
 WAYNE CARPENTER, Warden,                                   │
                                  Respondent-Appellee.      │
                                                            ┘
                          Appeal from the United States District Court
                        for the Western District of Tennessee at Jackson.
                       No. 1:11-cv-01347—J. Daniel Breen, District Judge.
                                      Argued: August 8, 2014
                              Decided and Filed: December 24, 2014

     Before: ROGERS and GRIFFIN, Circuit Judges; VAN TATENHOVE, District Judge.

                                        _________________

                                             COUNSEL

ARGUED: D. Bruce La Pierre, WASHINGTON UNIVERSITY SCHOOL OF LAW, St. Louis,
Missouri, for Appellant. John H. Bledsoe, OFFICE OF THE TENNESSEE ATTORNEY
GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: D. Bruce La Pierre,
WASHINGTON UNIVERSITY SCHOOL OF LAW, St. Louis, Missouri, Brian C. Walsh,
BRYAN CAVE LLP, St. Louis, Missouri, for Appellant. John H. Bledsoe, OFFICE OF THE
TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.




        
        The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District of
Kentucky, sitting by designation.




                                                   1
No. 13-5402                          Clifton v. Carpenter                        Page 2

                                      _________________

                                           OPINION
                                      _________________

       GREGORY F. VAN TATENHOVE, District Judge. Terry               Clifton’s    habeas   corpus
petition was denied because he failed to file his appeal in the Davidson County Chancery Court
within the sixty-day period allowed for filing such appeals. Clifton attempted to file during that
timeframe, but the clerk returned it unfiled because of unpaid court costs from a previous matter.
Tennessee Code § 41-21-812 prohibits court clerks from filing claims while inmates have court
costs and fees outstanding. Consequently, the district court dismissed Clifton’s habeas corpus
claim on the basis that Clifton had procedurally defaulted.

       Clifton now appeals this finding, arguing that he was deprived of a state-authorized
parole revocation appeal due to his indigence and inability to pay court costs. The question
before us is whether Tennessee may constitutionally require that “prior fees, taxes, costs and
other expenses [be] paid in full” before permitting a prisoner to file a habeas corpus petition
challenging the constitutionality of his probation revocation proceedings. Tenn. Code Ann. § 41-
21-812. Because the answer to this question is no, the case will be REMANDED for further
proceedings.

                                                 I

       In 1983, Terry Clifton was convicted of grand larceny, found to be a habitual criminal,
and sentenced to life in prison. Twenty-seven years later, in March of 2010, Clifton was paroled.
After Clifton had been released, Tennessee’s Appellate Court Cost center sent Clifton an invoice
for $124.10 in outstanding court costs. Clifton attempted to make a payment on this debt and
contacted the Center to establish a payment plan.

       Clifton’s parole was short-lived.     Only a few months later, on July 23, 2010, the
Tennessee Board of Probation and Parole issued an arrest warrant based on allegations that
Clifton had violated his conditions of parole by engaging in “intimidating and threatening
behavior.” After holding a hearing, the parole board recommended that Clifton’s parole be
No. 13-5402                                 Clifton v. Carpenter                                Page 3

revoked. Clifton appealed the decision to the Parole Hearings Director but his appeal was
denied.

          In compliance with Tennessee Code §§ 27-9-101 and 102, Clifton next filed a petition for
a writ of certiorari1 in the Davidson County Chancery Court. Although the petition was timely
filed, the court clerk refused to file it because Clifton had unpaid court costs. Clifton attempted
to appeal this decision to the Tennessee Court of Appeals, but his notice of appeal was also
returned unfiled by the chancery court for the same reason. In a letter to Clifton, the clerk
explained that the clerk could not file Clifton’s petition because of outstanding and unpaid court
costs totaling $1,449.15.

          The clerk’s decision to return Clifton’s petition and notice of appeal unfiled was in
compliance with a Standing Order of the chancery court, a copy of which was enclosed with the
letter, that directed the clerk “not to file another claim received by this office from an inmate
until prior fees, taxes, costs and other expenses assessed to the inmate are paid in full.” [R.1,
Chancery Court Standing Order, Page ID#49.] Included in the Standing Order was the full text
of the Tennessee statute:

          (a) Except as provided by subsection (b), on notice of assessment of any fees,
          taxes, costs and expenses under this part, a clerk of a court may not accept for
          filing another claim by the same inmate until prior fees, taxes, costs and other
          expenses are paid in full.
          (b) A court may allow an inmate who has not paid any costs or expenses assessed
          against the inmate to file a claim for injunctive relief seeking to enjoin an act or
          failure to act that creates a substantial threat of irreparable injury or serious
          physical harm to the inmate.

Tenn. Code Ann. § 41-21-812.

          On October 28, 2011, Clifton filed pro se a petition for a writ of habeas corpus, alleging
that his constitutional rights to due process and equal protection were violated during his parole
revocation proceeding.2 Clifton also filed a motion seeking to be excused from filing his petition

          1
            Clifton’s petition was actually titled a “Motion for an Order of Waiver of Exhaustion” but it was construed
as a petition for writ of certiorari.
          2
            Clifton’s petition was filed pursuant to 28 U.S.C. § 2241 although the district court construed it as a
28 U.S.C. § 2254 petition.
No. 13-5402                                 Clifton v. Carpenter                               Page 4

for a writ of certiorari in the chancery court. The District Court for the Western District of
Tennessee acknowledged Clifton’s contention that he was unfairly prevented from filing his
appeal to the Davidson County Chancery Court because of his failure to pay outstanding fees,
but concluded that the claims were procedurally defaulted as Clifton had failed to file his appeal
in the Chancery Court within the sixty-day period for filing such appeals. The court also
concluded that Clifton had not established “cause” and “prejudice” to overcome the procedural
default.

                                                         II

                                                         A

         “Due to longstanding policies of comity and respect between state and federal courts, a
habeas petitioner must give state courts the first opportunity to consider and rule upon the federal
claims the prisoner wishes to use to attack his state court conviction.” Pudelski v. Wilson, 576
F.3d 595, 605 (6th Cir. 2009) (citing Picard v. Connor, 404 U.S. 270, 275 (1971)). Consistent
with these principles, a federal court will not consider a petition for habeas unless the petitioner
has sufficiently exhausted his state court remedies.                   28 U.S.C. § 2254(b)(1)(A) (2012).
Normally, when a petitioner fails “to fairly present federal claims to the state courts, and a state
procedural rule . . . prohibits the state court from considering them, the claims are considered
procedurally defaulted.” Pudelski, 576 F.3d at 605 (citing Martin v. Mitchell, 280 F.3d 594, 603
(6th Cir. 2002)).3

         This Court undertakes a four-part inquiry to determine whether a habeas petitioner
procedurally defaulted on a claim. Such default occurs when:

         (1) the petitioner fails to comply with a state procedural rule; (2) the state courts
         enforce the rule; (3) the state procedural rule is an adequate and independent state
         ground for denying review of a federal constitutional claim; and (4) the petitioner
         cannot show cause and prejudice excusing the default.



         3
          “Whether a petitioner’s federal habeas claim is barred by procedural default is a question of law reviewed
de novo.” Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013), cert. denied, 134 S. Ct. 693 (2013) (citing Abela v.
Martin, 380 F.3d 915, 922 (6th Cir. 2004)). The district court’s factual findings are reviewed under the clearly
erroneous standard. Cvijetinovic v. Eberlin, 617 F.3d 833, 836 (6th Cir. 2010).
No. 13-5402                           Clifton v. Carpenter                        Page 5

Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010) (citations omitted). This case hinges on
the question of whether the “state procedural rule is an adequate and independent state ground
for denying review of a federal constitutional claim.” Id. at 290.

       The district court’s procedural default finding rested on the fact that Clifton “did not
follow the [state] court rules in filing his appeal with the Davidson County Chancery Court.” [R.
38, Dismissal Order, PageID#1704.] Based on this finding, the court concluded that he had not
exhausted his remedies in the Tennessee state courts. In its procedural default analysis, despite
noting the applicable standard, the district court did not actually consider whether the Tennessee
statute was an “independent and adequate” state ground. Rather, the district court concluded that
“[w]hether the state court properly refused his appeal for nonpayment of court costs constitute[d]
a state law issue” and that such “[e]rror in the application of state law is not cognizable in federal
habeas proceedings.” [R. 38, Dismissal Order, PageID#1705 (citing Estelle v. McGuire, 502
U.S. 62, 67-68 (1991)).] After concluding that Clifton had procedurally defaulted his claim, the
district court further found that Clifton had not shown “cause” and “actual prejudice” or “a
fundamental miscarriage of justice,” and thereby concluded that he could not overcome the
procedural default. [R. 38, Dismissal Order, PageID#1704.]

                                                  B

       First, Tennessee contends that Clifton may not challenge the constitutionality of
Tennessee Code § 41-21-812 in a habeas corpus action. This misstates the inquiry. Clifton’s
habeas action challenges the constitutionality of the parole board’s decision. The Tennessee
statute is only implicated insofar as it was used to prevent him from filing his appeal which,
ultimately, served as the basis for his procedural default. The question of whether Tennessee
Code § 41-21-812 is adequate is a question to be answered by the federal courts. See Cone v.
Bell, 556 U.S. 449, 465-66 (2009) (internal citations and quotation marks omitted) (“We have
recognized that the adequacy of state procedural bars to the assertion of federal questions . . . is
not within the State’s prerogative finally to decide; rather, adequacy is itself a federal
question.”); see also Lee v. Kemna, 534 U.S. 362, 375 (2002); Coleman v. Thompson, 501 U.S.
722, 736 (1991) (“[F]ederal habeas courts must ascertain for themselves if the petitioner is in
No. 13-5402                          Clifton v. Carpenter                          Page 6

custody pursuant to a state court judgment that rests on independent and adequate state
grounds.”); Douglas v. Alabama, 380 U.S. 415, 422 (1965).

       Whether a state procedural rule is “adequate and independent” generally requires “an
examination of the legitimate state interests behind the procedural rule in light of the federal
interest in considering federal claims.” Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)
(citing Henry v. Mississippi, 379 U.S. 443, 446-48, 485 (1965)). A state law cannot, however,
serve as an “adequate basis for the state court’s decision . . . under the adequate and independent
state ground doctrine” where that basis violates the United States Constitution. Doan v. Brigano,
237 F.3d 722, 727-28 (6th Cir. 2001), overruled on other grounds by Wiggins v. Smith, 539 U.S.
510 (2013).    In Doan, we considered the question of whether an Ohio Rule could be an
“adequate and independent” basis for a state court’s procedural default finding:

       A state court’s decision on a question of state law is adequate to support its
       judgment only if the “state law basis for the decision is sufficient by itself to
       support the judgment, regardless of whether the federal law issue is affirmed or
       reversed.” Erwin Chemerinsky, Federal Jurisdiction § 10.5.2, at 619 (2d ed.1994).
       In this case, however, whether Ohio Evid. R. 606(B) is sufficient to support the
       state court of appeals’s judgment clearly depends upon whether the Rule conflicts
       with the guarantees of the U.S. Constitution. The Supremacy Clause states that
       the “Constitution . . . shall be the supreme Law of the Land; and the Judges in
       every State shall be bound thereby, any Thing in the Constitution or Laws of any
       State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. If Ohio Evid. R.
       606(B) is contrary to the U.S. Constitution, it may not serve as the basis for the
       state court of appeals’s judgment. Thus, “[s]tate law obviously is not adequate to
       support the result when there is a claim that the state law itself violates the United
       States Constitution.” Chemerinsky, supra, § 10.5.2, at 619.

Doan, 237 F.3d at 727-28. This principle was reiterated recently when we recognized that a
court’s review “for constitutional infirmity . . . is circumscribed by deference to ‘a State’s
application of its own firmly established, consistently followed, constitutionally proper
procedural rules.’” Sutton v. Carpenter, 745 F.3d 787, 790 (6th Cir. 2014) (emphasis added)
(citing Trevino v. Thaler, 133 S. Ct. 1911, 1917 (2013)).

       The Tennessee Prisoner Litigation Reform Act is codified at Tennessee Code §§ 41-21-
801 through 41-21-818. This legislation, adopted in 1996 to curb frivolous prisoner litigation,
imposes filing requirements and restrictions on “claim[s] brought by an inmate in general
No. 13-5402                            Clifton v. Carpenter                         Page 7

sessions or a trial level court of record in which an affidavit of inability to pay costs is filed with
the claim by the inmate.” Tenn. Code Ann. § 41-21-802. A “claim” is defined as “any lawsuit
or appeal filed by an inmate except a petition for post-conviction relief.” Id. § 41-21-801(1).
The statute explains that the inmate is “required to pay the full amount of the filing fee” and
includes an explanation of how to devise a payment schedule. Id. § 41-21-807. An inmate’s
initial partial filing fee is twenty percent of the greater of the average monthly (1) deposits to the
inmate’s trust account, or (2) balance in the account for the six-month period preceding the
filing. Id. § 41-21-807(b). Monthly payments then must be made until the filing fee is paid in
full. Id. § 41-21-807(b)(2). At the conclusion of the litigation, any costs incurred by the inmate
must also be paid using the same monthly payment technique. Id. § 41-21-808(a)-(b).

       Most relevant to this case, if an inmate has outstanding “fees, taxes, costs and expenses”
then “a clerk of a court may not accept for filing another claim by the same inmate until prior
fees, taxes, costs and other expenses are paid in full,” except an inmate is permitted “to file a
claim for injunctive relief seeking to enjoin an act or failure to act that creates a substantial threat
of irreparable injury or serious physical harm to the inmate.” Tenn. Code Ann. § 41-21-812.
This prohibition appears to be tempered by Tennessee Code § 41-21-807(b)(4), which provides
that “[i]n no event shall an inmate be prohibited from bringing a civil action or appealing a civil
or criminal judgment for the reason that the inmate has no assets and no means by which to pay
the initial partial filing fee.” Id. § 41-21-807(b)(4). These two provisions are incongruous. This
incompatibility was recognized in Gray v. Tennessee Department of Correction, where the
Tennessee Court of Appeals examined the two provisions and determined that the legislature
intended § 41-21-812 to bar actions until the amount owed is paid. No. E2012–00425–COA–
R3–CV, 2013 WL 5677004, at *4-*6 (Tenn. Ct. App. Oct. 17, 2013) (holding that if there are
court costs owed from a prior matter, the language from Tenn. Code Ann. § 41-21-812 bars the
action until the amount owed has been paid). This effectively nullified the waiver contained in
Tennessee Code § 41-21-807(b)(4).

       Tennessee is not alone in trying to reduce frivolous prisoner litigation and looks to other
states for support. Both parties refer to a statute in Michigan which provides that “[a] prisoner
who has failed to pay outstanding fees and costs . . . shall not commence a new civil action or
No. 13-5402                          Clifton v. Carpenter                       Page 8

appeal until the outstanding fees and costs have been paid.”           Mich. Comp. Laws Ann.
§ 600.2963(8).     Tennessee cites two Michigan cases where prisoners challenged the
constitutionality of that statutory provision but were not granted relief. See Marsh v. Booker,
No. 2:11-CV-13355, 2011 WL 3625070 (E.D. Mich. Aug. 17, 2011); see also Ward v. Howes,
No. 4:06-CV-127, 2007 WL 172515 (W.D. Mich. Jan. 19, 2007). While it is true that the
Petitioners in Marsh and Ward did not win on their arguments attacking § 600.2963(8),
Tennessee’s argument is flawed. In each case the courts were able to avoid the question of the
constitutionality of § 600.2963(8) because the prisoner’s objections, as they were raised, could
not have possibly led to a change in the prisoner’s confinement and, therefore, would not have
been cognizable under 28 U.S.C. § 2254. Marsh, 2011 WL 3625070, at *4; Ward, 2007 WL
172515, at *1. Petitioner points out that the Supreme Court of Michigan has raised questions
about the constitutionality of § 600.2963(8) as it applies to habeas proceedings. See Guzmen v.
Dep’t of Corr., 844 N.W.2d 127 (Mich. 2014) (citing Smith v. Bennett, 365 U.S. 708 (1961))
(applying Mich. Comp. Laws Ann § 600.2963(8) “to bar plaintiff from initiating an application
for leave to appeal from the original complaint for habeas corpus filed in the court of appeals
would violate the Equal Protection Clause of the Fourteenth Amendment”).

       Tennessee also relies heavily on a series of Louisiana Appellate Court decisions that
consider a Louisiana statute which requires cases to be held in abeyance until fees are paid and to
be dismissed if held in abeyance for more than three years. See Rhone v. Ward, 902 So. 2d 1258
(La. Ct. App. 2005), cert. granted, 920 So. 2d 217 (La. 2006); see also Rhone v. Ward, 31 So.
3d 591 (La. Ct. App. 2006), cert. denied, 34 So. 3d 291 (La. 2010).              These cases are
distinguishable. Not only is the statutory scheme different, but the Louisiana courts’ analysis
concentrates primarily on whether the statutory framework is consistent with the protections
guaranteed by the Louisiana Constitution, not the Federal Constitution.

       There can be no doubt that reducing frivolous litigation is a legitimate state objective.
Accepting, however, that the reduction of prisoner litigation is a legitimate aim does not justify
all means of reducing such litigation.         The means of achieving this goal must not
unconstitutionally deprive an indigent defendant access to the courts. The Supreme Court has
long held that procedures which limit an indigent defendant’s access to the courts, where that
No. 13-5402                           Clifton v. Carpenter                        Page 9

limitation could result in a deprivation of liberty, are constitutionally deficient. In Griffin v.
Illinois, 351 U.S. 12 (1956), the Supreme Court held that if a state makes trial transcripts
available to defendants who can afford the transcript, then the state must also provide those
transcripts to defendants who cannot afford them. The Court explained that “[t]here can be no
equal justice where the kind of trial a man gets depends on the amount of money he has.
Destitute defendants must be afforded as adequate appellate review as defendants who have
money enough to buy transcripts.” Id. at 19.

       A few years later in Burns v. Ohio, 360 U.S. 252 (1959), the Supreme Court held that a
criminal defendant’s access to the appellate courts could not be contingent on his ability to pay a
$20.00 filing fee. In Smith v. Bennett, 365 U.S. 708, 709 (1961), the Supreme Court held that
filing fees could not prevent indigent, convicted prisoners from filing habeas corpus petitions.
Importantly, Smith extended indigents’ protections to collateral proceedings which attack the
validity of detention as opposed to simply the correctness of the conviction. Id. In Lane v.
Brown, 372 U.S. 477 (1963), the Court evaluated Indiana’s procedure of providing indigent
prisoners in post-conviction proceedings with trial transcripts. The Supreme Court held that the
Indiana law, which only allowed indigent defendants to procure transcripts for coram nobis
hearings through the Indiana Office of the Public Defender, was unconstitutional and, in so
doing, reiterated that Griffin’s protections apply in collateral proceedings. Id. at 484-85.

       Access to the courts cannot be contingent on wealth. Griffin and its progeny clearly
provide that indigent defendants, whose liberty is on the line, cannot receive less process because
of their pauper status. Smith makes it clear that these protections even apply in collateral
proceedings. Here, Clifton had a liberty interest at stake. See Alkire v. Irving, 330 F.3d 802, 819
(6th Cir. 2003) (recognizing an arrestee’s “Fourteenth Amendment right not to lose his liberty
due to indigency”). If Clifton had had sufficient funds then the Chancery Court would have filed
his notices of appeal. Had Clifton won his appeal then his parole would not have been revoked.

       As it was applied, Tennessee Code § 41-21-812 prevented Clifton from challenging his
probation revocation and unconstitutionally blocked his access to the courts. Thus, it cannot be
considered an “adequate and independent state ground for denying review of a federal
constitutional claim.” Guilmette, 624 F.3d at 290. In the words of this Court,
No. 13-5402                                  Clifton v. Carpenter                               Page 10

         [t]o hold otherwise would allow a state and its courts to evade the requirements of
         the United States Constitution any time they chose to apply a state procedural
         rule, regardless of whether that state rule complied with federal constitutional
         guarantees. The Supremacy Clause forbids a state from using a state rule to trump
         the fundamental requirements of the United States Constitution. U.S. Const. art.
         VI, cl. 2.

Doan, 237 F.3d at 728. Because Tennessee Code § 41-21-812 cannot be considered an adequate
and independent ground for denying review, Clifton did not procedurally default his claim.

                                                          C

         Tennessee argues that the petitioner cannot establish “prejudice” to excuse his procedural
default because the state court would not have disturbed the board’s decision to revoke parole. It
is true that “[a] federal court will review a state prisoner’s procedurally defaulted federal claim if
the prisoner shows ‘cause’ for the default and ‘prejudice’ from the error, or if a manifest
miscarriage of justice would otherwise result.” Sutton, 745 F.3d at 789-90 (citing Coleman,
501 U.S. at 749-50). If, however, Tennessee Code § 41-21-812, a state procedural rule, is found
to be anything other than an “adequate and independent state ground for denying review of a
federal constitutional claim,” then the district court’s finding of procedural default was in error
and no further showing of cause or prejudice is necessary. To put it another way, a finding that
the state procedural rule rests on an adequate and independent state ground is a pre-requisite to a
finding of procedural default. Only after a finding of procedural default may petitioners seek to
salvage their claim by proving cause and prejudice or a manifest miscarriage of justice. See
Maupin, 785 F.2d at 138.4

                                                          III

         As it was applied, Tennessee Code § 41-21-812 unconstitutionally blocked Clifton’s
access to the Court and therefore cannot be considered an “adequate and independent state


         4
          On August 5, 2014, three days before oral arguments were scheduled in this case, counsel for Carpenter
provided supplemental authority in accordance with Fed. R. App. 28(j). That letter suggests that Clifton could have
petitioned to have prior costs waived in an effort to avoid the collision described herein with Tennessee Code § 41-
21-812. Nowhere in these citations is it suggested, as implied in the Rule 28(j) letter, that Clifton could have had his
previous costs “waived or retaxed” after the parole revocation hearing. These supplemental authorities do not
change the Court’s analysis or conclusion.
No. 13-5402                          Clifton v. Carpenter                   Page 11

ground for denying review of a federal constitutional claim.” Guilmette, 624 F.3d at 290.
Because § 41-21-812 was not an adequate and independent state ground for denying review,
Clifton did not procedurally default his claim. For this reason, the District Court’s procedural
default finding is REVERSED, the case is REMANDED and the merits of Clifton’s
constitutional claims should be addressed by the district court.
