Anthony Weddington v. Dushan Zatecky , 721 F.3d 456 ( 2013 )


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  •                                     In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 11-3303
    ANTHONY WEDDINGTON,
    Petitioner-Appellant,
    v.
    DUSHAN ZATECKY, Superintendent,
    Respondent-Appellee.
    Appeal from the United States District Court for the
    Southern District of Indiana, Indianapolis Division.
    No. 1:11-cv-00184-TWP-TAB — Tanya Walton Pratt, Judge.
    ARGUED FEBRUARY 12, 2013 — DECIDED AUGUST 1, 2013
    Before RIPPLE and TINDER, Circuit Judges, and ZAGEL,
    District Judge.*
    *
    The Honorable James B. Zagel, of the United States District Court for the
    (continued...)
    2                                                        No. 11-3303
    TINDER, Circuit Judge. Anthony Weddington was convicted
    in Indiana state court in two separate trials of a total of four
    counts of rape, two counts of criminal confinement, one count
    of criminal deviate conduct, and one count of robbery. He was
    sentenced to a total of 133 years’ imprisonment. He petitioned
    for a writ of habeas corpus, claiming that he was denied
    effective assistance of trial and appellate counsel in his second
    trial. The district court concluded that the petition was barred
    by the statute of limitations, that Weddington procedurally
    defaulted his claims, and that he was not entitled to relief;
    therefore, the court denied his petition. For the reasons that
    follow, we vacate the dismissal of the petition and remand to
    the district court for further proceedings.
    I. Background
    In 2002, the State of Indiana charged Weddington with four
    counts of rape, four counts of criminal deviate conduct, and
    two counts of criminal confinement. The charges were severed
    into two separate trials. The Honorable Tanya Walton Pratt
    (then a Marion Superior Court Judge) presided over
    Weddington’s first trial in September 2003 (Cause No. 49G01-
    0202-FB-029155). A jury found him guilty of rape, robbery, and
    criminal confinement, and Judge Pratt sentenced him to 73
    years’ imprisonment. Weddington appealed; the Indiana Court
    of Appeals affirmed.
    *
    (...continued)
    Northern District of Illinois, sitting by designation.
    No. 11-3303                                                      3
    The remaining charges against Weddington were tried in a
    March 4, 2005 bench trial before Marion Superior Court Judge
    Robert Altice (Cause No. 49G02-0202-FB-23310). Prior to late
    February of that year, Weddington had been proceeding pro se
    with stand-by counsel. At the end of that month, however,
    Weddington sought appointment of counsel and, on March 2,
    2005, stand-by counsel was appointed defense counsel. Defense
    counsel called no witnesses at trial. Judge Altice found
    Weddington guilty of three counts of rape, one count of
    criminal deviate conduct, and one count of criminal confine-
    ment, and sentenced him to 60 years’ imprisonment to run
    consecutive to the sentence imposed in the 2003 case.
    Weddington appealed his 2005 convictions and the Indiana
    Court of Appeals affirmed. He sought transfer to the Indiana
    Supreme Court, which was denied.
    In 2007, Weddington filed a state petition for post-convic-
    tion relief raising claims challenging his 2005 convictions,
    claiming, inter alia, ineffective assistance of trial and appellate
    counsel. The state trial court held evidentiary hearings on the
    petition and on May 12, 2009, the court denied post-conviction
    relief. Weddington did not appeal.
    On February 4, 2011, Weddington filed a pro se habeas
    petition under 
    28 U.S.C. § 2254
    , challenging his 2005 convic-
    tions. The petition claims that the trial court erred in denying
    a motion to suppress all evidence from a January 29, 2002
    traffic stop. It also raises ineffective-assistance-of-counsel
    claims directed at trial counsel and appellate counsel, including
    one related to a fourth amendment claim. And Weddington
    maintains that his wife would have testified at trial and given
    him an alibi to the crimes charged, yet trial counsel failed to
    4                                                    No. 11-3303
    contact her or any other witness, even though counsel was told
    that she wanted to testify. In his petition, Weddington asserts
    that he was prevented from appealing the denial of his post-
    conviction motion because the prison administration “confis-
    cated all of his legal work, legal books, and pens and pencils
    for over a year.” Petition 8. He asserts that the one-year
    limitations period is no bar to his petition “because all of [his]
    legal paper work, legal books, and even his legal mail was
    confiscated by the officials at the prison…; for well over a year
    these items were taken. Even [his] pens and pencils were
    taken.” 
    Id. at 14
    . Weddington declared under penalty of
    perjury that the assertions in his petition are true and correct,
    and he signed his petition February 2, 2011.
    In an attachment to his federal habeas petition, Weddington
    further states that when he was sent to segregation, “all of his
    personal property and belongings were taken from him and
    placed inside of a plastic gray box by the institution officials.”
    
    Id. at 17-18
    . He also claims that “[he] was not allowed to
    retrieve any of his legal paperwork…for well over a year,” 
    id. at 18
    , and that even though he was released from disciplinary
    segregation in June 2010, the property that had been put in the
    gray box was not returned to him until August 2010. Further-
    more, when the property was returned, “basically all” of his
    legal books and paperwork, including his habeas petition, were
    missing. 
    Id. at 19
    . Weddington separately signed and dated the
    attachment, but without a separate indication that the attach-
    ment, too, was signed under penalty of perjury.
    Weddington’s federal habeas case was assigned to district
    judge Tanya Walton Pratt (who had been appointed to the
    United States District Court for the Southern District of Indiana
    No. 11-3303                                                      5
    as of June 2010). On September 19, 2011, Judge Pratt, as a
    federal district judge, denied the petition as barred by the
    statute of limitations and procedural default without address-
    ing the merits of the claims. Weddington did not raise any
    issue in the district court with respect to Judge Pratt’s partici-
    pation in his federal habeas case.
    This court granted Weddington a certificate of appealability
    upon finding a substantial showing of the denial of the right to
    effective assistance of trial and appellate counsel. We directed
    the parties to brief the timeliness of the petition and whether
    Weddington procedurally defaulted on his federal habeas
    claims. We also instructed them to address whether recusal of
    the district judge was required.
    II. Discussion
    A federal court can grant a writ of habeas corpus if a
    petitioner demonstrates that he is in custody in violation of
    clearly established federal law. 
    28 U.S.C. § 2254
    (a). We review
    a district court’s denial of a habeas petition de novo. Resendez
    v. Smith, 
    692 F.3d 623
    , 626 (7th Cir. 2012). In this case, we first
    consider whether a district court judge must recuse herself
    from participating in a § 2254 petition where the judge, in her
    former capacity as a state court judge, presided over the
    defendant’s conviction for state criminal charges that were
    closely related to the state criminal charges underlying the
    federal habeas action. Then we consider the state’s arguments
    that Weddington failed to clear procedural hurdles erected by
    the Antiterrorism and Effective Death Penalty Act of 1996
    (AEDPA): the one-year statute of limitations and the
    exhaustion-of-state-remedies requirement.
    6                                                      No. 11-3303
    A. Recusal
    Our first task is to decide whether the district judge should
    have recused herself. Federal law provides that “[a]ny…judge
    …shall disqualify himself in any proceeding in which his
    impartiality might reasonably be questioned.” 
    28 U.S.C. § 455
    (a). The purpose of the statute “is to preserve the appear-
    ance of impartiality.” United States v. Johnson, 
    680 F.3d 966
    , 979
    (7th Cir.), cert. denied, 
    133 S. Ct. 672
     (2012). It is important to a
    litigant and to the fairness and public reputation of judicial
    proceedings that review of a case be conducted by “a judge
    other than the judge who presided over the case at trial.”
    Clemmons v. Wolfe, 
    377 F.3d 322
    , 325 (3d Cir. 2004). Indeed, 
    28 U.S.C. § 47
     provides: “No judge shall hear or determine an
    appeal from the decision of a case or issue tried by him.” This
    statute is not strictly applicable here because it applies to
    appeals, not federal habeas petitions. But the habeas petition is
    similar to appellate review. In a federal habeas action, the
    petitioner has “the opportunity to have a federal court review
    the state proceedings for constitutional infirmities. In this
    respect, there is no reason why the same rules governing
    independence, conflict of interest, or appearance of partiality
    should not apply.” Clemmons, 
    377 F.3d at 325-26
    ; see also Russell
    v. Lane, 
    890 F.2d 947
    , 948 (7th Cir. 1989) (noting that a federal
    habeas proceeding “is addressed to a judge…who had no
    emotional commitment to vindicating state justice as adminis-
    tered in the petitioner’s case”).
    The state argues that a § 455(a) claim of bias is not pre-
    served for appeal unless the complaining party seeks a writ of
    mandamus. See, e.g., Johnson, 
    680 F.3d at 980
     (“Because a party
    No. 11-3303                                                      7
    waives his § 455(a) recusal argument by failing to petition for
    a writ of mandamus, it follows that he also waives it by failing
    altogether to raise it at the district court level.” (quotation and
    citation omitted)); United States v. Diekemper, 
    604 F.3d 345
    , 351
    (7th Cir. 2010) (“[R]ecusal under § 455(a) must be sought
    immediately through a writ of mandamus or it is waived.”).
    Yet, at the same time and not as an alternative argument, the
    state also asserts that we review Weddington’s claim that
    Judge Pratt should have recused herself for plain error. Thus,
    the state may have waived the waiver argument. But regard-
    less of whether Weddington waived this claim for purposes of
    the prior proceedings below, as we shall see, further proceed-
    ings in the district court are necessary. We review his claim
    with that in mind.
    Clemmons is a closely analogous case. There, the district
    judge dismissed the habeas petition as untimely, and that same
    judge had been the state court judge who had presided over
    the petitioner’s criminal trial. 
    377 F.3d at 324
    . The Third Circuit
    reviewed for plain error because the petitioner did not object
    to the judge’s failure to recuse in the habeas action. The court
    stated that “the error complained of in this case—a federal
    judge sitting in review of the propriety of the state proceedings
    conducted by that judge—seriously affects the fairness and
    public reputation of the judicial proceedings.” 
    Id. at 325
    . The
    court found that the district judge’s failure to recuse “has
    created an appearance of impropriety that runs the risk of
    undermining the public’s confidence in the judicial process.”
    
    Id. at 328
     (quotation and citation omitted). Clemmons estab-
    lished a broad rule requiring that each federal district judge
    “recuse himself or herself from participating in a 
    28 U.S.C. § 8
                                  No. 11-3303
    2254 habeas corpus petition of a defendant raising any issue
    concerning the trial or conviction over which the judge
    presided in his or her former capacity as a state court judge.”
    
    Id. at 329
    . Similarly, in Russell, we concluded that the petitioner
    “was entitled to have his habeas corpus petition heard by a
    judge who had not participated in his conviction.” 
    890 F.2d at 948
     (judge who dismissed habeas petition had been a member
    of the state court of appeals panel that had affirmed peti-
    tioner’s conviction on direct appeal).
    In arguing that Judge Pratt was not required to recuse
    herself, the state relies on Daniels v. Wilson, No. 10-4562, 
    2012 WL 6176999
     (3d Cir. Dec. 12, 2012) (unpublished). In that case,
    the state court judge who had issued a warrant for Daniels’
    arrest when he failed to appear for a preliminary hearing
    ended up being the district judge who denied Daniels’ federal
    habeas petition. In deciding that the judge was not required to
    recuse himself based on his involvement in the state court
    proceedings, the court considered Clemmons’s broad rule and
    the Supreme Court’s instruction that when considering the
    need for recusal under § 455(a), courts “cannot ignore the
    factual realities” of the case under review. Id. at *3. The court
    concluded that the district judge was not required to recuse
    himself because he “did not preside over any trial or conviction
    of Daniels” and only issued an arrest warrant when Daniels
    failed to appear at a preliminary hearing. Id. Further, the court
    reasoned that the warrant “did not concern the substantive
    charges” but was nondiscretionary and ministerial, and the
    habeas petition raised no issue regarding the warrant or any
    conduct by that judge. Id. Thus, the district judge was not
    “tasked with reviewing his past state court rulings in a federal
    No. 11-3303                                                     9
    habeas case.” Id. at *4 (quoting Clemmons, 
    377 F.3d at 328
    ). The
    court concluded that a reasonable person would not doubt the
    judge’s impartiality in deciding the habeas petition, and recusal
    was not required. 
    Id.
    Although Clemmons is not directly on point, Weddington’s
    case is closer to Clemmons than to Daniels. Judge Pratt did not
    preside over the trial and conviction in the 2005 case, but she
    did preside over the trial and conviction in the 2003 case. In
    that capacity, she denied a motion to suppress regarding the
    traffic stop that led to Weddington’s arrest and the investiga-
    tion that led to both criminal cases. That same traffic stop was
    also challenged in a motion to suppress in the 2005 case. Thus,
    the same facts and circumstances, and perhaps legal argu-
    ments, were involved in Judge Altice’s denial of the suppres-
    sion motion in the 2005 case as in Judge Pratt’s denial of the
    suppression motion in the 2003 case. Indeed, the state court of
    appeals’ decision on appeal of the 2005 case refers to its
    affirmance of Weddington’s conviction in the 2003 case, noting
    that the latter “challenged the propriety of the same traffic stop
    and subsequent detention.” Weddington v. State of Indiana,
    Mem. Decision 9 n.9 (Ind. Ct. App. April 18, 2006) (Short App.
    124 n.9).
    Furthermore, one of the ineffective-assistance claims raised
    in the habeas petition involves trial and appellate counsels’
    alleged failures with respect to a fourth amendment claim
    concerning the traffic stop that underlies both cases. Thus, in
    presiding over the habeas petition, Judge Pratt effectively
    would be reviewing an issue and matter over which she had
    already passed judgment as a state court judge. In addition, we
    note that while still on the state trial court in 2005, after the
    10                                                    No. 11-3303
    2003 conviction was affirmed on appeal, see Weddington v.
    State, No. 49A02-0311-CR-1004, 
    815 N.E.2d 1064
     (Ind. Ct. App.
    2004), Judge Pratt recused herself from further proceedings in
    the 2003 case. Though the reason for the state court recusal is
    not disclosed in the record, Weddington does not suggest that
    there is a basis for recusal in this habeas case other than the fact
    that Judge Pratt ruled on his fourth amendment claim while on
    the state court. (As an aside, we also note that following Judge
    Pratt’s state recusal, Weddington’s 2003 case was reassigned to
    the Honorable Jane E. Magnus-Stinson, then a Marion Superior
    Court Judge. Judge Magnus-Stinson became a federal district
    judge in 2010 and, like Judge Pratt, now sits on the United
    States District Court for the Southern District of Indiana.)
    Even though the federal habeas petition does not directly
    involve the 2003 criminal trial and convictions before Judge
    Pratt, the criminal charges tried in the 2003 case were closely
    related to the charges in the 2005 case underlying the habeas
    petition. The state suggests that Judge Pratt’s dismissal of the
    petition on procedural grounds makes a difference. It is true
    that one has to dig pretty deeply into a long petition (169
    grounds) to find the few references to the suppression ruling
    in the 2003 case. So, too, the timeliness and exhaustion con-
    cerns are much more apparent from a quick look at the petition
    and the relevant dates. It is certainly conceivable that Judge
    Pratt’s dismissal of the petition was done without any aware-
    ness that the claims being asserted raised any issue concerning
    a trial over which she had presided in her capacity as a state
    court judge. It is also true that Weddington did nothing to call
    the potential recusal issue to Judge Pratt’s attention.
    No. 11-3303                                                   11
    However, § 455(a) requires a judge to disqualify herself “in
    any proceeding in which [her] impartiality might reasonably be
    questioned” (emphasis added); this requirement is not limited
    to particular issues within that proceeding. The statute aims to
    avoid the appearance of impartiality, which does not necessarily
    depend on the particular issues on which a decision turns.
    Review of the habeas petition on the merits may require Judge
    Pratt to review the 2005 proceedings with respect to a suppres-
    sion motion aimed at the same stop and search as the one
    involved in the suppression motion on which she ruled in the
    2003 case. In our view, this could seriously affect the fairness
    and public reputation of the judicial proceedings and create an
    appearance of impropriety.
    As explained below, this case has to be remanded for
    further proceedings. Thus, unlike our cases in which it was too
    late to remedy an appearance of bias because the district judge
    was done with the case, see, e.g., In re Bergeron, 
    636 F.3d 882
    ,
    883-84 (7th Cir. 2011) (concluding that a party was not entitled
    to writ of mandamus ordering the judge’s removal where “it’s
    too late for us to order the judge removed from the case,
    because she’s through with it”); Diekemper, 
    604 F.3d at 352
    (observing that “[o]nce the proceedings at issue are concluded,
    a post hoc motion for recusal will do little to remedy any
    appearance of bias that was present” and “any remedy to the
    appearance of bias that may have existed has long since
    evaporated”), the appearance of bias can be remedied here
    before further proceedings are conducted in the district court.
    A simple application of our Circuit Rule 36 will assure that this
    case will be assigned to a different district judge on remand.
    12                                                   No. 11-3303
    B. Procedural Hurdles
    1. Limitations Period
    The state argues, and the district court found, that
    Weddington’s federal habeas petition is barred because it was
    filed outside the limitations period. A petitioner must seek a
    federal writ of habeas corpus within one year of the date on
    which the state court judgment becomes final, though the
    limitations period is tolled while a “properly filed” application
    for post-conviction review is “pending” in state court. 
    28 U.S.C. § 2244
    (d)(1)(A), (d)(2); Villanueva v. Anglin, Nos. 12-1559 & 12-
    2177, 
    2013 WL 2992119
    , at *3 (7th Cir. June 17, 2013). An
    untimely petition “foreclose[s] habeas relief.” 
    Id. at *5
    .
    AEDPA’s limitations period, however, is subject to equitable
    tolling, if the petitioner shows “‘(1) that he has been pursuing
    his rights diligently, and (2) that some extraordinary circum-
    stance stood in his way.’” Holland v. Florida, 
    130 S. Ct. 2549
    ,
    2563 (2010) (quoting Pace v. DiGuglielmo, 
    544 U.S. 408
    , 418
    (2005)).
    Weddington’s convictions were final September 7, 2006,
    when the time to seek certiorari in the Supreme Court expired.
    On February 12, 2007, 158 days later, he filed a pro se petition
    for post-conviction relief in state court. (The district court and
    respondent erred in finding that he filed his petition 127 days
    later.) The limitations period was tolled while that petition was
    pending. On May 12, 2009, the trial court denied his post-
    conviction petition, and the federal habeas limitations period
    ran on Monday, December 9, 2009. See Fed. R. Civ. P. 6(a).
    Weddington’s petition was signed and deemed filed on
    No. 11-3303                                                     13
    February 2, 2011. Thus, his federal habeas petition was un-
    timely.
    According to Weddington, the district court erred in
    dismissing his petition because the limitations period should
    have been equitably tolled by the state’s confiscation of his
    legal papers. The state responds that the record fails to support
    his contention. Its argument against equitable tolling, on
    appeal as in the district court, is based solely on its challenge
    as to whether Weddington was prohibited access to his legal
    materials while he was housed in disciplinary segregation.
    “The intentional confiscation of a prisoner’s habeas corpus
    petition and related legal papers by a corrections officer is
    ‘extraordinary’ as a matter of law.” Valverde v. Stinson, 
    224 F.3d 129
    , 133 (2d Cir. 2000) (holding that a corrections officer’s
    confiscation of a prisoner’s draft habeas petition and related
    legal papers can justify equitable tolling of the one-year
    limitations period); see also United States v. Gabaldon, 
    522 F.3d 1121
    , 1124–27 (10th Cir. 2008) (holding that prison’s complete
    confiscation of petitioner's legal materials six weeks before
    filing deadline and its holding of papers until after limitations
    period expired constituted an extraordinary circumstance for
    purposes of equitable tolling).
    The state maintains that Weddington offers only bald
    assertions in his petition to support his claim, cites no evidence,
    and disregards contrary evidence. However, in his habeas
    petition, Weddington asserts that when he was placed in
    disciplinary segregation the prison official confiscated all of his
    legal paperwork (including his petition for habeas corpus),
    legal books, pens and pencils and he was not allowed to
    retrieve them for over one year. The petition is declared and
    14                                                     No. 11-3303
    stated under penalty of perjury and thus is considered an
    affidavit. See Lafuente v. United States, 
    617 F.3d 944
    , 946 (7th Cir.
    2010) (concluding that a § 2255 motion sworn under penalty of
    perjury was considered an affidavit); Kafo v. United States, 
    467 F.3d 1063
    , 1068 (7th Cir. 2006) (the allegations in a motion
    signed under penalty of perjury “become evidence”); Paters v.
    United States, 
    159 F.3d 1043
    , 1052 (7th Cir. 1998) (“when a
    petition contains language to the effect of…‘I declare (or
    certify, verify, or state) under penalty of perjury that the
    foregoing is true and correct,’ such petition, and the declara-
    tion(s) submitted along with it, are tantamount to affidavits.”
    (footnote omitted)).
    To be sure, the state has presented the affidavit of Tom
    Richardson, Correctional Case Manager at Pendleton where
    Weddington was housed, contradicting Weddington’s asser-
    tions. Richardson states that Weddington was never prohibited
    from accessing his legal materials or the facility’s legal refer-
    ence materials while he was in disciplinary segregation. But the
    competing evidence simply creates a factual dispute. As for the
    facility’s operational procedures which provide for access to
    legal materials by inmates in disciplinary segregation, the mere
    existence of these procedures does not compel a finding that
    they were followed in this case. Given Weddington’s state-
    ments to the contrary, the procedures themselves cannot
    establish that he was in fact provided his legal materials.
    The record presents factual issues that must be resolved
    before a decision can be made regarding equitable tolling, and
    it appears that an evidentiary hearing is necessary to resolve
    the fact issues. The district court erred in failing to consider
    No. 11-3303                                                       15
    whether the limitations period was equitably tolled by the
    state’s alleged confiscation of Weddington’s legal papers.
    2. Exhaustion
    The state argues that Weddington has procedurally
    defaulted his habeas claims and that he cannot overcome his
    default. A petitioner must raise his constitutional claims in
    state court “to alert fairly the state court to the federal nature
    of the claim and to permit that court to adjudicate squarely that
    federal issue.” Villanueva, 
    2013 WL 2992119
    , at *5 (quotation
    and citation omitted). The failure to present fairly each habeas
    claim in state court “leads to a default of the claim[s]” and
    “bar[s] the federal court from reviewing the claim[s’] merits.”
    Smith v. McKee, 
    598 F.3d 374
    , 382 (7th Cir. 2010).
    The district judge determined that Weddington procedur-
    ally defaulted his federal habeas claims by failing to appeal the
    state trial court’s denial of post-conviction relief. The state trial
    court issued its findings of fact and conclusions of law on May
    12, 2009, when Weddington already was in disciplinary
    segregation. Weddington did not appeal from the trial court’s
    denial of his petition for post-conviction relief and therefore
    defaulted the claims raised therein.
    However, a district court may excuse procedural default if
    the petitioner “can demonstrate either (a) cause for the default
    and prejudice (i.e., the errors worked to the petitioner’s ‘actual
    and substantial disadvantage,’); or (b) that failure to consider
    his claim would result in a fundamental miscarriage of justice
    (i.e., a claim of actual innocence).” Conner v. McBride, 
    375 F.3d 643
    , 648 (7th Cir. 2004) (quoting United States v. Frady, 
    456 U.S. 16
                                                       No. 11-3303
    152, 170 (1982)) (emphasis added). Cause is defined as “an
    objective factor, external to the defense, that impeded the
    defendant’s efforts to raise the claim in an earlier proceeding.
    Prejudice means an error which so infected the entire trial that
    the resulting conviction violates due process.” McKee, 
    598 F.3d at 382
     (quotation and citation omitted). Procedural default is an
    affirmative defense and can be waived. Eichwedel v. Chandler,
    
    696 F.3d 660
    , 669 (7th Cir. 2012).
    If Weddington’s claims are believed, by the time the state
    trial court entered judgment on his post-conviction petition, his
    habeas petition and legal papers had been taken from him and
    he had no access to them. This lack of access he alleges contin-
    ued for more than one year—well beyond the 30 days allowed
    for appeal. See Ind. R. App. P. 9(A)(1). And if Weddington’s
    claims are credited, the confiscation of his legal materials can
    establish cause for his procedural default. Cf. Valverde, 
    224 F.3d at 134
     (“[A] person is plainly ‘prevented’ from filing a pleading
    for some period of time if he is deprived of the sole copy of
    that pleading.”).
    In arguing that the procedural default could not be ex-
    cused, the state asserts that Weddington has not shown cause
    or a fundamental miscarriage of justice; the state has not
    addressed prejudice. See Resp’t’s Br. 24 (“Weddington cannot
    excuse his procedural default. Weddington does not show
    cause for the procedural default or that the failure to consider
    the claims will result in a fundamental miscarriage of justice.”);
    id. at 28 (noting that defaulted habeas claims may be reviewed
    if a petitioner establishes cause and prejudice and arguing that
    “Weddington has not shown ca[u]se ”). However,
    No. 11-3303                                                   17
    Weddington’s procedural default may be excused if he shows
    either “cause and prejudice” or a “fundamental miscarriage of
    justice” if his claims are not considered. (On appeal he argues
    that he can avail himself of both means of excusing his default.)
    Likewise, the state failed to raise or develop any argument
    about the prejudice part of the “cause and prejudice” standard
    in the district court. Instead, it argued only that Weddington
    had not shown cause: It attempted to refute his claims about
    the confiscation of and access to his legal materials. It may be
    that Weddington can show prejudice given his allegations of
    counsel’s ineffectiveness in failing to investigate and call his
    wife as an alibi witness.
    We are, of course, aware that in this court the state has
    argued that Weddington’s claims of ineffective assistance of
    counsel lack merit. And we are well aware that Strickland
    claims have a prejudice component. See Strickland v. Washing-
    ton, 
    466 U.S. 668
    , 694-95 (1984). But the state also has argued
    that the “merits of Weddington’s claims are not properly
    before the Court.” Resp’t’s Br. 29. And more importantly, the
    state never argued in the district court that Weddington could
    not show prejudice. Thus, this is not a case in which we could
    affirm on the ground that prejudice has not been shown. Cf.
    Thayer v. Chiczewski, 
    705 F.3d 237
    , 247 (7th Cir. 2012) (stating
    that “we can affirm on any ground supported in the record, so
    long as that ground was adequately addressed in the district
    court and the nonmoving party had an opportunity to contest
    the issue” (quotation and citation omitted)). As with equitable
    tolling, further findings are necessary to determine whether
    Weddington can overcome his procedural default. Therefore,
    18                                               No. 11-3303
    we must remand for further findings, including an evidentiary
    hearing, if necessary.
    III.   Conclusion
    We accordingly VACATE the denial of Weddington’s habeas
    petition and remand for further proceedings consistent with
    this opinion. Circuit Rule 36 shall apply on remand.