Steven Johnson v. Brian Foster , 786 F.3d 501 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2008
STEVEN D. JOHNSON,
Petitioner-Appellant,
v.
BRIAN FOSTER,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 11-CV-1137 — Nancy Joseph, Magistrate Judge.
____________________
ARGUED SEPTEMBER 12, 2014 — DECIDED MAY 6, 2015
____________________
Before EASTERBROOK, SYKES, and TINDER, Circuit Judges.
SYKES, Circuit Judge. A jury convicted Steven Johnson of
several state gun crimes arising out of a shootout in
Milwaukee. He challenged his convictions in a state post-
conviction motion, but the trial court denied the motion and
the state court of appeals affirmed. Johnson had 30 days to
petition for review by the Wisconsin Supreme Court. He
applied for a loan from the prison Business Office to help
2 No. 13-2008
cover the cost of the paper, photocopying, and postage
necessary to file the petition; Wisconsin law permits inmates
to borrow up to $100 annually for that purpose. The Busi-
ness Office denied his request, but Johnson contends that he
met the eligibility requirements and the loan was unlawfully
denied.
Johnson never filed a petition for review in the state su-
preme court. Instead, he sought federal habeas relief under
28 U.S.C. § 2254. Federal courts are normally precluded from
reviewing the habeas claims of state prisoners who proce-
durally default their claims by failing to present them
through one full round of state-court review. A default can
be excused, however, if the prisoner shows that prison
officials interfered with his ability to comply with the state
court’s procedural rules. Johnson argues that the wrongful
denial of his loan request should excuse his failure to peti-
tion the state supreme court for review.
The district court rejected this argument, and we affirm.
Johnson has not established that the denial of his loan appli-
cation was an objective, external impediment to his ability to
comply with the state court’s procedural rules or that it
actually prevented him from petitioning for review in the
Wisconsin Supreme Court. Moreover, Johnson’s argument
rests on his contention that the Business Office misinterpret-
ed or misapplied prison policies governing the loan pro-
gram. No state court has ruled on that question. For a federal
habeas court to excuse a procedural default based on its own
interpretation of a state prison policy—without guidance
from the state courts—would be starkly contrary to the
principles of federalism and comity that constrain all federal
habeas review.
No. 13-2008 3
I. Background
On November 8, 2007, Steven Johnson exchanged gunfire
with his ex-girlfriend’s brother-in-law in the parking lot of a
Milwaukee-area Family Dollar store. He was charged with
four gun crimes under Wisconsin law. A jury found him
guilty on all counts, and he was sentenced to 22 years in
prison.
Johnson alleges in his federal habeas petition that two
constitutional violations occurred during his state-court
proceedings: First, the court refused to continue the prelimi-
nary hearing in order to give him time to hire the lawyer of
his choice, and later it denied his multiple requests to repre-
sent himself.
Johnson attempted to raise these and other claims in a
direct appeal. Because his filing was untimely, however, the
trial court construed it as a motion for postconviction relief
under section 974.06 of the Wisconsin Statutes and denied it.
Johnson timely appealed that ruling to the Wisconsin Court
of Appeals.
The appeal remained pending for well over two years. At
some point Johnson sought reinstatement of his direct
appeal rights but that motion was denied. In December 2011,
while his appeal was still pending, he filed a premature
§ 2254 petition in federal district court seeking habeas re-
view. On April 19, 2012, before the federal court took up his
habeas petition, the Wisconsin Court of Appeals affirmed the
denial of his postconviction motion. Johnson had 30 days
from that date to petition the Wisconsin Supreme Court for
review of the appellate court’s decision. See WIS. STAT.
§§ 808.10(1), 809.62(1m).
4 No. 13-2008
In early May 2012, Johnson applied for a loan from the
prison Business Office under a state program that permits
loans of up to $100 per year to assist prisoners in paying for
the paper, photocopying, and postage needed to file legal
documents. See WIS. ADMIN. CODE DOC § 309.51(1); WIS.
STAT. § 301.328(1m). Johnson had used the loan program
earlier that year, but this time his application was rejected.
When Johnson asked for an explanation, the Business Office
promptly responded as follows:
A review of your income and expenditures
shows that you had deposits of $55.00 and can-
teen expenditures of $17.90 over the last
60 days. The canteen purchases were primarily
junk food. These funds could and should have
been used to meet your legal needs.
We will reconsider your request to reinstate
your legal loan at a future date. In the mean-
time, you may take advantage of the free week-
ly envelope/mailing for those who qualify.
Johnson doesn’t dispute the Business Office’s numbers, but
he says that all the money not spent at the canteen was
automatically withheld to pay for mandatory fees and
outstanding debts, including the principal on his prior legal
loans. 1
1 Johnson also says that he only bought food at the canteen on Fridays,
when the kitchen served fish (to which he’s allergic). His trust-account
statement shows all of his canteen charges were on Mondays, though
there may be a delay between the date charges are incurred and when
they’re posted. In any case, while we sympathize with Johnson’s predic-
ament, canteen purchases are, by definition, a discretionary use of funds.
No. 13-2008 5
Johnson never filed a petition for review in the Wisconsin
Supreme Court. Accordingly, the district court denied his
§ 2254 petition based on procedural default—his failure to
complete one full round of state-court review. The court
concluded that the procedural default was not excused by
the Business Office’s rejection of Johnson’s loan request
because he had no legal entitlement to a loan and the Busi-
ness Office provided a rational reason for the denial. The
court entered final judgment dismissing the habeas petition
and denied a certificate of appealability.
Johnson filed a notice of appeal. A motions judge of this
court construed the notice as a request for a certificate of
appealability and authorized an appeal on the two constitu-
tional claims mentioned above. The order also instructed the
parties to address the issue of procedural default.2
II. Discussion
The first and ultimately dispositive question is whether
Johnson’s procedural default may be excused. We review the
district court’s ruling on that issue de novo. Miller v. Smith,
765 F.3d 754, 764 (7th Cir. 2014).
Federalism and comity principles pervade federal habeas
jurisprudence. One of these principles is that “in a federal
system, the States should have the first opportunity to
address and correct alleged violations of [a] state prisoner’s
2The order also appointed pro bono counsel to assist Johnson on appeal.
Attorneys Thomas M. Dunham and Phoebe N. Coddington of Winston &
Strawn LLP accepted the representation and have ably discharged their
duties. We thank them for their assistance to their client and the court.
6 No. 13-2008
federal rights.” Coleman v. Thompson, 501 U.S. 722, 731 (1991).
To protect the primary role of state courts in remedying
alleged constitutional errors in state criminal proceedings,
federal courts will not review a habeas petition unless the
prisoner has fairly presented his claims “throughout at least
one complete round of state-court review, whether on direct
appeal of his conviction or in post-conviction proceedings.”
Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir. 2014);
28 U.S.C. § 2254(b)(1). This requirement has two compo-
nents: the petitioner’s claims must be exhausted, meaning
that there is no remaining state court with jurisdiction, and
the exhaustion must not be attributable to the petitioner’s
failure to comply with the state court system’s procedural
rules. “In habeas, the sanction for failing to exhaust properly
(preclusion of review in federal court) is given the separate
name of procedural default … .” Woodford v. Ngo, 548 U.S. 81,
92 (2006) (internal quotation marks omitted).
Procedural default is one application of the “adequate
and independent state ground” doctrine: “When a state
court resolves a federal claim by relying on a state law
ground that is both independent of the federal question and
adequate to support the judgment, federal habeas review of
the claim is foreclosed.”3 Richardson, 745 F.3d at 268
3 An adequate and independent state-law ground for a state-court
decision denies the Supreme Court certiorari jurisdiction. See Michigan v.
Long, 463 U.S. 1032, 1042 (1983). Thus, the procedural-default rule
prevents the anomaly of federal habeas courts reviewing state-court
decisions that the Supreme Court itself would be unable to review. See
Coleman v. Thompson, 501 U.S. 722, 730–31 (1991) (“Without the rule, a
federal district court would be able to do in habeas what this Court could
not do on direct review; habeas would offer state prisoners whose
custody was supported by independent and adequate state grounds an
No. 13-2008 7
(quotation marks omitted). The violation of a state court’s
procedural rules is an adequate and independent state-law
basis for denying a petitioner’s requested relief. Therefore, a
habeas petitioner who has procedurally defaulted in state
court—and thus has not fairly presented those claims
through one complete round of state-court review—cannot
have his defaulted claims heard in federal court. In this way,
federalism and comity principles protect the integrity of a
state court system’s procedural rules and ensure that the
state judiciary has the first opportunity to correct constitu-
tional errors. See Lambrix v. Singletary, 520 U.S. 518, 525
(1997) (“A State’s procedural rules are of vital importance to
the orderly administration of its criminal courts; when a
federal court permits them to be readily evaded, it under-
mines the criminal justice system.”).
As we’ve noted, Johnson’s direct appeal was deemed un-
timely, so the state trial court construed the filing as a post-
conviction motion and denied it. Johnson appealed, and on
April 19, 2012, the Wisconsin Court of Appeals affirmed.
Under the state court’s procedural rules, Johnson had
30 days from that date to petition the Wisconsin Supreme
Court for review. See WIS. STAT. §§ 808.10(1), 809.62. Johnson
never filed a petition for review and cannot do so now. Thus,
although he has exhausted review in the state courts (in the
sense that the doors of the Wisconsin Supreme Court are no
longer open to him), his claims are procedurally defaulted
because the exhaustion resulted from his own failure to
comply with state procedural rules. Johnson concedes as
much but argues that his default should be excused.
end run around the limits of this Court's jurisdiction and a means to
undermine the State’s interest in enforcing its laws.”).
8 No. 13-2008
A federal court may excuse a procedural default if the
habeas petitioner establishes that (1) there was good cause
for the default and consequent prejudice, see Murray v.
Carrier, 477 U.S. 478, 491 (1986), or (2) a fundamental miscar-
riage of justice would result if the defaulted claim is not
heard, see Schlup v. Delo, 513 U.S. 298, 315 (1995). The second
ground is satisfied only when the claimed constitutional
violation probably caused an innocent person to be convict-
ed. See McCleskey v. Zant, 499 U.S. 467, 494 (1991). Johnson
does not make that argument here. Instead he contends that
his procedural default should be excused for cause and
prejudice.
“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.” Weddington v. Zatecky,
721 F.3d 456, 465 (7th Cir. 2013) (internal quotation marks
omitted). “Prejudice means an error which so infected the
entire trial that the resulting conviction violates due pro-
cess.” Id.The Supreme Court has not provided “an exhaustive cat-
alog of … objective impediments” that satisfy the cause
requirement. Murray, 477 U.S. at 488. But interference by
state officials that makes compliance with a procedural rule
“impracticable” is one recognized impediment. Id. (quota-
tion marks omitted). To be “external to the defense,” the
cause must be “something that cannot fairly be attributed
to” the petitioner.4 Coleman, 501 U.S. at 753.
4Perhaps the most common reason to excuse a procedural default based
on interference by state officials is the concealment or suppression of
evidence that should have been disclosed by prosecutors under Brady v.
No. 13-2008 9
For example, we recently said that confiscation of a pris-
oner’s legal materials can establish cause for a procedural
default. Weddington, 721 F.3d at 466; see also Buffalo v. Sunn,
854 F.2d 1158, 1165 (9th Cir. 1988) (recognizing cause if a
prisoner was denied access to his legal materials, in contra-
vention of prison policy, during a lockdown). Other courts
have recognized interference by prison officials as a cause to
excuse a procedural default if the prisoner tendered his legal
documents to the prison mailroom before the filing deadline,
but they are not received by the court clerk until after the
deadline has passed.5 See, e.g., Henderson v. Palmer, 730 F.3d
554, 560 (6th Cir. 2013); Ivy v. Caspari, 173 F.3d 1136, 1141
(8th Cir. 1999); cf. Ray v. Clements, 700 F.3d 993, 1006 (7th Cir.
2012) (holding that the prison mailbox rule applies when
Maryland. See, e.g., Banks v. Dretke, 540 U.S. 668, 691 (2004); Crivens v.
Roth, 172 F.3d 991, 995 (7th Cir. 1999).
5 The record indicates that after his loan request was denied, Johnson
cobbled together a Wisconsin Supreme Court petition and submitted it
to the prison Business Office for mailing. But Johnson did not raise a
prison-mailbox argument in the district court or on appeal, and nothing
in the record addresses why this document was never received by the
state supreme court, so the issue is waived. After oral argument Johnson
(acting pro se) attempted to supplement the record with documents
purporting to show that his petition was not mailed because he did not
have sufficient available funds to pay for postage. We denied this belated
attempt to supplement the record. And waiver aside, although Wiscon-
sin has adopted a tolling rule similar to the prison-mailbox rule, see State
ex rel. Nichols v. Litscher, 635 N.W.2d 292 (Wis. 2001), there’s no reason to
believe that Wisconsin’s rule permits prisoners to send correspondence
submitted to the mailroom without proper postage. Cf. Ingram v. Jones,
507 F.3d 640, 645 (7th Cir. 2007) (“Although prisoners have right of
access to courts, they do not have right to unlimited free postage.”). So
the rule would not have excused Johnson’s default anyway.
10 No. 13-2008
determining whether a petitioner’s state postconviction
motion was properly filed for the purposes of triggering
28 U.S.C. § 2244(d)(2)’s one-year statute of limitations). A
third possible cause arises when a prisoner is housed out of
state and the resources available in the prison library are
inadequate for him to learn the procedures of the state
where he needs to file. See, e.g., Watson v. New Mexico,
45 F.3d 385, 388 (10th Cir. 1995). But see Malone v. Vasquez,
138 F.3d 711, 719 (8th Cir. 1998) (“While being incarcerated
in California may have made filing his petition in Missouri
slightly more cumbersome, Malone has not shown it inter-
fered with his ability to file. His California incarceration did
not amount to state interference with his access to the courts
and is therefore not cause.”).
The claimed impediment here—the Business Office’s de-
nial of Johnson’s request for a legal loan—is not quite like
any of these examples. To properly evaluate it, we need to
clarify exactly what Johnson’s “cause” theory is. After all, he
“has no constitutional entitlement to subsidy to prosecute a
civil suit.” Lindell v. McCallum, 352 F.3d 1107, 1111 (7th Cir.
2003) (internal quotation marks omitted); see WIS. STAT.
§ 974.06(6) (“Proceedings under this section [i.e., collateral
postconviction motions] shall be considered civil in na-
ture … .”). Acknowledging this, Johnson rests his argument
on the loan-eligibility criteria found in state regulations and
prison policies.
Recall that the Business Office denied Johnson’s loan re-
quest because he had funds available in his prison account
and had recently spent money on junk food from the canteen
rather than saving it for his anticipated legal expenses.
Johnson argues that this decision improperly interpreted
No. 13-2008 11
and applied the eligibility requirements for the loan pro-
gram. He also contends that he relied on the published loan-
eligibility criteria when he decided to spend his money at
the canteen. In other words, by promulgating (and then
disregarding) the loan-eligibility standards, the prison
altered the cost-benefit analysis he applied when deciding
whether to spend his money at the canteen or save it to pay
the expenses associated with a petition for review.
Loans to prisoners for legal expenses are governed by
section 301.328 of the Wisconsin Statutes, which (among
other requirements not relevant here) caps the annual loan
amount at $100. See WIS. STAT. § 301.328(1m). A state regula-
tion provides that a prisoner’s “[c]orrespondence to
courts … may not be denied due to lack of funds, except as
limited in this subsection.” WIS. ADMIN. CODE DOC
§ 309.51(1). The regulation goes on to say that “[i]nmates
without sufficient funds … may receive a loan from the
institution where they reside,” id. (emphasis added), which
implies some discretion on the part of prison administrators
in making the loans. 6 Johnson was not over the annual limit
when he applied for a loan in May 2012, so he takes the
position that his loan request was unlawfully denied. That is,
he insists that the Business Office’s reliance on any factor
other than the cap was improper.
6 The regulation specifies a $200 annual loan limit, but section 301.328 of
the Wisconsin Statutes was amended in 2011 to impose a $100 annual
cap. See 2011 Wis. Act 32, § 3014M (creating subsection (1m) of section
301.328, the $100 cap, effective July 1, 2011). The regulation has not been
updated to reflect the $100 cap.
12 No. 13-2008
This is not the interpretation adopted by the Division of
Adult Institutions (“DAI”), which has published loan-
eligibility policies to guide prison administrators in imple-
menting the program. DAI Policy #309.51.01(II) provides
that “[c]riteria used by facility staff to determine eligibility
or ineligibility for a legal loan include, but are not limited to”
ten listed factors. For example, the policy permits considera-
tion of “[i]nmate account balances,” the “[n]ature of pending
litigation and current legal needs,” and “[t]he inmate’s
history of repayment of legal loans.” DAI Policy
#309.51.01(II)(A), (E), (I). The Business Office’s reason for
denying Johnson’s application comports closely with subsec-
tion (D) of the policy: “[r]ecent spending patterns, including
canteen purchases, outside purchases, and funds to family.” Id.
at (D) (emphasis added).
Johnson insists that he could not have been expected to
manage his own finances “in anticipation of a legal need that
did not exist at the time of his purportedly irresponsible
canteen purposes.” If Johnson is suggesting that he had no
general responsibility to manage his funds in anticipation of
a forthcoming important legal need, he’s incorrect: “[L]ike
any other civil litigant, [an inmate] must decide which of his
legal actions is important enough to fund.” Lindell, 352 F.3d
at 1111. It’s true that Johnson’s appeal was pending for a long
time and he could not know precisely when it would be
decided, but he could have maintained a reserve sufficient to
finance his petition for review whenever the court of appeals
announced its decision. Instead he chose to deplete his
personal funds and rely on his ability to access a legal loan.
Furthermore, to qualify as good cause to excuse
Johnson’s procedural default, the denial of his loan
No. 13-2008 13
application must have made the timely filing of a petition for
review “impracticable” and it must be a factor “external”
(that is, not attributable) to him. Even if we were to accept
Johnson’s argument that the Business Office misinterpreted
or misapplied the loan-eligibility regulation and policy, it’s
not clear that the loan denial made it “impracticable” for him
to file a petition for review or that it qualifies as a cause
“external” to him.
Johnson argues that the denial of his loan application
prevented him from filing a petition for review because he
had depleted his own funds in reliance on the loan-eligibility
criteria. See McCleskey, 499 U.S. at 497–98 (“For cause to exist,
the external impediment … must have prevented petitioner
from raising the claim.”). In other words, the Business
Office’s misapplication of the eligibility criteria pulled the
rug out from under him.
We’ve rejected a similar reliance-based argument before,
albeit under somewhat different circumstances. In Moore v.
Casperson, we held that a prisoner’s reliance on circuit prece-
dent later overturned by the Supreme Court was insufficient
to establish cause to excuse a procedural default. 345 F.3d
474, 487 (7th Cir. 2003). We explained in Moore that the
“subsequently overruled circuit decision … did not actually
impede the effort to comply with any state court rule” but
rather “removed an incentive for compliance by indicating
(erroneously) that a particular action was not necessary for
federal habeas review purposes.” Id. In other words, reliance
on legal precedent is not enough by itself; there must be a
discrete, identifiable impediment to the prisoner’s ability
(rather than his motivation) to comply with the state’s
procedural rules. Applying the same understanding here,
14 No. 13-2008
Johnson’s purported reliance on the loan-eligibility criteria
may help explain why he didn’t keep a larger reserve in his
account, but it did not impede his ability to file a petition for
review in a concrete sense or otherwise make compliance
with the state’s procedural rules “impracticable.”
In addition to impracticability, Johnson must also show
that the Business Office’s loan denial was truly external to
him and not attributable to his own actions. Johnson insists
that under the DOC regulation and DAI policy, he was
entitled to a loan; his canteen spending was not a proper
reason to deny his request. The Business Office obviously
disagreed. Who’s right? The answer requires an interpreta-
tion and application of DOC § 309.51(1) and DAI Policy
#309.51.01(II). But a federal habeas court is not the proper
body to adjudicate whether a state court correctly interpret-
ed its own procedural rules, even if they are the basis for a
procedural default.7 See Barksdale v. Lane, 957 F.2d 379, 383–
84 (7th Cir. 1992) (“[A] federal court sitting in habeas corpus
is required to respect a state court’s finding of waiver or
procedural default under state law. Federal courts do not sit
to correct errors made by state courts in the interpretation of
7 A few very narrow exceptions to this doctrine exist. See Mullaney v.
Wilbur, 421 U.S. 684, 691 n.11 (1975) (“On rare occasions the Court has re-
examined a state-court interpretation of state law when it appears to be
an obvious subterfuge to evade consideration of a federal issue.”)
(internal quotation marks omitted); Kubat v. Thieret, 867 F.2d 351, 366
n.11 (7th Cir. 1989) (holding that the district court could review a claim
that the state supreme court said was not raised in the petitioner’s direct
appeal, and thus was waived, because the record was clear that the claim
had been properly raised).
No. 13-2008 15
state law.”) (quotation marks omitted). The same rule ap-
plies to administrative regulations and prison policies. See
Lenz v. Washington, 444 F.3d 295, 304 (4th Cir. 2006) (“Federal
habeas review is not the best context in which to determine
the propriety of [a state prison policy] … . [C]oncerns of
federalism and comparative expertise militate against feder-
al court supervision of administrative decisions made by
state departments of corrections.”).
Here, of course, no state court or administrative adjudica-
tor has addressed Johnson’s claim that the Business Office
misinterpreted the loan-eligibility criteria. That’s part of the
problem. Johnson never sought review from, much less
exhausted, the inmate complaint review system on this
issue. See WIS. ADMIN. CODE DOC §§ 310.04–.11, 310.08 (“An
inmate may use the ICRS to raise significant issues regarding
rules, living conditions, staff actions affecting institutional
environment, and civil rights complaints … .”); see also
Lovell v. Norris, 198 F.3d 674, 677 (8th Cir. 1999) (holding that
the petitioner “caused his own default by not pursuing the
remedies that Arkansas law afforded him” after a court
officer negligently failed to send documents that he had
requested). The inmate grievance system should have been
Johnson’s first step to challenge the decision by the Business
Office. If the unfavorable determination was upheld on
administrative appeal, Johnson would have had the option
to take the matter to state circuit court on certiorari review.
See State ex rel. L’Minggio v. Gamble, 667 N.W.2d 1, 7 (Wis.
2003) (“[A] court that is petitioned for a writ of certiorari
regarding a decision by a prison … committee deter-
mines: … whether the committee acted according to law;
[and] whether the committee’s action was arbitrary,
16 No. 13-2008
oppressive, or unreasonable and represented its will and not
its judgment … .”).
Without a ruling from a state court or agency that the de-
nial of his loan request was unlawful, we cannot conclude
that Johnson’s reliance on his ability to access a loan was well
placed. If it wasn’t, then his inability to file a petition was
attributable to the risk he assumed by relying on his own
unverified interpretation of the loan-eligibility criteria—not
to any external interference by prison officials. Only a
Wisconsin court or agency’s interpretation of the state regu-
lation and policy—or a concession by the State—could
provide us with the authority to excuse Johnson’s default on
this ground. But since Johnson never presented the issue to
any state authority for review, a federal habeas court cannot
be the first to interpret the loan-eligibility requirements.
Finally, the record does not support a conclusion that the
loan denial actually impeded Johnson’s ability to file a
petition for review in the Wisconsin Supreme Court. The
prison trust-account statement in the record shows that
Johnson had $25.80 in available funds as of May 14, 2012, the
day his loan request was denied. It’s not clear that this
amount wouldn’t cover the photocopying and postage
expenses for a petition for review. As the district court noted,
“[e]ven given Johnson’s expenditures and withholdings, his
prison trust account statement shows a balance of $25.80 … ,
thus not leaving him completely without funds.” Indeed,
Johnson doesn’t argue that $25.80 would have been insuffi-
cient to fund his petition. See WIS. ADMIN. CODE DOC
§ 309.51(2) (capping the price to prisoners for photocopies at
15¢ per page and paper at 2¢ per page).
No. 13-2008 17
When asked about this issue at oral argument, Johnson’s
counsel replied that the record was “confusing” on this point
but “there is some information” that Johnson “wasn’t able to
buy postage or anything with that money based on his
current status.” This seems to suggest that Johnson was
prohibited from accessing part or all of his account balance,
but nothing in the record or the briefs supports that claim.
We decline to consider it.8
In sum, Johnson failed to ask the Wisconsin Supreme
Court to review his constitutional claims before bringing
them to federal court in a § 2254 habeas petition. He argues
that this procedural default should be excused because
prison administrators refused to give him a legal loan. But
he’s not constitutionally entitled to a subsidy, and the denial
of his loan request was not an objective, external impedi-
ment to compliance with the state court’s procedural re-
quirements. Nor did the denial of his loan request actually
prevent him from filing a petition for review; as far as we
can tell on this record, he had funds available to do so.
Because Johnson has not established cause to excuse his
procedural default, federal habeas review is precluded. The
district court properly denied the § 2254 petition.
AFFIRMED.
8 As we noted in footnote 5, after oral argument Johnson attempted to
supplement the record with additional financial statements. We denied
leave to supplement the record.