When is a Procedural Bar Not a Procedural Bar? MARs, Gatekeeper Orders, and the Procedural Bar

We get a lot of questions about motions for appropriate relief (“MARs”). Post-conviction can be a daunting area for practitioners and judges alike. On the state and federal levels, the procedural issues alone can feel like a maze. A recent(ish) case from the Court of Appeals, State v. Blake, ___ N.C. App. ___, 853 S.E.2d 838 (Dec. 31, 2020), shines some light on aspects of the procedural bar in state post-conviction proceedings and is the subject of today’s post.

Background. The case is mostly about a structural error that occurred at trial. The defendant was tried for second-degree murder and convicted of voluntary manslaughter. After the verdict, the judge spoke with members of the jury. Numerous jurors indicated that they did not believe the State’s witnesses and were not sure that the defendant was guilty. Because “someone . . . died,” however, the jury felt compelled to return a guilty verdict. This was structural error. A defendant has a fundamental right to have his or her guilt determined by a reasonable doubt standard. When the jury failed to apply that burden of proof, the defendant was entitled to a new trial. This part of the case is fascinating, and I encourage readers to read the entire decision. (I previously wrote about structural errors here if you would like to read more on that subject.)

Despite granting relief on that issue, the court went on to examine a post-conviction issue. The defendant filed a MAR within 10 days of trial pursuant to G.S. 15A-1414, while his appeal was pending. The grounds alleged for relief are not relevant to this discussion. Suffice to say that the trial judge denied the motion without a hearing. In its order denying the motion, the trial court made the following decree:

Pursuant to N.C.G.S. § 15A-1419, Defendant’s failure to asset any other grounds in [the MAR] shall be subject to being treated in the future as a BAR to any other claims, assertions, petitions or motions that he might hereafter file in this case. Blake Slip op. at 19 (capitalization in original).

The Procedural Bar. G.S. 15A-1419, the statute relied upon by the judge to enter the purported procedural bar, lists various reasons that a MAR may be denied. One reason for denial is where the defendant could have raised the claim in an earlier MAR but failed to do so. (Note: Under G.S. 15A-1419(a)(1), the procedural bar for failure to raise the claim in an earlier MAR does not apply to MARs filed within 10 days of trial, or to MARs filed while the direct appeal was pending. This alone would seemingly render the bar inapplicable to the defendant’s situation in Blake, although the Court of Appeals did not decide the issue on this ground.)

The same statute lists exceptions to the procedural bar. If the defendant can show good cause for his or her failure to raise a claim in an earlier motion and actual prejudice resulting from the defaulted claim, the bar is excused. The procedural bar may similarly be avoided where failure to review the defendant’s claim would result in a fundamental miscarriage of justice. (The definitions of “good cause” and “fundamental miscarriage of justice” are limited under the statute, but that is a topic for another post.) The consent of the parties also provides a mechanism to avoid the procedural bar under G.S. 15A-1420(e) (providing that the parties to an MAR may enter into agreements for relief, including agreements as to procedural aspects of the case). My sense is that it is not unusual for post-conviction counsel to successfully navigate the procedural bar to obtain review of a second or subsequent MAR.

No Gatekeeping of Future MARs. The Blake court acknowledged the rules governing the procedural bar but unanimously found the trial court’s order improper. It held that the trial court lacked authority to enter a blanket bar on the defendant’s ability to make future claims. In the court’s words:

It is a correct statement of law that a defendant’s future MAR may be denied if he attempts to raise an issue in a MAR which has previously been determined if he was in the position to raise it in a prior motion or appeal. See N.C. Gen. Stat. § 15A-1419(a). But North Carolina General Statutes § 15A-1419(a) does not give a trial court authority to enter a gatekeeper order declaring in advance that a defendant may not, in the future, file an MAR; the determination regarding the merits of any future MAR must be decided based upon that motion. Blake Slip op. at 22.

Put another way, the defendant might be procedurally barred, but that determination must be made once he files a subsequent MAR. He may meet an exception to the procedural bar and has the right to attempt to do so, all things equal.

Gatekeeping Orders. A trial court may enter a “gatekeeper” order as a matter of its inherent authority, whereby a person must obtain judicial approval before filing a claim. Such orders are not entered lightly. A gatekeeper order is an extraordinary remedy reserved for the most vexatious litigants. Id. at 22 (citing Fatta v. M&M Properties Mgmt., Inc., 224 N.C. App. 18, 31 (2012)).  My former colleague Ann Anderson comprehensively wrote about gatekeeper orders here (we miss you, Ann!). It is a different animal than the procedural bar in the MAR statutes, and one does not necessarily (or commonly) follow the other. Filing one MAR does not approach the type of conduct required to justify a gatekeeper order—nor would a second or subsequent MAR filed in good faith, absent something more.

Impact of Blake. Blake clarifies that a trial court lacks authority to preemptively invoke a procedural bar against a defendant for future claims the defendant might make. Application of the procedural bar to a subsequent MAR must be determined when that motion is filed. A related but distinct point in the case is that the defendant may not be precluded from filing future claims based only on the denial of a previous MAR, at least not without the high standard for a gatekeeping order being met. Any decree in an order denying an MAR that purports to rule on future claims or to ban the defendant from filing them based only on those grounds is therefore unlawful and without force.

It is not clear to me how widespread the practice has been to include the type of gatekeeping/procedural bar language in MAR denial orders like in Blake, but the case holds that the practice is clearly improper. If any defendants were holding back filing a subsequent MAR because of language like that in their first post-conviction case, they are entitled to another bite of the post-conviction apple if they wish and can articulate why an exception to the procedural bar applies.

For more on the procedural bar or MARs in general, check out the excellent work of my colleague Jessie Smith in the Superior Court Bench Book on the topic, here. As always, please feel free to email me with questions or comments at

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