Zimmerman, 858 F.2d 144, 147 (3d Cir. 1988). In Lee
v. Kemna, 213 F.3d 1037 (8th Cir.2000), cert. granted,
2001 WL 178182 (Feb. 26, 2001) (U.S. No. 00-6933),
the court of appeals held that petitioner’s claim -- that he
was denied due process when the trial judge refused to
allow a continuance for alibi witnesses to appear after they
were in court on that morning and suddenly disappeared
-- was procedurally defaulted because the Missouri Court
of Appeals rejected his claim based upon the failure of
petitioner’s motion for a continuance to comply with the
court rules. The court of appeals also determined that
petitioner failed to show cause for his default or “actual
innocence.” The dissenting judge disputed that the state
court rules provided “any ‘adequate’ state law ground to
bar federal habeas review “ in the circumstances of this
case, where the non-appearance of the alibi witnesses was
“sudden or unexpected.” Where the last state court
providing reasons for its decision applied a state
procedural rule that barred consideration of the claims, it
may be presumed that any subsequent discretionary
denial of review did not reflect a disregard of the bar and
a consideration of the merits. Ylst v. Nunnemaker, 501
U.S. 797, 803, 111 S.Ct. 2590, 2593, 115 L.Ed.2d 706
(1991). In these circumstances, federal review of these
claims is precluded. McBee v. Abramajtys, 929 F.2d 264,
267 (6th Cir. 1991); accord, Rust v. Zent, 17 F.3d 155,
161 (6th Cir. 1994); Willis v. Aiken, 8 F.3d 556, 566-
67 (7th Cir. 1993), cert. denied, 511 U.S. 1005, 114
S.Ct. 1371, 128 L.Ed.2d 47 (1994). Moreover, so “long
as the state court explicitly invokes a state procedural bar
rule as a separate basis for decision,” “the adequate and
independent state ground doctrine requires the federal
court to honor a state holding that is a sufficient basis for
the state court’s judgment, even when the state court also
relies on federal law” in an alternative holding. Harris v.
Reed, 489 U.S. at 264 n.10, 109 S.Ct. at 1044 n.10;
Cabrera v. Barbo, 175 F.3d at 314; Sistrunk v. Vaughn, 96
F.3d 666, 673-74 (3d Cir. 1996). In this way, a state
court may reach a federal question without sacrificing its
interests in finality, federalism, and comity.“ Harris v.
Reed, 489 U.S. at 264.
To obtain habeas review of a procedurally defaulted
claim, the petitioner must show either “cause and
prejudice” or actual innocence. Bousley v. United States,
523 U.S. 614, 622, 118 S.Ct. 1604, 1611, 140 L.Ed.2d
828 (1998); Murray v. Carrier, 477 U.S. at 485, 496;
Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661,
2667-68, 91 L.Ed.2d 434 (1986); Wainwright v. Sykes,
433 U.S. at 87, 97 S.Ct. at 2506-07. To show “cause”
for his or her noncompliance with state court rules, a
petitioner must show that “some objective factor external
to the defense impeded counsel’s efforts to comply with
the State’s procedural rule.” Caswell v. Ryan, 953 F.2d
853, 862 (3d Cir.), cert. denied, 504 U.S. 944, 112 S.Ct.
2283, 119 L.Ed.2d 208 (1992); Sistrunk v. Vaughn, 96
F.3d at 675. While ineffective assistance of counsel may
be adequate to establish cause for a procedural default,
the constitutional claim of ineffective assistance must first
be exhausted in the state courts as an independent claim.
Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91
L.Ed.2d 397. Similarly, in order for a procedurally
defaulted claim of ineffective assistance of counsel to be
“cause” for another procedurally defaulted claim, the
petitioner must first establish “cause and prejudice” for
the default of the Sixth Amendment claim. Edwards v.
Carpenter, 120 S.Ct. at 1591.If a petitioner is unable to establish cause and
prejudice, habeas review of an otherwise procedurally
defaulted claim may still be obtained if petitioner can
show that he or she is the “extraordinary” “actually
innocent” state prisoner who, as a result of a
constitutional violation, was nonetheless convicted.
Bousley v. United States, 523 U.S. at 623; Sawyer v.
Whitley, 505 U.S. 333, 340, 112 S.Ct. 2514, 120
L.Ed.2d 269 (1992); Murray v. Carrier, 477 U.S. at 496;
Rust v. Zent, 17 F.3d at 161; Noltie v. Peterson, 9 F.3d
802, 806 (9th Cir. 1993); Hull v. Freeman, 991 F.2d 86,
91 n.3 (3d Cir. 1993). To establish “actual innocence,”
a habeas petitioner must demonstrate that, absent the
constitutional violation, “it is more likely than not that
no reasonable juror would have found petitioner guilty
beyond a reasonable doubt” Schlup v. Delo, 513 U.S. 298,
327-28, 115 S.Ct. 851, 867-68, 130 L.Ed.2d 808
(1995). The focus is on “actual” innocence. Id. “In
assessing the adequacy of petitioner’s showing, therefore,
the district court is not bound by the rules of
admissibility that would govern at trial. Instead, the
emphasis on ‘actual innocence’ allows the reviewing
tribunal also to “make its determination concerning the
petitioner’s innocence ‘in light of all the evidence,
including that alleged to have been illegally admitted
(but with due regard to any unreliability of it) and
evidence tenably claimed to have been wrongly excluded
or to have become available only after the trial.’” Id.The procedural default doctrine in a habeas context
is a matter of comity and federalism, rather than
jurisdiction. Trest v. Cain, 522 U.S. 87, 89, 118 S.Ct.
478, 480, 139 L.Ed.2d 444 (1997). Thus, a court of
appeals reviewing a district court’s decision in a habeas
matter is not required to raise the issue of procedural
default sua sponte. Id. Indeed, the defending state is
obligated to assert procedural default as an affirmative