OCTOBER TERM, 2001
Syllabus
LEE v. KEMNA, SUPERINTENDENT, CROSSROADS CORRECTIONAL CENTER
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
No. 00-6933. Argued October 29, 200l-Decided January 22,
2002
Petitioner Lee was tried for first-degree murder and a related
crime in state court. His planned alibi defense-that he was in
California with his family at the time of the murder-surfaced at
each stage of the proceedings. Although Lee's mother, stepfather,
and sister voluntarily came to Missouri to testify to his alibi,
they left the courthouse without explanation at some point on the
third day of trial, the day the defense case began. Lee's counsel
moved for an overnight continuance to gain time to find the
witnesses and enforce the subpoenas he had served on them. Neither
the trial judge nor the prosecutor identified any procedural flaw
in the motion's presentation or content. The trial judge denied the
motion, stating that it looked as though the witnesses had in
effect abandoned Lee, that his daughter's hospitalization would
prevent the judge from being in court the next day, and that he
would be unavailable on the following business day because he had
another trial scheduled. The trial resumed without pause, no alibi
witnesses testified, the jury found Lee guilty as charged, and he
was sentenced to prison for life without possibility of parole.
Lee's new trial motion, grounded in part on the denial of his
continuance motion, was denied, as was his motion for state
postconviction relief, in which he argued, inter alia, that the
refusal to grant his continuance motion deprived him of his federal
due process right to a defense. His direct appeal and his appeal
from the denial of postconviction relief were consolidated before
the Missouri Court of Appeals, which disposed of the case on state
procedural grounds. The appeals court held that the denial of the
continuance motion was proper because Lee's counsel had failed to
comply with Missouri Supreme Court Rule 24.09, which requires that
such motions be in writing and accompanied by an affidavit, and
with Rule 24.10, which sets out the showings a movant must make to
gain a continuance grounded on witnesses' absence. Declining to
consider the merits of Lee's due process plea, the Missouri Court
of Appeals affirmed his conviction and the denial of postconviction
relief. He then filed a federal habeas application, which the
District Court denied. The Eighth Circuit affirmed, ruling that
federal review of Lee's due process claim was unavailable because
the state court's re-
363
jection of that claim rested on state-law grounds-the failure of
the continuance motion to comply with Rules 24.09 and
24.10-independent of the federal question and adequate to support
the judgment, Coleman v. Thompson,
501 U. S. 722, 729.
Held: The Missouri Rules, as injected into this case by the
state appellate court, did not constitute state grounds adequate to
bar federal habeas review. Pp. 375-388.
(a) Although violation of firmly established and regularly
followed state rules ordinarily bars federal review, there are
exceptional cases in which exorbitant application of a generally
sound rule renders the state ground inadequate to stop
consideration of a federal question. See Davis v. Wechsler,
263 U. S. 22, 24.
This case fits within that limited category. The Court is guided
here by Osborne v. Ohio,
495 U. S. 103, 122-125.
Osborne applied the general principle that an objection ample and
timely to bring an alleged federal error to the attention of the
trial court, enabling it to take appropriate corrective action,
satisfies legitimate state interests, and therefore suffices to
preserve the claim for federal review. The sequence of events in
Lee's case also guides the Court's judgment. The asserted
procedural oversights, Lee's alleged failures fully to comply with
Rules 24.09 and 24.10, were first raised more than two and a half
years after his trial. The two Rules, Missouri asserted, work
together to enhance the reliability of a trial court's
determination whether to delay a scheduled criminal trial due to
the absence of a witness. Yet neither the prosecutor nor the trial
judge so much as mentioned the Rules as a reason for denying Lee's
continuance motion. If either had done so at the appropriate time,
Lee would have had an opportunity to perfect his plea to hold the
case over until the next day. Instead, the State first raised Rule
24.10 as a new argument in its brief to the Missouri Court of
Appeals, and that court, it seems, raised Rule 24.09's writing
requirements on its own motion. Pp. 375-380.
(b) Three considerations, in combination, lead to the conclusion
that the asserted state grounds are inadequate to block
adjudication of Lee's federal claim. First, when the trial judge
denied Lee's motion, he stated a reason that could not have been
countered by a perfect motion for continuance: He said he could not
carry the trial over until the next day because he had to be with
his daughter in the hospital; he further informed counsel that
another scheduled trial prevented him from concluding Lee's case on
the following business day. Although the judge hypothesized that
the witnesses had abandoned Lee, no proffered evidence supported
this supposition. Second, no published Missouri decision directs
flawless compliance with Rules 24.09 and 24.10 in the
364
Syllabus
unique circumstances of this case-the sudden, unanticipated, and
at the time unexplained disappearance of critical, subpoenaed
witnesses on what became the trial's last day. Third and most
important, the purpose of the Rules was served by Lee's submissions
both immediately before and at the short trial. As to the "written
motion" requirement, Rule 24.09 does not completely rule out oral
continuance motions, and the trial transcript enabled an appellate
court to comprehend the situation quickly. As to Rule 24.10, two of
the Rule's components were stressed by the State. Missouri
asserted, first, that Lee's counsel never mentioned in his oral
motion the testimony he expected from the missing witnesses, and
second, that Lee's counsel gave the trial court no reason to
believe that those witnesses could be located within a reasonable
time. These matters, however, were either covered by the oral
continuance motion or otherwise conspicuously apparent on the
record. Thus, the Rule's essential requirements were substantially
met in this case, and nothing would have been gained by requiring
Lee's counsel to recapitulate in rank order the showings the Rule
requires. See, e.
g., Osborne, 495 U. S., at 124. The case
is therefore remanded for adjudication of Lee's due process claim
on the merits. Pp.381-388.
213 F.3d
1037, vacated and remanded.
GINSBURG, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, O'CONNOR, SOUTER, and BREYER, JJ.,
joined. KENNEDY, J., filed a dissenting opinion, in which SCALIA
and THOMAS, JJ., joined, post, p. 388.
Bonnie 1. Robin- Vergeer, by appointment of the Court, 532 U. S.
956, argued the cause for petitioner. With her on the briefs were
David C. Vladeck and Alan B. Morrison.
Paul C. Wilson argued the cause for respondent. With him on the
brief were Jeremiah W (Jay) Nixon, Attorney General of Missouri,
James R. Layton, State Solicitor, and Michael
J. Spillane,
Assistant Attorney General.*
*Briefs of amici curiae urging affirmance were filed for the
State of Nebraska et al. by Don Stenberg, Attorney General of
Nebraska, Martin Swanson, Assistant Attorney General, and Dan
Schweitzer, joined by the Attorneys General for their respective
States as follows: Bill Pryor of Alabama, Bruce M. Botelho of
Alaska, Mark Pryor of Arkansas, Bill Lockyer of California, Ken
Salazar of Colorado, Thurbert E. Baker of Georgia, Carla
J.
Stovall of Kansas,
J. Joseph Curran, Jr., of Maryland,
Mike
365
JUSTICE GINSBURG delivered the opinion of the Court. Petitioner
Remon Lee asserts that a Missouri trial court deprived him of due
process when the court refused to grant an overnight continuance of
his trial. Lee sought the continuance to locate subpoenaed,
previously present, but suddenly missing witnesses key to his
defense against felony charges. On direct review, the Missouri
Court of Appeals disposed of the case on a state procedural ground.
That court found the continuance motion defective under the State's
rules. It therefore declined to consider the merits of Lee's plea
that the trial court had denied him a fair opportunity to present a
defense. Whether the state ground dispositive in the Missouri Court
of Appeals is adequate to preclude federal habeas corpus review is
the question we here consider and decide.
On the third day of his trial, Lee was convicted of firstdegree
murder and armed criminal action. His sole affirmative defense was
an alibi; Lee maintained he was in California, staying with his
family, when the Kansas City crimes for which he was indicted
occurred. Lee's mother, stepfather, and sister voluntarily came to
Missouri to testify on his behalf. They were sequestered in the
courthouse at the start of the trial's third day. For reasons then
unknown, they were not in the courthouse later in the day when
defense counsel sought to present their testimony. Discovering
their absence, defense counsel moved for a continuance until the
next morning so that he could endeavor to locate the three
witnesses and bring them back to court.
The trial judge denied the motion, stating that it looked to him
as though the witnesses had "in effect abandoned
Moore of Mississippi, Mike McGrath of Montana, Frankie Sue Del
Papa of Nevada, Betty D. Montgomery of Ohio, W A. Drew Edmondson of
Oklahoma, D. Michael Fisher of Pennsylvania, Charles M. Condon of
South Carolina, and Mark L. Shurtleff of Utah; and for the Criminal
Justice Legal Foundation by Kent S. Scheidegger.
366
the defendant" and that, for personal reasons, he would "not be
able to be [in court the next day] to try the case." Furthermore,
he had "another case set for trial" the next weekday. App. 22. The
trial resumed without pause, no alibi witnesses testified, and the
jury found Lee guilty as charged.
Neither the trial judge nor the prosecutor identified any
procedural flaw in the presentation or content of Lee's motion for
a continuance. The Missouri Court of Appeals, however, held the
denial of the motion proper because Lee's counsel had failed to
comply with Missouri Supreme Court Rules not relied upon or even
mentioned in the trial court:
Rule 24.09, which requires that continuance motions be in
written form, accompanied by an affidavit; and Rule 24.10, which
sets out the showings a movant must make to gain a continuance
grounded on the absence of witnesses.
We hold that the Missouri Rules, as injected into this case by
the state appellate court, did not constitute a state ground
adequate to bar federal habeas review. Caught in the midst of a
murder trial and unalerted to any procedural defect in his
presentation, defense counsel could hardly be expected to divert
his attention from the proceedings rapidly unfolding in the
courtroom and train, instead, on preparation of a written motion
and affidavit. Furthermore, the trial court, at the time Lee moved
for a continuance, had in clear view the information needed to rule
intelligently on the merits of the motion. Beyond doubt, Rule 24.10
serves the State's important interest in regulating motions for a
continuancemotions readily susceptible to use as a delaying tactic.
But under the circumstances of this case, we hold that petitioner
Lee, having substantially, if imperfectly, made the basic showings
Rule 24.10 prescribes, qualifies for adjudication of his federal,
due process claim. His asserted right to defend should not depend
on a formal "ritual ... [that] would further no perceivable state
interest." Osborne v. Ohio, 495 U. S.
367
103, 124 (1990) (quoting James v. Kentucky,
466 U. S. 341, 349 (1984)
(in turn quoting Staub v. City of Baxley,
355 U. S. 313, 320
(1958))) (internal quotation marks omitted).
I
On August 27, 1992, Reginald Rhodes shot and killed Steven
Shelby on a public street in Kansas City, Missouri. He then jumped
into the passenger side of a waiting truck, which sped away. Rhodes
pleaded guilty, and Remon Lee, the alleged getaway driver, was
tried for first-degree murder and armed criminal action.
Lee's trial took place within the span of three days in February
1994. His planned alibi defense-that he was in California with his
family at the time of the murder-surfaced at each stage of the
proceedings. During voir dire on the first day of trial, Lee's
court-appointed defense attorney informed prospective jurors that
"[t]here will be a defense in this case, which is a defense of
alibi." App. 10; see also ibid. ("And we'll put on evidence-I can't
go into it now-that he was somewhere else, he couldn't commit the
crime and I believe the judge will give an instruction on alibi at
the conclusion of my case."). Later in the voir dire, defense
counsel identified the three alibi witnesses as Lee's mother,
Gladys Edwards, Lee's sister, Laura Lee, and Lee's stepfather,
James Edwards, a minister. Id., at 11-13.
The planned alibi defense figured prominently in counsels'
opening statements on day two of Lee's trial. The prosecutor, at
the close of her statement, said she expected an alibi defense from
Lee and would present testimony to disprove it. Tr. 187. Defense
counsel, in his opening statement, described the alibi defense in
detail, telling the jury that the evidence would show Lee was not
in Kansas City, and therefore could not have engaged in crime
there, in August 1992. App. 12-13. Specifically, defense counsel
said three close family members would testify that Lee came to
visit them in
368
Ventura, California, in July 1992 and stayed through the end of
October. Lee's mother and stepfather would say they picked him up
from the airport at the start of his visit and returned him there
at the end. Lee's sister would testify that Lee resided with her
and her four children during this time. All three would affirm that
they saw Lee regularly throughout his unbroken sojourn. Ibid.
During the prosecution case, two eyewitnesses to the shooting
identified Lee as the driver. The first, Reginald Williams,
admitted during cross-examination that he had told Lee's first
defense counsel in a taped interview that Rhodes, not Lee, was the
driver. Tr. 285. Williams said he had given that response because
he misunderstood the question and did not want to be "bothered" by
the interviewer. Id., at 283, 287. The second eyewitness, William
Sanders, was unable to pick Lee out of a photographic array on the
day of the shooting; Sanders identified Lee as the driver for the
first time 18 months after the murder. Id., at 413-414.
Two other witnesses, Rhonda Shelby and Lynne Bryant, were called
by the prosecutor. Each testified that she knew Lee and had seen
him in Kansas City the night before the murder. Both said Lee was
with Rhodes, who had asked where Steven Shelby (the murder victim)
was. Id., at 443487. The State offered no physical evidence
connecting Lee to the murder and did not suggest a motive.
The defense case began at 10:25 a.m. on the third and final day
of trial. Two impeachment witnesses testified that morning. Just
after noon, counsel met with the trial judge in chambers for a
charge conference. At that meeting, the judge apparently agreed to
give an alibi instruction submitted by Lee. Id., at 571.1
1 That Lee had submitted an alibi instruction during the charge
conference became apparent when the trial judge, delivering the
charge, began to read the proposed instruction. He was interrupted
by the prosecutor
369
At some point in the late morning or early afternoon, the alibi
witnesses left the courthouse. Just after one o'clock, Lee took the
stand outside the presence of the jury and, for the record,
responded to his counsel's questions concerning his knowledge of
the witnesses' unanticipated absence. App. 15. Lee, under oath,
stated that Gladys and James Edwards and Laura Lee had voluntarily
traveled from California to testify on his behalf. Id., at 16. He
affirmed his counsel's representations that the three witnesses,
then staying with Lee's uncle in Kansas City, had met with Lee's
counsel and received subpoenas from him; he similarly affirmed that
the witnesses had met with a Kansas City police officer, who
interviewed them on behalf of the prosecutor. Id., at 16-18. Lee
said he had seen his sister, mother, and stepfather in the
courthouse that morning at 8:30 and later during a recess.
On discovering the witnesses' absence, Lee could not call them
at his uncle's house because there was no phone on the premises. He
asked his girlfriend to try to find the witnesses, but she was
unable to do so. Id., at 17. Although Lee did not know the
witnesses' whereabouts at that moment, he said he knew "in fact
they didn't go back to California" because "they [had] some
ministering ... to do" in Kansas City both Thursday and Friday
evenings. Id., at 18. He asked for "a couple hours' continuance
[to] try to locate them, because it's very valuable to my case."
Ibid. Defense counsel subsequently moved for a continuance until
the next morning, to gain time to enforce the subpoenas he had
served on the witnesses. Id., at 20. The trial judge responded that
he could not hold court the next day because "my daughter is going
to be in the hospital all day ... [s]o I've got to stay with her."
Ibid.
and defense counsel, who reminded him that the instruction was
no longer necessary. Tr. 594-595.
370
After a brief further exchange between court and counsel,2 the
judge denied the continuance request. The judge observed:
"It looks to me as though the folks were here and then in effect
abandoned the defendant. And that, of course, we can't-we can't
blame that on the State. The State had absolutely nothing to do
with that. That's-it's too bad. The Court will not be able to be
here tomorrow to try the case." Id., at 22.
Counsel then asked for a postponement until Monday (the next
business day after the Friday the judge was to spend with his
daughter in the hospital). The judge denied that request too,
noting that he had another case set for trial that day. Ibid.
In a final colloquy before the jury returned to the courtroom,
defense counsel told the court he would be making a motion for
judgment of acquittal. The judge asked, "You're going to give that
to me ... orally and you'll supplement that with a written motion?"
Counsel agreed. Id., at 23.
When the jurors returned, defense counsel informed them that the
three witnesses from California he had planned to call "were here
and have gone"; further, counsel did not "know why they've gone."
Id., at 25. The defense then rested. In closing argument, Lee's
counsel returned to the alibi defense he was unable to present. "I
do apologize," he said, "I don't know what happened to my
witnesses. They're not here. Couldn't put them on on the question
of alibi." Id., at 26. The prosecutor commented on the same gap:
"Where are those alibi witnesses that [defense counsel] promised
you from opening[?] They're not here." Id., at 27.
2 Responding to the court's questions, Lee's counsel said he had
copies of the witnesses' written statements and their subpoenas.
App. 20-21. Counsel next began to describe the subpoenas. When
counsel listed Gladys Edwards, the court asked "[i]s she the
mother?" Id., at 21.
371
After deliberating for three hours, the jury convicted Lee on
both counts. He was subsequently sentenced to prison for life
without possibility of parole. Id., at 43.
The trial court later denied Lee's new trial motion, which Lee
grounded, in part, on the denial of the continuance motion. Id., at
31-32, 42. Lee, at first pro se but later represented by appointed
counsel, next filed a motion for state postconviction relief. Lee
argued, inter alia, that the refusal to grant his request for an
overnight continuance deprived him of his federal constitutional
right to a defense. Id., at 56-59.3 In his postconviction motion,
Lee asserted that the three witnesses had left the courthouse
because "an unknown person," whom he later identified as an
employee of the prosecutor's office, had told them "they were not
needed to testify." Id., at 56-58. The postconviction court denied
the motion, stating that under Missouri law, an allegedly improper
denial of a continuance fits within the category "trial error," a
matter to be raised on direct appeal, not in a collateral challenge
to a conviction. Id., at 70.
Lee's direct appeal and his appeal from the denial of
postconviction relief were consolidated before the Missouri Court
of Appeals. See Mo. Sup. Ct. Rule 29.15(l) (1994). There, Lee again
urged that the trial court's refusal to continue the case overnight
denied him due process and the right to put on a defense. App.
90-95. In response, the State argued for the first time that Lee's
continuance request had a fatal procedural flaw. Id., at 110-115.
In particular, the State contended that Lee's application failed to
comply with Missouri Supreme Court Rule 24.10 (Rule 24.10), which
lists the showings required in a continuance request based on
3 Missouri procedure at the time required Lee to file his
postconviction motion in the sentencing court shortly after he
filed his notice of direct appeal. See Mo. Sup. Ct. Rule 29.15(b)
(1994) (requiring motion to be made within 30 days of filing of
court transcript in appellate court considering direct appeal). The
direct appeal was "suspended" while the trial court considered the
postconviction motion. See Rule 29.15(l).
372
the absence of witnesses.4 By the State's reckoning, Lee's
request did not show the materiality of the California witnesses'
testimony or the grounds for believing that the witnesses could be
found within a reasonable time; in addition, the prosecution urged,
Lee failed to "testify that the witnesse[s'J absence was not due to
his own procurement." App.113.
The Missouri Court of Appeals affirmed Lee's conviction and the
denial of postconviction relief. State v. Lee, 935 S. W. 2d 689
(1996); App. 123-131. The appellate court first noted that Lee's
continuance motion was oral and therefore did not comply with
Missouri Supreme Court Rule 24.09 (Rule 24.09), which provides that
such applications shall be in written form, accompanied by an
affidavit. App. 126-127.5
4 Rule 24.10 reads:
"Misdemeanors or Felonies-Application for a Continuance on
Account of Absence of Witnesses Shall Show What
"An application for a continuance on account of the absence of
witnesses or their evidence shall show:
"(a) The facts showing the materiality of the evidence sought to
be obtained and due diligence upon the part of the applicant to
obtain such witness or testimony;
"(b) The name and residence of such witness, if known, or, if
not known, the use of diligence to obtain the same, and also facts
showing reasonable grounds for belief that the attendance or
testimony of such witness will be procured within a reasonable
time;
"(c) What particular facts the affiant believes the witness will
prove, and that he knows of no other person whose evidence or
attendance he could have procured at the trial, by whom he can
prove or so fully prove the same facts;
"(d) That such witness is not absent by the connivance, consent,
or procurement of the applicant, and such application is not made
for vexation or delay, but in good faith for the purpose of
obtaining a fair and impartial trial.
"If the court shall be of the opinion that the affidavit is
insufficient it
shall permit it to be amended." 5 Rule 24.09 reads:
"Misdemeanors or Felonies-Application for Continuance-How Made
"An application for a continuance shall be made by a written
motion
accompanied by the affidavit of the applicant or some other
credible person
373
"Thus," the Court of Appeals said, "the trial court could have
properly denied the motion for a failure to comply with Rule
24.09." Id., at 127. Even assuming the adequacy of Lee's oral
motion, the court continued, the application "was made without the
factual showing required by Rule 24.10." Ibid. The court did not
say which components of Rule 24.10 were unsatisfied. "When a denial
to grant a motion for continuance is based on a deficient
application," the Court of Appeals next said, "it does not
constitute an abuse of discretion." Ibid. Lee's subsequent motions
for rehearing and transfer to the Missouri Supreme Court were
denied.
In January 1998, Lee, proceeding pro se, filed an application
for writ of habeas corpus in the United States District Court for
the Western District of Missouri. Id., at 132. Lee once again
challenged the denial of his continuance motion. Id., at 147-152.
He appended affidavits from the three witnesses, each of whom swore
to Lee's alibi; sister, mother, and stepfather alike stated that
they had left the courthouse while the trial was underway because a
court officer told them their testimony would not be needed that
day. Id., at 168-174.6 Lee maintained that the State had engineered
the witnesses' departure; accordingly, he as-
setting forth the facts upon which the application is based,
unless the adverse party consents that the application for
continuance may be made orally."
6 The witnesses' accounts of their departure from the courthouse
were as follows:
Laura Lee: "[T]hose people in Missouri told us we could leave
because OUR TESTIMONY would not be needed until the next day." App.
169.
Gladys Edwards: "[T]he officer of the court came and told us
that the prosecutor stated that the state[']s case will again take
up the remainder of that day. That [o]ur testimony will not be
needed until the following day, that we could leave until the
following day. He ... told [u]s not to worry, the Judge knows [w]e
came to testify, they have [o]ur statements, and the trial will not
be over until we testify. So at those instructions we left." Id.,
at 172.
James Edwards: "[W]hile at the [c]ourthouse, we were told by an
officer of the court that [o]ur testimony would not be needed until
the following day, we were excused until then." Id., at 174.
374
serted that prosecutorial misconduct, not anything over which he
had control, prompted the need for a continuance. Id., at 148,
155-156.
The District Court denied the writ. No. 98-0074-CV-W6-P (WD Mo.,
Apr. 19, 1999), App. 212-218. The witnesses' affidavits were not
cognizable in federal habeas proceedings, the court held, because
Lee could have offered them to the state courts but failed to do
so. Id., at 215 (citing 28 U. s. C. § 2254(e) (1994 ed., Supp. V)).
The Federal District Court went on to reject Lee's continuance
claim, finding in the Missouri Court of Appeals' invocation of Rule
24.10 an adequate and independent state-law ground barring further
review. App.217.
The Court of Appeals for the Eighth Circuit granted a
certificate of appealability, limited to the question whether Lee's
"due process rights were violated by the state trial court's
failure to allow him a continuance,"
id., at 232, and
affirmed the denial of Lee's habeas petition.
213
F.3d 1037 (2000) (per curiam). Federal review of Lee's
due process claim would be unavailable, the court correctly
observed, if the state court's rejection of that claim "'rest[ed]
... on a state law ground that is independent of the federal
question and adequate to support the judgment,' regardless of
'whether the state law ground is substantive or procedural.'" Id.,
at 1038 (quoting Coleman v. Thompson,
501 U. S. 722, 729
(1991)). "The Missouri Court of Appeals rejected Lee's claim
because his motion for a continuance did not comply with [Rules]
24.09 and 24.10," the Eighth Circuit next stated. Thus, that court
concluded, "the claim was procedurally defaulted." 213 F. 3d, at
1038.7
7 Lee had asked the federal appeals court to excuse the
procedural lapse, suggesting that trial counsel's failure to follow
Missouri's motion rules qualified as ineffective assistance of
counsel. Lee had not exhausted that claim in state court, the
Eighth Circuit responded, therefore he could not assert it in
federal habeas proceedings. 213 F. 3d, at 1038. Furthermore, the
federal appeals court ruled, Lee could not rest on a plea of
375
Chief District Judge Bennett, sitting by designation from the
District Court for the Northern District of Iowa, dissented. In his
view, Rules 24.09 and 24.10 did not supply state-law grounds
"adequate" to preclude federal review in the particular
circumstances of this case. Id., at 1041-1049.
We granted Lee's pro se petition for a writ of certiorari, 531
U. S. 1189 (2001), and appointed counsel, 532 U. S. 956 (2001). We
now vacate the Court of Appeals judgment.
II
This Court will not take up a question of federal law presented
in a case "if the decision of [the state] court rests on a state
law ground that is independent of the federal question and adequate
to support the judgment." Coleman v. Thompson,
501 U. S. 722, 729 (1991)
(emphases added). The rule applies with equal force whether the
state-law ground is substantive or procedural. Ibid. We first
developed the independent and adequate state ground doctrine in
cases on direct review from state courts, and later applied it as
well "in deciding whether federal district courts should address
the claims of state prisoners in habeas corpus actions." Ibid.
"[T]he adequacy of state procedural bars to the assertion of
federal questions," we have recognized, is not within the State's
prerogative finally to decide; rather, adequacy "is itself a
federal question." Douglas v. Alabama,
380 U. S. 415, 422
(1965).
Lee does not suggest that Rules 24.09 and 24.10, as brought to
bear on this case by the Missouri Court of Appeals, depended in any
way on federal law. Nor does he question the general applicability
of the two codified Rules. He does maintain that both
Rules-addressed initially to Missouri trial courts, but in his case
invoked only at the
"actual innocence" to escape the procedural bar because "the
factual basis for the [alibi witness] affidavits he relies on as
new evidence existed at the time of the trial and could have been
presented earlier." Id., at 1039.
376
appellate stage-are inadequate, under the extraordinary
circumstances of this case, to close out his federal,
fairopportunity-to-defend claim. We now turn to that dispositive
issue.8
Ordinarily, violation of "firmly established and regularly
followed" state rules-for example, those involved in this case-will
be adequate to foreclose review of a federal claim. James v.
Kentucky,
466 U. S.
341, 348 (1984); see Ford v. Georgia,
498 U. S. 411, 422-424
(1991). There are, however, exceptional cases in which exorbitant
application of a generally sound rule renders the state ground
inadequate to stop consideration of a federal question. See Davis
v. Wechsler,
263 U. S.
22, 24 (1923) (Holmes, J.) ("Whatever springes the State may
set for those who are endeavoring to assert rights that the State
confers, the assertion of federal rights, when plainly and
reasonably made, is not to be defeated under the name of local
practice."). This case fits within that limited category.
Our analysis and conclusion are informed and controlled by
Osborne v. Ohio,
495
U. S. 103 (1990). There, the Court considered Osborne's
objections that his child pornography conviction violated due
process because the trial judge had not required the government to
prove two elements of the alleged crime: lewd exhibition and
scienter. Id., at 107,122125. The Ohio Supreme Court held the
constitutional objections procedurally barred because Osborne had
failed to
8 Missouri argues in two footnotes to its brief that Lee's
federal claim fails for a reason independent of Rules 24.09 and
24.10, namely, that he raised only state-law objections to denial
of the continuance motion in state court. Brief for Respondent 16,
n. 2, 32, n. 7. Lee urges, in response, that his direct appeal
brief explicitly invoked due process and his right to present
witnesses in his defense as guaranteed by the Fifth, Sixth, and
Fourteenth Amendments. Reply Brief 11, n. 4 (citing App. 86-87,
90-95). Missouri did not advance its current contention in the
State's Eighth Circuit brief or in its brief in opposition to the
petition for certiorari. We therefore exercise "our discretion to
deem the [alleged] defect waived." Oklahoma City v. Tuttle,
471 U. S. 808,
816 (1985).
377
object contemporaneously to the judge's charge, which did not
instruct the jury that it could convict only for conduct that
satisfied both the scienter and the lewdness elements. Id., at
107-108, 123; see Ohio Rule Crim. Proc. 30(A) (1989) ("A party may
not assign as error the giving or the failure to give any
instructions unless he objects thereto before the jury retires to
consider its verdict, stating specifically the matter to which he
objects and the grounds of his objection.").
We agreed with the State that Osborne's failure to urge the
trial court to instruct the jury on scienter qualified as an
"adequate state-law ground [to] preven[t] us from reaching
Osborne's due process contention on that point." 495 U. S., at 123.
Ohio law, which was not in doubt, required proof of scienter unless
the applicable statute specified otherwise. Id., at 112-113, n. 9,
123. The State's contemporaneous objection rule, we observed,
"serves the State's important interest in ensuring that counsel do
their part in preventing trial courts from providing juries with
erroneous instructions." Id., at 123.
"With respect to the trial court's failure to instruct on
lewdness, however, we reach[ed] a different conclusion." Ibid.
Counsel for Osborne had made his position on that essential element
clear in a motion to dismiss overruled just before trial, and the
trial judge, "in no uncertain terms,"
id., at 124, had
rejected counsel's argument. After a brief trial, the judge charged
the jury in line with his ruling against Osborne on the pretrial
motion to dismiss. Counsel's failure to object to the charge by
reasserting the argument he had made unsuccessfully on the motion
to dismiss, we held, did not deter our disposition of the
constitutional question. "Given this sequence of events," we
explained, it was proper to "reach Osborne's [second] due process
claim," for Osborne's attorney had "pressed the issue of the
State's failure of proof on lewdness before the trial court and ...
nothing would be gained by requiring Osborne's lawyer to
378
object a second time, specifically to the jury instructions."
Ibid. In other words, although we did not doubt the general
applicability of the Ohio Rule of Criminal Procedure requiring
contemporaneous objection to jury charges, we nevertheless
concluded that, in this atypical instance, the Rule would serve "no
perceivable state interest." Ibid. (internal quotation marks
omitted).
Our decision, we added in Osborne, followed from "the general
principle that an objection which is ample and timely to bring the
alleged federal error to the attention of the trial court and
enable it to take appropriate corrective action is sufficient to
serve legitimate state interests, and therefore sufficient to
preserve the claim for review here." Id., at 125 (quoting Douglas,
380 U. S., at 422 (internal quotation marks omitted)). This general
principle, and the unusual "sequence of events" before us-rapidly
unfolding events that Lee and his counsel could not have foreseen,
and for which they were not at all responsible-similarly guide our
judgment in this case.
The dissent strives mightily to distinguish Osborne, an opinion
JUSTICES KENNEDY and SCALIA joined, but cannot do so convincingly.
In an intricate discussion of Osborne longer than the relevant
section of Osborne itself, the dissent crafts its own rationales
for the decision and sweeps away language its design cannot
accommodate as "unnecessary" and "in tension" with the rest of the
Court's analysis, post, at 399.
As attentive reading of the relevant pages of Osborne will
confirm, 495 U. S., at 123-125, we here rely not on "isolated
statements" from the opinion, post, at 396, but solidly on its
analysis and holding on "the adequacy of state procedural bars to
the assertion of federal questions." 495 U. S., at 125 (quoting
Douglas, 380 U. S., at 422 (internal quotation marks omitted)).
According to the dissent in this case, Osborne's discrete
section trained on the adequacy of state-law grounds to bar
379
federal review had two bases. First, the dissent views as
central to Osborne the "unforeseeab[ility]" of the Ohio Supreme
Court's limiting construction of the child pornography statute at
issue there, i. e., that court's addition of the "lewdness" element
on which Osborne failed to request a jury charge. Post, at 397-398;
see also post, at 399. The dissent here is characteristically
inventive. Osborne spoke not of the predictability vel non of the
Ohio Supreme Court's construction; instead, this Court asked
whether anything "would be gained by requiring Osborne's lawyer to
object a second time" on the question of lewdness, 495 U. S., at
124, and answered that question with a firm "no." Tellingly,
Osborne noted, without criticism, the Ohio Supreme Court's own
indication that the limiting construction of the child pornography
statute was not unpredictable, for it flowed from the "proper
purposes" exceptions set out by the Legislature. Id., at 113, n.
10.
Second, the dissent suggests that Osborne is enlightening only
as to "Ohio's treatment of overbreadth objections." Post, at 398.
Osborne, the dissent contends, "stands for the proposition that
once a trial court rejects an overbreadth challenge, the defendant
cannot be expected ... to lodge a foreclosed objection to the jury
instructions." Post, at 399. In truth, Ohio had no
special-to-the-First Amendment "requirement." Ibid.9 Rather, Ohio's
firmly established, generally applicable practice was a standard
contemporaneous objection rule for challenges to jury charges. See
Ohio Rule Crim. Proc. 30(A) (1989). As Osborne paradigmatically
illustrates, that Rule is unassailable in most instances, i. e., it
ordinarily serves a legitimate governmental interest; in rare
9 The discrete section of Osborne in point, Part III, cites no
First Amendment decision; it relies solely on decisions holding
asserted statelaw grounds inadequate in other contexts. See Osborne
v. Ohio,
495 U. S.
103, 122-125 (1990) (citing James v. Kentucky,
466 U. S. 341, 349
(1984); Davis v. Wechsler,
263 U. S. 22, 24 (1923);
Douglas v. Alabama,
380 U. S. 415, 421-422
(1965)).
380
circumstances, however, unyielding application of the general
rule would disserve any perceivable interest.
The asserted procedural oversights in Lee's case, his alleged
failures fully to comply with Rules 24.09 and 24.10, were first
raised more than two and a half years after Lee's trial. The two
Rules, Missouri maintains, "work together to enhance the
reliability of a trial court's determination of whether to delay a
scheduled criminal trial due to the absence of a witness." Brief
for Respondent 29 (footnote omitted) (emphasis added).
Nevertheless, neither the prosecutor nor the trial judge so much as
mentioned the Rules as a reason for denying Lee's continuance
motion.10 If either prosecutor or judge considered supplementation
of Lee's motion necessary, they likely would have alerted the
defense at the appropriate time, and Lee would have had an
opportunity to perfect his plea to hold the case over until the
next day. Rule 24.10, we note, after listing the components of a
continuance motion, contemplates subsequent perfection: "If the
court shall be of the opinion that the affidavit is insufficient it
shall permit it to be amended."
The State, once content that the continuance motion was ripe for
trial court disposition on the merits, had a second thought on
appeal. It raised Rule 24.10 as a new argument in its brief to the
Missouri Court of Appeals; even then, the State did not object to
the motion's oral form. App.107-108, 110-115. The Missouri Court of
Appeals, it seems, raised Rule 24.09's writing requirements ("a
written motion accompanied by [an] affidavit") on its own
motionY
10 By contrast, the judge specifically directed Lee's counsel to
supplement counsel's oral motion for judgment of acquittal with a
written motion. See supra, at 370.
11 The belated assertion of these Rules also explains why Lee
did not contend in his state postconviction motion that counsel was
constitutionally ineffective for failing meticulously to comply
with Rules 24.09 and 24.10. That postconviction motion had been
made and denied in the trial court before the Rules' entry into the
case when Lee proceeded on appeal. See supra, at 371, n. 3.
381
Three considerations, in combination, lead us to conclude that
this case falls within the small category of cases in which
asserted state grounds are inadequate to block adjudication of a
federal claim. First, when the trial judge denied Lee's motion, he
stated a reason that could not have been countered by a perfect
motion for continuance. The judge said he could not carry the trial
over until the next day because he had to be with his daughter in
the hospital; the judge further informed counsel that another
scheduled trial prevented him from concluding Lee's case on the
following business day. Although the judge hypothesized that the
witnesses had "abandoned" Lee,
id., at 22, he had not "a
scintilla of evidence or a shred of information" on which to base
this supposition, 213 F. 3d, at 1040 (Bennett, C. J.,
dissenting).12
12 The dissent suggests that Lee's counsel decided not to put on
the alibi defense promised in his opening statement because the
prosecution's witnesses caused that planned defense to "collaps[e]
altogether." See post, at 402. The record refutes that suggestion.
Lee's counsel knew before he promised an alibi defense in his
opening that the State planned to rebut it: The prosecutor's
opening statement-given prior to defense counsel'soutlined the
rebuttal witnesses' expected testimony. Tr.178-187. Likewise, the
prosecutor's statement that she "had in reserve other witnesses
prepared to rebut the alibi testimony," post, at 403, was part of
her opening statement, see Tr. 187. Furthermore, the alibi
witnesses would have known of Lee's sentence in an unrelated case-a
fact that the dissent suggests gave them "second thoughts" about
testifying, post, at 403-a month before they traveled to Missouri.
Tr. 25-26.
Utterly confounding are the dissent's depictions of "the
realities of trial," post, at 400, capped by the statement that
"[b]efore any careful trial judge granted a continuance in these
circumstances, he or she would want a representation that the
movant believed the missing witnesses were still prepared to offer
the alibi testimony," post, at 403. Rule 24.10, the dissent
insists, if meticulously observed, would have produced the very
thing the court "needed to grant the motion: an assurance that the
defense witnesses were still prepared to offer material testimony."
Post, at 400; see post, at 403. No motion in the immediacy of the
witnesses' sudden disappearance, however, could have provided
assurance that they were still prepared to offer material
testimony. The "careful trial judge" does not
382
Second, no published Missouri decision directs flawless
compliance with Rules 24.09 and 24.10 in the unique circumstances
this case presents-the sudden, unanticipated, and at the time
unexplained disappearance of critical, subpoenaed witnesses on what
became the trial's last day.13 Lee's predicament, from all that
appears, was one Missouri courts had not confronted before.
"[A]lthough [the rules themselves] may not [have been] novel, ...
[their] application to the facts here was." Sullivan v. Little
Hunting Park, Inc.,
396 U. S. 229, 245 (1969)
(Harlan, J., dissenting).
Third and most important, given "the realities of trial," post,
at 400, Lee substantially complied with Missouri's key Rule. As to
the "written motion" requirement, Missouri's brief in this Court
asserted: "Nothing would have prevented counsel from drafting a
brief motion and affidavit complying with Rul[e] 24.09 in longhand
while seated in the courtroom."
demand the impossible. The witnesses' absence was unexplained,
and could not be explained on the afternoon of their disappearance.
That is why an overnight continuance to locate the witnesses was so
"very valuable to [Lee's] case." See supra, at 369.
13 Missouri cites five cases as examples of the state courts'
enforcement of Rules 24.09 and 24.10 (or their predecessors) "even
in cases of exigency." Brief for Respondent 25-26. The five cases
are: State v. Gadwood, 342 Mo. 466, 479,116 S. W. 2d 42, 49 (1937)
(defendant's counsel knew, or should have known, of likelihood of
witnesses' inability to appear two days before trial); State v.
Cuckovich, 485 S. W. 2d 16, 21 (Mo. 1972) (en bane) (defendant
arrived at court on first day of trial with a letter from a doctor
explaining that witness was ill); State v. Scott, 487 S. W. 2d 528,
530 (Mo. 1972) (absent witness was not subpoenaed); State v.
Settle, 670 S. W. 2d 7, 13-14 (Mo. App. 1984) (deficient
application filed six days before trial); State v. Freeman, 702 S.
W. 2d 869, 874 (Mo. App. 1985) (absent witness had told officer
serving subpoena that she would not appear). All of these cases are
readily distinguishable; none involved the sudden and unexplained
disappearance of a subpoenaed witness in the midst of trial. The
adequacy of a state ground, of course, does not depend on an
appellate decision applying general rules to the precise facts of
the case at bar. But here, no prior decision suggests strict
application to a situation such as Lee's.
383
Brief for Respondent 30.14 At oral argument, however, Missouri's
counsel edged away from this position. Counsel stated: "I'm not
going to stand on the formality ... of a writing or even the
formality of an affidavit." Tr. of Oral Arg. 48. This concession
was well advised. Missouri does not rule out oral continuance
motions; they are expressly authorized, upon consent of the adverse
party, by Rule 24.09. And the written transcript of the brief trial
court proceedings, see supra, at 367, enabled an appellate court to
comprehend the situation quickly. In sum, we are drawn to the
conclusion reached by the Eighth Circuit dissenter: "[A]ny seasoned
trial lawyer would agree" that insistence on a written continuance
application, supported by an affidavit, "in the midst of trial upon
the discovery that subpoenaed witnesses are suddenly absent, would
be so bizarre as to inject an Alice-in-Wonderland quality into the
proceedings." 213
Regarding Rule 24.10, the only Rule raised on appeal by the
prosecution, see supra, at 371-372, the Missouri Court of Appeals'
decision was summary. Although that court did not specify the
particular components of the Rule neglected by Lee, the State here
stresses two: "Lee's counsel never mentioned during his oral motion
for continuance the testimony he expected the missing witnesses to
give"; further, he "gave the trial court no reason to believe that
the missing witnesses could be located within a reasonable time."
Brief for Respondent 31.
These matters, however, were either covered by the oral
continuance motion or otherwise conspicuously apparent on the
record. The testimony that the alibi witnesses were expected to
give had been previewed during voir dire at the outset of the
three-day trial, then detailed in defense counsel's opening
statement delivered just one day before the continuance motion.
App. 10-13; see Osborne, 495 U. S.,
14 Missouri's brief did not address the requirement that the
affidavit be notarized.
384
at 123 (defense counsel's failure to object to jury charge did
not bar consideration of federal claim where counsel had pressed
the basic objection in a motion to dismiss made immediately before
"brief" trial). Two of the prosecution's witnesses testified in
part to anticipate and rebut the alibi. Tr. 443-487. An alibi
instruction was apparently taken up at the charge conference held
less than an hour before the trial court denied the continuance
motion. See supra, at 368-369, n. 1. When defense counsel moved for
a continuance, the judge asked a question indicating his
recognition that alibi witness Gladys Edwards was Lee's mother. See
supra, at 370, n. 2.
Given the repeated references to the anticipated alibi witness
testimony each day of trial, it is inconceivable that anyone in the
courtroom harbored a doubt about what the witnesses had traveled
from California to Missouri to say on the stand or why their
testimony was material, indeed indispensable, to the defense. It
was also evident that no witness then in the Kansas City vicinity
could effectively substitute for the family members with whom Lee
allegedly stayed in Ventura, California. See Rule 24.10(a) and (c)
(movant shall show "the materiality of the evidence sought,"
"[w]hat particular facts the affiant believes the witness will
prove," and that "no other person" available to the movant could
"so fully prove the same facts").
Moreover, Lee showed "reasonable grounds for belief" that the
continuance would serve its purpose. See Rule 24.10(b). He said he
knew the witnesses had not left Kansas City because they were to
"ministe[r]" there the next two evenings; he provided their local
address; and he sought less than a day's continuance to enforce the
subpoenas for their attendance. App. 16-18.
Concerning his "diligence ... to obtain" the alibi testimony,
see Rule 24.10(a), Lee and his counsel showed: the witnesses had
voluntarily traveled from California to appear at the trial;
counsel had subpoenaed the witnesses when he
385
interviewed them in Kansas City; the witnesses had telephoned
counsel the evening before the third trial day and had agreed to
come to court that next day; the witnesses in fact were in court at
8:30 in the morning waiting in a witness room; and Lee saw them
during a recess. App. 16-18. Countering "procurement" of the
witnesses' absence by the defense, see Rule 24.10(d), Lee affirmed
that he did not know "why they left" or "where they went," and
asked for just "a couple hours' continuance [to] try to locate
them." App. 17-18.
Rule 24.10, like other state and federal rules of its genre,
serves a governmental interest of undoubted legitimacy. It is
designed to arm trial judges with the information needed to rule
reliably on a motion to delay a scheduled criminal trial. The
Rule's essential requirements, however, were substantially met in
this case. Few transcript pages need be read to reveal the
information called for by Rule 24.10. "[N]othing would [have]
be[en] gained by requiring" Lee's counsel to recapitulate in (a),
(b), (c), (d) order the showings the Rule requires. See Osborne,
495 U. S., at 124; cf. Staub v. City of Baxley,
355 U. S. 313, 319-320
(1958) (failure to challenge "specific sections" of an ordinance
not an adequate state ground barring review of federal claim when
party challenged constitutionality of entire ordinance and all
sections were "interdependent"). "Where it is inescapable that the
defendant sought to invoke the substance of his federal right, the
asserted state-law defect in form must be more evident than it is
here." James v. Kentucky, 466 U. S., at 351.15
15 The dissent, indulging in hyperbole, describes our narrow
opinion as a "comb" and "searc[h]" order to lower courts. Post, at
395. We hold, simply and only, that Lee satisfied Rule 24.1O's
essential elements. Just as in Osborne, see supra, at 377-378, we
place no burden on courts to rummage through a ponderous trial
transcript in search of an excuse for a defense counsel's lapse.
The dissent, in this and much else, tilts at a windmill of its own
invention.
386
The dissent critiques at great length Henry v. Mississippi,
379 U. S. 443
(1965), a case on which we do not rely in reaching our decision.16
See post, at 393-395, 406. This protracted exercise is a prime
example of the dissent's vigorous attack on an imaginary opinion
that bears scant, if any, resemblance to the actual decision
rendered today. We chart no new course. We merely apply Osborne's
sound reasoning and limited holding to the circumstances of this
case. If the dissent's shrill prediction that to day's decision
will disrupt our federal system were accurate, we would have seen
clear signals of such disruption in the 11 years since Osborne. The
absence of even dim distress signals demonstrates both the tight
contours of Osborne and the groundlessness of the dissent's frantic
forecast of doom. See United States v. Travers,
514 F.2d
1171, 1174 (CA2 1974) (Friendly, J.) ("Cassandra-like
predictions in dissent are not a sure guide to the breadth of the
majority's ruling").
It may be questioned, moreover, whether the dissent, put to the
test, would fully embrace the unyielding theory that it is never
appropriate to evaluate the state interest in a procedural rule
against the circumstances of a particular
16 Henry has been called "radical," post, at 393 (quoting R.
Fallon, D.
Meltzer, & D. Shapiro, Hart and Wechsler's The Federal
Courts and the Federal System 584 (4th ed. 1996)), not for pursuing
an "as applied" approach, as the dissent states, but for suggesting
that the failure to comply with an anterior procedure was cured by
compliance with some subsequent procedure. See id., at 584-585. In
Henry, the Court indicated that although there was no
contemporaneous objection at trial to the admission of evidence
alleged to have been derived from an unconstitutional search, a
directed verdict motion made at the end of the prosecution's case
was an adequate substitute. 379 U. S., at 448-449. Nothing of the
sort is involved in this case. Lee is not endeavoring to designate
some later motion, e.
g., one for a new trial, as an
adequate substitute for a continuance motion. The question here is
whether the movant must enunciate again, when making the right
motion at the right time, supporting statements plainly and
repeatedly made the days before. See supra, at 367-368. On whether
such repetition serves a legitimate state interest, Osborne, not
Henry, controls.
387
case. See post, at 393-395. If that theory holds, it would
matter not at all why the witnesses left. Even if the evidence
would show beyond doubt that the witnesses left because a court
functionary told them to go, saying their testimony would not be
needed until the next day, see supra, at 373, n. 6, Lee would lose
under the dissent's approach. And that result would be unaffected
should it turn out that the functionary acted on the instigation of
a prosecutor who knew the judge would be at the hospital with his
daughter the next day. See supra, at 369. The particular
application, never mind how egregious, would be ignored so long as
the Rule, like the mine run of procedural rules, generally serves a
legitimate state interest.
To summarize, there was in this case no reference whatever in
the trial court to Rules 24.09 and 24.10, the purported procedural
impediments the Missouri Court of Appeals later pressed. Nor is
there any indication that formally perfect compliance with the
Rules would have changed the trial court's decision. Furthermore,
no published Missouri decision demands unmodified application of
the Rules in the urgent situation Lee's case presented. Finally,
the purpose of the Rules was served by Lee's submissions both
immediately before and at the short trial. Under the special
circumstances so combined, we conclude that no adequate state-law
ground hinders consideration of Lee's federal claimP
Because both the District Court and the Court of Appeals held
Lee's due process claim procedurally barred, neither court
addressed it on the merits. We remand the case for that purpose.
See National Collegiate Athletic Assn. v.
17 In view of this disposition, we do not reach further
questions raised by Lee, i. e., whether he has shown "cause" and
"prejudice" to excuse any default, Wainwright v. Sykes,
433 U. S. 72, 90-91
(1977), or has made sufficient showing of "actual innocence" under
Schlup v. Delo,
513
U. S. 298, 315 (1995), to warrant a hearing of the kind ordered
in that case.
388
Smith,
525 U. S.
459, 470 (1999) (We ordinarily "do not decide in the first
instance issues not decided below.").
***
For the reasons stated, the judgment of the United States Court
of Appeals for the Eighth Circuit is vacated, and the case is
remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE KENNEDY, with whom JUSTICE SCALIA and JUSTICE THOMAS
join, dissenting.
The Court's decision commits us to a new and, in my view, unwise
course. Its contextual approach places unnecessary and unwarranted
new responsibilities on state trial judges, injects troubling
instability into the criminal justice system, and reaches the wrong
result even under its own premises. These considerations prompt my
respectful dissent.
I
The rule that an adequate state procedural ground can bar
federal review of a constitutional claim has always been "about
federalism," Coleman v. Thompson,
501 U. S. 722, 726
(1991), for it respects state rules of procedure while ensuring
that they do not discriminate against federal rights. The doctrine
originated in cases on direct review, where the existence of an
independent and adequate state ground deprives this Court of
jurisdiction. The rule applies with equal force, albeit for
somewhat different reasons, when federal courts review the claims
of state prisoners in habeas corpus proceedings, where ignoring
procedural defaults would circumvent the jurisdictional limits of
direct review and "undermine the State's interest in enforcing its
laws." Id., at 731.
Given these considerations of comity and federalism, a
procedural ground will be deemed inadequate only when the
389
state rule "force[s] resort to an arid ritual of meaningless
form." Staub v. City of Baxley,
355 U. S. 313, 320
(1958). Staub's formulation was imprecise, but the cases that
followed clarified the two essential components of the adequate
state ground inquiry: First, the defendant must have notice of the
rule; and second, the State must have a legitimate interest in its
enforcement.
The Court need not determine whether the requirement of Missouri
Supreme Court Rule 24.09 that all continuance motions be made in
writing would withstand scrutiny under the second part of this test
(or, for that matter, whether Lee had cause not to comply with it,
cf. infra, at 405). Even if it could be assumed, for the sake of
argument, that Rule 24.09 would not afford defendants a fair
opportunity to raise a federal claim, the same cannot be said of
Rule 24.10. The latter Rule simply requires a party requesting a
continuance on account of missing witnesses to explain why it is
needed, and the Rule serves an undoubted and important state
interest in facilitating the orderly management of trials. Other
States have similar requirements. See, e.
g., Ind. Code §
3536-7-1(b) (1993); La. Code Crim. Proc. Ann., Art. 709 (West
1981); Miss. Code Ann. § 99-15-29 (1972); Okla. Stat., Tit. 12, §
668 (1993); S. C. Rule Crim. Proc. 7(b) (1990); Tex. Code Crim.
Proc. Ann., Art. 29.06 (Vernon 1965); Vt. Rule Crim. Proc. 50(c)(1)
(1983); Wash. Rev. Code § 10.46.080 (1990). The Court's explicit
deprecation of Rule 24.10-and implicit deprecation of its many
counterparts-is inconsistent with the respect due to state courts
and state proceedings.
A
The initial step of the adequacy inquiry considers whether the
State has put litigants on notice of the rule. The Court will
disregard state procedures not firmly established and regularly
followed. In James v. Kentucky,
466 U. S. 341, 346
(1984), for example, the rule was "not always clear or closely hewn
to"; in NAACP v. Alabama ex rel. Patterson,
390
357 U. S. 449,
457 (1958), "petitioner could not fairly be deemed to have been
apprised of [the rule's] existence." As the majority acknowledges,
ante, at 367, Rule 24.10 is not in this category, for unlike the
practices at issue in James and Patterson, Rule 24.10 is codified
and followed in regular practice.
Several of the considerations offered in support of to day's
decision, however, would seem to suggest that the Court believes
Rule 24.10 was not firmly established or regularly followed at the
time of Lee's trial. For example, the majority cites the lack of
published decisions directing flawless compliance with the Rule in
the unique circumstances this case presents. Ante, at 382. While
this description of Missouri law is dubious, see, e.
g.,
State v. Scott, 487 S. W. 2d 528, 530 (Mo. 1972), the Court's
underlying, quite novel argument ignores the nature of rulemaking.
If the Court means what it says on this point, few procedural rules
will give rise to an adequate state ground. Almost every case
presents unique circumstances that cannot be foreseen and
articulated by prior decisions, and general rules like Rule 24.10
are designed to eliminate second-guessing about the rule's
applicability in special cases. Rule 24.10's plain language admits
of no exception, and the Court cites no Missouri case establishing
a judge-made exemption in any circumstances, much less
circumstances close to these. Its applicability here was clear.
The Court also ventures into new territory by implying that the
trial judge's failure to cite the Rule was meaningful, ante, at
366, 380, 387, and by noting that he did not give a reason for
denying the continuance that could have been addressed by a motion
complying with the Rule, ante, at 381. If these considerations were
significant, however, we would have relied upon them in previous
cases where the trial court's denial of the defendant's motion on
the merits was affirmed by the state appellate court because of an
uncited procedural defect. See, e.
g., James v.
Kentucky,
391
supra, at 343-344; Staub v. City of Baxley, supra, at 317318.
None of these decisions used this rationale to disregard a state
procedural rule, and with good reason. To require trial judges, as
a matter of federal law, to cite their precise grounds for decision
would place onerous burdens on the state courts, and it is well
settled that an appellate tribunal may affirm a trial court's
judgment on any ground supported by the record. See Smith v.
Phillips,
455 U. S.
209, 215, n. 6 (1982). Here, moreover, the uncited procedural
rule was designed both to "permi[t] the trial court to pass on the
merits," State v. Robinson, 864 S. W. 2d 347, 349 (Mo. App. 1993),
and to facilitate the appellate court's review of asserted due
process errors. Notwithstanding the Court's guess about the judge's
and prosecution's inner thoughts concerning the completeness of
Lee's motion, see ante, at 380, the Missouri Court of Appeals tells
us that Lee's failure to comply with the Rule is considered
consequential as a matter of state law. If Lee had complied with
Rule 24.10, the trial court might have granted the continuance or
given a different reason for denying it. The trial court, in
effect, is deemed to have relied on Rule 24.10 when it found Lee
had not made a sufficient showing.
Lee was on notice of the applicability of Rule 24.10, and the
Court appears to recognize as much. The consideration most
important to the Court's analysis, see ante, at 382, relates not to
this initial question, but rather to the second part of the
adequacy inquiry, which asks whether the rule serves a legitimate
state interest. Here, too, in my respectful view, the Court
errs.
B
A defendant's failure to comply with a firmly established and
regularly followed rule has been deemed an inadequate state ground
only when the State had no legitimate interest in the rule's
enforcement. Osborne v. Ohio,
495 U. S. 103, 124
(1990); James v. Kentucky, supra, at 349; Michigan v. Tyler,
436 U. S. 499,
512, n. 7 (1978). Most state pro-
392
cedures are supported by various legitimate interests, so
established rules have been set aside only when they appeared to be
calculated to discriminate against federal law, or, as one treatise
puts it, they did not afford the defendant "a reasonable
opportunity to assert federal rights." 16B C. Wright, A. Miller,
& E. Cooper, Federal Practice and Procedure § 4027, p. 392 (2d
ed. 1996) (hereinafter Wright & Miller). See, e. g., Douglas v.
Alabama,
380 U. S.
415, 422423 (1965) (rule requiring continuous repetition of
identical constitutional objections); Staub v. City of Baxley, 355
U. S., at 317-318 (rule requiring defendant to challenge
constitutionality of individual sections of statute); Davis v.
Wechsler,
263 U. S.
22, 24 (1923) (rule waiving jurisdictional objections upon
entry of appearance of federal defendant's successor-in
-interest).
In light of this standard, the adequacy of Rule 24.10 has been
demonstrated. Delays in criminal trials can be "a distinct reproach
to the administration of justice," Powell v. Alabama,
287 U. S. 45, 59 (1932),
and States have a strong interest in ensuring that continuances are
granted only when necessary. Rule 24.10 anticipates that at certain
points during a trial, important witnesses may not be available. In
these circumstances, a continuance may be appropriate if the movant
makes certain required representations demonstrating good cause to
believe the continuance would make a real difference to the
case.
The Court acknowledges, as it must, that Rule 24.10 does not
discriminate against federal law or deny defendants a reasonable
opportunity to assert their rights. Instead, the Rule "serves a
governmental interest of undoubted legitimacy" in "arm[ing] trial
judges with the information needed to rule reliably on a motion to
delay a scheduled criminal trial." Ante, at 385. Nor is there any
doubt Lee did not comply with the Rule, for the Missouri court's
word on that state-law question is final. See Elmendorf v. Taylor,
10 Wheat. 152, 159-160 (1825) (Marshall, C. J.). The Court's
393
acceptance of these two premises should lead it to conclude that
Lee's violation of the Rule was an adequate state ground for the
Missouri court's decision.
Yet the Court deems Lee's default inadequate because, it says,
to the extent feasible under the circumstances, he substantially
complied with the Rule's essential requirements. Ante, at 385.
These precise terms have not been used in the Court's adequacy
jurisprudence before, and it is necessary to explore their
implications. The argument is not that Missouri has no interest in
enforcing compliance with the Rule in general, but rather that it
had no interest in enforcing full compliance in this particular
case. This is so, the Court holds, because the Rule's essential
purposes were substantially served by other procedural devices,
such as opening statement, voir dire, and Lee's testimony on the
stand. These procedures, it is said, provided the court with the
information the Rule requires the motion itself to contain. Ante,
at 382-385. So viewed, the Court's substantial-compliance
terminology begins to look more familiar: It simply paraphrases the
flawed analytical approach first proposed by the Court in Henry v.
Mississippi,
379 U.
S. 443 (1965), but not further ratified or in fact used to set
aside a procedural rule until today.
Before Henry, the adequacy inquiry focused on the general
legitimacy of the established procedural rule, overlooking its
violation only when the rule itself served no legitimate interest.
See, e. g., Douglas v. Alabama, supra, at 422-423; Davis v.
Wechsler, supra, at 24. Henry was troubling, and much criticized,
because it injected an as-applied factor into the equation. See, e.
g., R. Fallon, D. Meltzer, & D. Shapiro, Hart and
Wechsler's The Federal Courts and the Federal System 584 (4th ed.
1996) (hereinafter Hart & Wechsler) (calling this element of
Henry "radical"); 16B Wright & Miller § 4028, at 394 (arguing
that Henry's approach-under which "state procedural rules may
accomplish forfeiture only if necessary to further a legitimate
state interest in the
394
actual circumstances of application to the very case before the
court"-"unduly subordinates state interests"); cf. ante, at 376
("There are ... exceptional cases in which exorbitant application
of a generally sound rule renders the state ground inadequate").
The petitioner in Henry had defaulted his Fourth Amendment claim in
state court by failing to lodge a contemporaneous objection to the
admission of the contested evidence. Despite conceding the
legitimate state interest in enforcing this common rule, the Court
vacated the state-court judgment, proposing that the default may
have been inadequate because the rule's "purpose ... may have been
substantially served by petitioner's motion at the close of the
State's evidence asking for a directed verdict." Henry v.
Mississippi, supra, at 448. The suggestion, then, was that a
violation of a rule serving a legitimate state interest may be
ignored when, in the peculiar circumstances of a given case, the
defendant utilized some other procedure serving the same
interest.
For all Henry possessed in mischievous potential, however, it
lacked significant precedential effect. Henry itself did not hold
the asserted state ground inadequate; instead it remanded for the
state court to determine whether "petitioner's counsel deliberately
bypassed the opportunity to make timely objection in the state
court." 379 U. S., at 449-453. The cornerstone of that analysis,
the deliberatebypass standard of Fay v. Noia,
372 U. S. 391, 426-434
(1963), later was limited to its facts in Wainwright v. Sykes,
433 U. S. 72,
87-88 (1977), and then put to rest in Coleman v. Thompson, 501 U.
S., at 750. Subsequent cases maintained the pre-Henry focus on the
general validity of the challenged state practice, either declining
to cite Henry or framing its holding in innocuous terms. See, e.
g., James v. Kentucky, 466 U. S., at 349; Monger v. Florida,
405 U. S. 958
(1972); see also Hart & Wechsler 585-586 (describing the
"[d]emise of Henry"); 16B Wright & Miller § 4020, at 291
("Later decisions, over a period now measured in decades,
395
are more remarkable for frequently omitting any reference to the
Henry decision than for clarifying it").
There is no meaningful distinction between the Henry Court's
analysis and the standard the Court applies today, and this
surprising reinvigoration of the case-by-case approach is contrary
to the principles of federalism underlying our habeas corpus
jurisprudence. Procedural rules, like the substantive laws they
implement, are the products of sovereignty and democratic
processes. The States have weighty interests in enforcing rules
that protect the integrity and uniformity of trials, even when "the
reason for a rule does not clearly apply." Staub v. City of Baxley,
355 U. S., at 333 (Frankfurter, J., dissenting). Regardless of the
particular facts in extraordinary cases, then, Missouri has a
freestanding interest in Rule 24.10 as a rule.
By ignoring that interest, the majority's approach invites much
mischief at criminal trials, and the burden imposed upon States and
their courts will be heavy. All requirements of a rule are, in the
rulemaker's view, essential to fulfill its purposes; imperfect
compliance is thus, by definition, not compliance at all. Yet the
State's sound judgment on these matters can now be overridden by a
federal court, which may determine for itself, given its own
understanding of the rule's purposes, whether a requirement was
essential or compliance was substantial in the unique circumstances
of any given case. Henceforth, each time a litigant does not comply
with an established state procedure, the judge must inquire, even
"in the midst of trial, ... whether noncompliance should be excused
because some alternative procedure might be deemed adequate in the
particular situation." Hart & Wechsler 585. The trial courts,
then the state appellate courts, and, in the end, the federal
habeas courts in numerous instances must comb through the full
transcript and trial record, searching for ways in which the
defendant might have substantially complied with the essential
requirements of an otherwise broken rule.
396
The Court seeks to ground its renewal of Henry's longquiescent
dictum in our more recent decision in Osborne v.
Ohio, 495
U. S., at 122-125. Though isolated statements in Osborne might
appear to support the majority's approachor, for that matter,
Henry's approach-Os borne's holding does not.
This case bears little resemblance, if any, to Osborne. The Ohio
statute in question there made it criminal to possess a photograph
of a minor in "a state of nudity." Ohio Rev. Code Ann. §
2907.323(A)(3) (Supp. 1989). In a pretrial motion to dismiss,
Osborne objected to the statute as overbroad under the First
Amendment. The state trial court denied the motion, allowed the
case to proceed, and adopted no limiting construction of the
statute when it instructed the jury on the elements of the
crime.
In his appeal to the Ohio Supreme Court, Osborne argued that the
statute violated the First Amendment for two reasons: First, it
prohibited the possession of nonlewd material; and second, it
lacked a scienter requirement. In rejecting the first contention,
the appellate court did what the trial court had not: It adopted a
limiting construction so that "nudity constitute[d] a lewd
exhibition or involve[d] a graphic focus on the genitals." State v.
Young, 37 Ohio St. 3d 249, 252, 525 N. E. 2d 1363, 1368 (1988). In
addressing Osborne's second point, the Ohio Supreme Court noted
that another Ohio statute provided a mens rea of recklessness
whenever, as was the case there, the criminal statute at issue was
silent on the question. Id., at 252-253, 525 N. E. 2d, at 1368
(citing Ohio Rev. Code Ann. § 2901.21(B) (1987)). Osborne also
argued that his due process rights were violated because the trial
court had not instructed the jury on the elements of lewdness and
recklessness that the Ohio Supreme Court had just read into the
statute. The appellate court rejected this claim on procedural
grounds, observing that Osborne "neither requested such ...
charge[s] nor objected to the instructions as given." 37 Ohio St.
3d, at 254, 258,
397
525 N. E. 2d, at 1369, 1373 (citing Ohio Rule Crim. Proc. 30(A)
(1989)).
When Osborne's case reached this Court, the parties' due process
discussion focused on the merits, not the procedural bar. "It is a
violation of due process," Osborne's brief argued, "where ... a
state supreme court adds new elements to save a statute and then
affirms the conviction." Brief for Appellant, O. T. 1989, No.
88-5986, p. 25. Ohio's response, contending that the appellate
court's limiting construction was "foreseeable," mentioned the
procedural rule in a short, conclusory paragraph. Brief for
Appellee, O. T. 1989, No. 88-5986, pp. 43-44. Against this
backdrop, we decided the asserted procedural ground was adequate to
block our assessment of the scienter claim but not the lewdness
claim. Osborne v. Ohio, supra, at 125-126. This was not the
watershed holding to day's majority makes it out to be. The
procedure invoked by the State with respect to lewdness required
defendants in all overbreadth cases to take one of two steps,
neither of which comported with established adequacy
principles.
First, Ohio's primary contention was, as we noted, "that counsel
should ... have insisted that the court instruct the jury on
lewdness" by proposing an instruction mirroring the unforeseeable
limiting construction the Ohio Supreme Court would later devise.
495 U. S., at 124. To the extent the State required defendants to
exhibit this sort of prescience, it placed a clear and unreasonable
burden upon their due process rights. Shuttlesworth v. Birmingham,
394 U. S. 147,
155-157 (1969); see also Osborne v. Ohio, supra, at 118 ("[W]here a
State Supreme Court narrows an unconstitutionally overbroad
statute, the State must ensure that defendants are convicted under
the statute as it is subsequently construed and not as it was
originally written"). Osborne might, for example, have guessed
"obscenity" rather than mere "lewdness," or "focus on the genitals"
without the additional "lewdness" option; yet according to the
State,
398
neither proposed instruction would have preserved his federal
claim. That our decision was based on this foreseeability concern
is evident from our discussion of the state court's treatment of
the scienter question. This holding was supported by an adequate
state ground, we found, because the state statute cited by the Ohio
Supreme Court "state[d] that proof of scienter is required in
instances, like the present one, where a criminal statute does not
specify the applicable mental state." 495 U. S., at 123. In other
words, while the recklessness element was foreseeable (and in fact
established by statute), the lewdness element was not.
Second, to the extent Ohio faulted the defendant for not raising
a more general objection to the jury instructions, Osborne followed
from Douglas v. Alabama, 380 U. S., at 420-423. In Douglas, the
defendant was required to repeat, again and again, the same
Confrontation Clause objection while his codefendant's confession
was read to the jury. The trial court's initial adverse ruling
foreclosed the possibility that the subsequent objections would be
sustained. Ohio's treatment of overbreadth objections raised
similar concerns. By ruling on and rejecting the pretrial
objection-at the time when overbreadth challenges are generally
made-the trial court would make its position on lewdness clear. The
case would continue on the assumption that the statute was not
overbroad and that possession of nonlewd materials could be a
criminal offense. Any evidence the defendant introduced to
establish that the photographs were not lewd would be irrelevant,
and likely objectionable on this ground. As both a logical and a
practical matter, then, the ruling at the trial's outset would
foreclose a lewdness instruction at the trial's close. Ohio's
requirement that the defendant nonetheless make some sort of
objection to the jury instructions, as we concluded, served "no
perceivable state interest." 495 U. S., at 124 (internal quotation
marks omitted). On this point, too, the Osborne Court's different
conclusion with respect to scienter is enlightening. Osborne did
not
399
argue in an appropriate pretrial motion that the other Ohio
statute supplied the recklessness element, so no ruling precluded
him from admitting evidence on mens rea or requesting a
recklessness instruction.
Osborne thus stands for the proposition that once a trial court
rejects an overbreadth challenge, the defendant cannot be expected
to predict an unforeseeable limiting construction later adopted by
the state appellate court or to lodge a foreclosed objection to the
jury instructions. That holding, of course, has no relevance to the
case at hand. Rule 24.10 does not require defendants to foresee the
unforeseeable, and no previous ruling precluded the trial court
from granting Lee's continuance motion. And though the Osborne
Court's analysis was tailored to First Amendment overbreadth
concerns, it did not adopt the majority's fact-specific approach.
Osborne's rationale would apply to all overbreadth cases without
regard to whether their facts were unique or their circumstances
were extraordinary. The majority's suggestion to the contrary
exaggerates the importance of certain language employed by the
Osborne Court. We did take note of the "sequence of events,"
id., at 124, but only because in all overbreadth cases, Ohio
procedure mandated a sequence whereby defendants were required to
predict unforeseeable limiting constructions before they were
adopted or to lodge objections foreclosed by previous rulings. We
also mentioned the trial's brevity,
id., at 123-124, but
that fleeting reference was not only unnecessary but also in
tension with the Osborne Court's analysis. The adequacy doctrine
would have dictated the same result, brief trial or no.
The Osborne decision did not lay the groundwork for today's
revival of Henry v. Mississippi. Yet even if it made sense to
consider the adequacy of state rules on a case-bycase basis, the
Court would be wrong to conclude that enforcement of Rule 24.10
would serve no purpose in this case. Erroneous disregard of state
procedural rules will be common under the regime endorsed by the
Court today, for its
400
basic assumption-that the purposes of a particular state
procedure can be served by use of a rather different oneignores the
realities of trial. The Court here sweeps aside as unnecessary a
rule that would have produced the very predicate the trial court
needed to grant the motion: an assurance that the defense witnesses
were still prepared to offer material testimony.
The majority contends that Lee compensated for any inadequacies
in his motion, even if through inadvertence, by various remarks and
observations made during earlier parts of the trial. To reach this
conclusion, the Court must construe counsel's statements with a
pronounced liberality. Even if we could assume, however, that Lee
and his lawyer provided all the required information at some point,
we could not conclude that "th[e] purpose of the ... rule" was
"substantially served," Henry v. Mississippi, 379 U. S., at 448,
or, in the terms used by to day's majority, that "[t]he Rule's
essential requirements ... were substantially met," ante, at 385.
The most critical information the Rule requires"What particular
facts the affiant believes the witness will prove"-was revealed not
at the time of the motion, but at earlier stages: voir dire,
opening statements, and perhaps, the majority speculates, the
charge conference. Ante, at 383-384. To say the essential
requirements of Rule 24.10 were met, then, is to assume the
requirement that representations be made at the time of the motion
is not central to the Rule or its objectives.
This assumption ignores the State's interest in placing all
relevant information before the trial court when the motion is
made, rather than asking the judge to rely upon his or her memory
of earlier statements. Cf. Ungar v. Sarafite,
376 U. S. 575, 589 (1964)
(test for determining whether denial of continuance violated due
process considers "particularly ... the reasons presented to the
trial judge at the time the request is denied"). The assumption
looks past the State's
401
corresponding interest in facilitating appellate review by
placing all information relevant to the continuance motion in a
single place in the record. The assumption also ignores the plain
fact that the posture of this case was far different when Lee made
his continuance motion than it was at the outset of the trial. Even
if the judge recalled the precise details of voir dire and opening
statements (as the majority believes, see ante, at 384), the
State's interest in requiring Lee to make the representations after
the prosecution rested was no less pronounced.
As the very existence of rules like Rule 24.10 indicates,
seasoned trial judges are likely to look upon continuance motions
based on the absence of witnesses with a considerable degree of
skepticism. This case was no different, for the trial judge
suspected that the witnesses had abandoned Lee. The majority is
simply wrong to suggest that no one in the courtroom harbored a
doubt about what Lee's family members would have said if they had
returned. See ibid. On the contrary, in light of the witnesses'
sudden disappearance, it is more likely that no one in the
courtroom would have had any idea what to expect.
The Court fails to recognize that the trial judge was quite
capable of distinguishing between counsel's brave promises to the
jury at various stages of the trial and what counsel could in fact
deliver when the continuance was sought. There is nothing unusual
about lawyers using hyperbole in statements to the jury but then
using careful and documented arguments when making representations
to the court in support of requests for specific rulings. Trial
judges must distinguish between the two on a daily basis. In
closing argument, for example, defense counsel told the jury:
"I'm an old man, been in this business 43 years, seen a little
of criminal cases. Never seen one as weak as this." Tr. 618.
402
Quite aside from the prosecutor's predictable response-"He said
that in the last case I tried with him too,"
id., at 620the
rhetoric was an ill fit with the routine, mechanical way defense
counsel presented his motion for acquittal, with the jury absent,
at the close of the prosecution's case. He gave not one specific
reason to grant the motion, his complete argument consisting of the
following:
"MR. McMULLIN: I'll file it. I left it in the office. There's
nothing exceptional in it. The defendant-that we move for judgment
of acquittal for the reason that the State's evidence is
insufficient as a matter of law to sustain a conviction and that
should be easily disposed of." Id., at 489.
These are the customary dynamics of trial, perhaps; but the
whole course of these proceedings served to confirm what the trial
judge told counsel at the outset of the case:
"I don't have a lot of faith in what's said in opening
statement." Id., at 173. Opening statements can be imprecise, and
are sometimes designed to force the opposition's hand or shape the
jurors' perception of events. When the time came for presentation
of the defense case, counsel faced significant obstacles in
establishing the alibi he had promised before. Indeed, it is a fair
inference to say the alibi defense had collapsed altogether. Two
witnesses with no connection to the defendants or the crime
identified Lee as the driver of the automobile used by the
passenger-gunman. Any thought that difficulties with these
eyewitnesses' identification might give Lee room to present his
alibi defense was dispelled by two additional witnesses for the
prosecution. Both had known Lee for a considerable period of time,
so the chances of mistaken identity were minimal. Both saw him in
Kansas City-not in California-on the night before the murder. He
was not only in town, they testified, but also with the shooter and
looking for the victim.
403
Faced with this and other evidence adduced by the prosecution,
defense counsel elected to open not with the alibi witnesses whose
testimony was supposed to be so critical, but rather with two
witnesses who attempted to refute a collateral aspect of the
testimony given by one of the prosecution's eyewitnesses. Only then
did the defense call the alibi witnesses, who were to testify that
Lee went to California to attend a birthday party in July 1992 and
did not return to Kansas City until October. At this point the case
was far different from what defense counsel might have hoped for at
the opening.
When Lee's witnesses were then reported missing, the judge had
ample reason to believe they had second thoughts about testifying.
All three of Lee's family members had traveled from California to
testify, but all three left without speaking to Lee or his lawyer.
Two sets of witnesses, four persons in all, had just placed Lee in
Kansas City; and the prosecution had said it had in reserve other
witnesses prepared to rebut the alibi testimony. Lee had been
sentenced to 80 years in Missouri prison for an unrelated armed
assault and robbery, and any witness who was considering perjury
would have had little inducement to take that risk-a risk that
would have became more pronounced after the prosecution's witnesses
had testified-if Lee would serve a long prison term in any event.
The judge's skepticism seems even more justified when it is noted
that six weeks later, during a hearing on Lee's motion for a new
trial, counsel still did not explain where Lee's family members had
gone or why they had left. It was not until 17 months later, in an
amended motion for postconviction relief, that Lee first gave the
Missouri courts an explanation for his family's disappearance.
Before any careful trial judge granted a continuance in these
circumstances, he or she would want a representation that the
movant believed the missing witnesses were still prepared to offer
the alibi testimony. Cf. Avery v. Ala-
404
bama,
308 U. S.
444, 446 (1940) (propriety of continuance, for the purposes of
the Fourteenth Amendment, must be "decided by the trial judge in
the light of facts then presented and conditions then existing").
If Lee and his counsel had any reason to believe his witnesses had
not abandoned him, this representation would not have been
difficult to make, and the trial judge would have had reason to
credit it. Yet defense counsel was careful at all stages to avoid
making this precise representation. In his opening statement he
said:
"We will put on three witnesses for the defense, and you will
see them and be able to evaluate them and see whether or not
they're liars or not. You can determine for yourself." App. 12.
When he moved for the continuance, Lee's counsel, consistent
with his guarded approach, would not say the witnesses would still
testify as advertised:
"THE COURT: The folks were here today. They were seen here on
this floor of the courthouse, and they apparently simply have
abandoned-
MR. McMULLIN: Well-
THE COURT:-the defendant in-although they're family, despite the
fact that they're under subpoena.
MR. McMULLIN: It looks like that, Judge. I don't know. I would-I
can neither confirm nor deny." Id., at 22.
No one-not Lee, not his attorney-stood before the court and
expressed a belief, as required by Rule 24.10, that the missing
witnesses would still testify that Lee had been in California on
the night of the murder. Without that assurance, the judge had
little reason to believe the continuance would be of any use. In
concluding that the purposes of Rule 24.10 were served by promises
made in an opening statement, the majority has ignored one of the
central purposes of the Rule.
405
In sum, Rule 24.10 served legitimate state interests, both as a
general matter and as applied to the facts of this case. Lee's
failure to comply was an adequate state ground, and the Court's
contrary determination does not bode well for the adequacy doctrine
or federalism.
II
A federal court could consider the merits of Lee's defaulted
federal claim if he had shown cause for the default and prejudice
therefrom, see Wainwright v. Sykes, 433 U. S., at 90-91, or made
out a compelling case of actual innocence, see Schlup v. Delo,
513 U. S. 298,
314-315 (1995). He has done neither.
As to the first question, Lee says the sudden disappearance of
his witnesses caused him to neglect Rule 24.10. In one sense, of
course, he is right, for he would not have requested the
continuance, much less failed to comply with Rule 24.10, if his
witnesses had not left the courthouse. The argument, though, is
unavailing. The cause component of the cause-and-prejudice analysis
requires more than a but-for causal relationship between the cause
and the default. Lee must also show, given the state of the trial
when the motion was made, that an external factor "impeded
counsel's efforts to comply with the State's procedural rule."
Murray v. Carrier,
477 U. S. 478, 488
(1986). While the departure of his key witnesses may have taken him
by surprise (and caused him not to comply with Rule 24.09's writing
requirement), nothing about their quick exit stopped him from
making a complete oral motion and explaining their absence, the
substance of their anticipated testimony, and its materiality.
Nor has Lee shown that an evidentiary hearing is needed to
determine whether "a constitutional violation has probably resulted
in the conviction of one who is actually innocent." Id., at 496. To
fall within this "narrow class of cases," McCleskey v. Zant,
499 U. S. 467,
494 (1991), Lee
406
must demonstrate "that it is more likely than not that no
reasonable juror would have convicted him in the light of the new
evidence." Schlup v. Delo, supra, at 327, 314-315. Lee would offer
the testimony of his mother, stepfather, and sister; but to this
day, almost eight years after the trial, Lee has not produced a
shred of tangible evidence corroborating their story that he had
flown to California to attend a 4-month long birthday party at the
time of the murder. To acquit, the jury would have to overlook this
problem, ignore the relatives' motive to concoct an alibi for their
kin, and discount the prosecution's four eyewitnesses. Even with
the relatives' testimony, a reasonable juror could vote to
convict.
***
"Flying banners of federalism, the Court's opinion actually
raises storm signals of a most disquieting nature." So wrote
Justice Harlan, dissenting in Henry v. Mississippi, 379 U. S., at
457. The disruption he predicted failed to spread, not because
Henry's approach was sound but because in later cases the Court,
heeding his admonition, refrained from following the course Henry
prescribed. Though the Court disclaims reliance upon Henry, it has
in fact revived that case's discredited rationale. Serious doubt is
now cast upon many state procedural rules and the convictions
sustained under them.
Sound principles of federalism counsel against this result.
I would affirm the judgment of the Court of Appeals.
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