LEE v. KEMNA, SUPERINTENDENT, CROSSROADS CORRECTIONAL CENTER
No. 00-6933
Supreme Court of the United States
Argued October 29, 2001—Decided January 22, 2002
534 U.S. 362
Bonnie I. 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
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 first-degree 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 courthousе 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
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 continuance—motions 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. 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 аn 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
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 443-487. 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
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.
“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.
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
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
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.”
The District Court denied the writ. No. 98-0074-CV-W-6-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
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
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 develoрed 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.
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 grоund 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, 122-125. The Ohio Supreme Court held the constitutional objections procedurally barred because Osborne had failed to
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, “sеrves 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
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
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
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 motion.11
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.
Regarding
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.,
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
Moreover, Lee showed “reasonable grounds for belief” that the continuance would serve its purpose. See
Concerning his “diligence . . . to obtain” the alibi testimony, see
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
To summarize, there was in this case no reference whatever in the trial court to
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. 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 “аbout 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
The Court need not determine whether the requirement of Missouri Supreme Court
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,
Several of the considerations offered in support of today‘s decision, however, would seem to suggest that the Court believes
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,
Lee was on notice of the applicability of
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-
In light of this standard, the adequacy of
The Court acknowledges, as it must, that
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 purpоses 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
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 deliberate-bypass 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,
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 soverеignty 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
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.
This case bears little resemblance, if any, to Osborne. The Ohiо statute in question there made it criminal to possess a photograph of a minor in “a state of nudity.”
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
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 today‘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,
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
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.
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-by-case basis, the Court would be wrong to conclude that enforcement of
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 pronounсed 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 today‘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
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
As the very existence of rules like
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.
“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.
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-
“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
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
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
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“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.