Go to:	Argument - Part I. A. - I. B.	Case Menu	Briefs Menu

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) ⁽¹⁾ is a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the constitutional protections of the accused into balance with the rights of the victim and of society to rapid, efficient, and reliable determination of guilt and swift execution of punishment.

In the present case, petitioner has asked this Court to declare a Missouri state procedural rule "inadequate" to support the state court's judgment. The test of adequacy that petitioner asks this Court to use would cause widespread disregard of state rules of procedure in federal habeas cases. The resulting destructive impact on the finality of criminal judgments and the integrity of the state's judicial process would be contrary to the interests CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

Steve Shelby was murdered on August 27, 1992, in Kansas City, Missouri. Witnesses identified Reginald Rhodes as the triggerman and petitioner Remon Lee as the getaway driver. J. A. 124-125 (state appellate court opinion, unpublished). Rhodes pled guilty. J. A. 38. Three members of Lee's family were going to testify that he was in California with them on the day of the murder, but when the time came for them to testify, they could not be located. J. A. 125. Defense counsel made an oral motion for a continuance, which was denied. J. A. 20-22. ⁽²⁾

Defendant was convicted of first-degree murder. J. A. 124. He moved for a new trial, claiming denial of the continuance was error but giving no explanation for the witnesses' disappearance and claiming no federal constitutional violation. J. A. 31-32. The trial court entered judgment. J. A. 42-43.

While the direct appeal was pending, Lee moved for post-conviction relief in the trial court. That court appointed counsel, who filed an amended motion. J. A. 68. The court denied relief. J. A. 67. On the issue of denial of the continuance, the court held this was a question for the direct appeal, not post-conviction. J. A. 70.

The Missouri Court of Appeals affirmed both the conviction and the denial of post-conviction relief. J. A. 122.

On the continuance issue, the court first noted that the motion was not in writing accompanied by an affidavit, and there was "no indication of the State's consent to this deviation, as is required by [Missouri Supreme Court] Rule 24.09." J. A. 126-127. However, the court went on to "assum[e] arguendo that the oral motion was sufficient" but held "appellant's argument still fails." J. A. 127. The motion failed to set out the required elements under Missouri Supreme Court Rule 24.10, and this was sufficient to sustain the denial on appeal. J. A.127 (citing Statev.Morris, 873 S. W. 2d 858, 871 (Mo. App. 1994)).

Petitioner filed his federal habeas petition on January 16, 1998. J. A. 132. The continuance issue was Ground 6. J. A. 213. Petitioner submitted affidavits from his three alibi witnesses stating that they had left the courthouse the day of the trial because a court officer had told them they would not be needed until the next day, J. A. 172, 174, or, in one affidavit, simply that "those people in Missouri" had said so. J. A. 169. The District Court found that 28 U. S. C. §2254(e)(2) applied to these allegations. J. A. 215. That subsection forbids an evidentiary hearing when petitioner failed to develop the factual basis of his claim in state court, with certain exceptions. The court noted that the factual basis, statements of his own family, was available to petitioner at all times, and that none of the exceptions applied. J. A. 215.

The District Court held that the claim was procedurally defaulted. J. A. 217. The District Court also denied petitioner's Rule 60(b) motion and a certificate of appealability. J. A. 231. The Court of Appeals granted a certificate of appealability limited to "the question of whether appellant's due process rights were violated by the state trial court's failure to allow him a continuance." J. A. 232.

The Court of Appeals held that the claim was procedurally defaulted. Lee v. Kemna, 213 F. 3d 1037, 1038 (CA8 2000) (per curiam), J. A. 234. Immediately preceding this holding is a quote from Coleman v. Thompson, 501 U. S. 722, 729 (1991), noting the requirements that the state procedural ground be adequate and independent, so this holding constitutes a rejection of the dissent's claim that the state ground was inadequate. The dissenting judge concluded, on the other hand, "The circumstances in which Lee moved for a continuance make it particularly unlikely that he could be deemed to have been apprised of the applicability [of] Rules 24.09 and 24.10." Id., at 1045, J. A. 247 (emphasis added). The full Eighth Circuit denied rehearing en banc, two judges dissenting. J. A. 258.

SUMMARY OF ARGUMENT

This Court has used a variety of phrases over many years to describe when a state ground is "adequate" or "inadequate" to preclude federal court review of an issue. These phrases form a haphazard patchwork that has drawn considerable scholarly criticism. A coherent formulation, which takes into account the underlying policies and is consistent with the results of nearly all the precedents, is both desirable and possible.

The correct rule, amicus submits, is one along the lines proposed by the late Professor Charles Alan Wright, et al. That is, the claimant should have notice that the rule exists and applies to his situation and should have a reasonable opportunity to present his federal claim. See 16B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4027, pp. 286-287, 392 (2d ed. 1996).

This formulation would give the states the proper latitude to form and enforce their own consistent set of procedural rules for the presentation of all claims, state and federal. At the same time, it would enable the federal courts to step in when state rules are manipulated to evade federal law, to discriminate against federal rights, or to facilitate invidious discrimination against disfavored groups.

Implications from previous cases that state rules must be "strict" or that they cannot be "discretionary" should be expressly repudiated. These statements create perverse incentives for states to create harsh regimes of rigid procedural defaults and to discourage needed exceptions when justice requires them.

This formulation is consistent with the results of all the major precedents except Henry v. Mississippi. That case was wrongly decided at the time, and it was also based on since-overruled precedent. Henry has little value as precedent and should not prevent the formulation of a coherent standard.

Under any standard, state decisions which skip past a procedural default issue to deny, rather than grant, relief on the merits should not be deemed to be a failure to enforce the rule. Such action does open the individual case to federal review on the merits, but it does not detract from the procedural rule. As both this Court and Congress have noted, it is occasionally more efficient to skip a knotty procedural question and deny a patently meritless claim on the merits. States should not be penalized for doing the same.

	Beginning of this file	Argument - Part I. A. - I. B.	Case Menu

1. This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

2. Further details on the circumstances of the motion are provided in the Brief for the States of Nebraska et al. as Amici Curiae.