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Call For Philip Morris

The U. S. Supreme Court heard oral argument today in Philip Morris v. Williams. This is the third time this case has been to the high court. Lyle Denniston has this argument preview at SCOTUSblog. Debra Cassens Weiss has this story at ABA Journal Law News Now. CJLF's brief supporting neither party is here. Our interest in the case is in asking the Court to clean up its jurisprudence on the question of what is an "adequate" state ground for refusing to consider a federal question. The confusion in this area allows state prisoners to smuggle questions into federal habeas that they failed to raise in their state court appeals.

Mark Sherman of AP has this brief postargument story, and Lyle has this post suggesting that the Court might reconsider its earlier decision not to take up an underlying question on the merits of the case, different from the one the state court has now found procedurally barred.

Update: The transcript of the argument is available here. Notes on the argument with emphasis on the points that are particularly of interest to habeas practice follow the jump.
Stephen Shapiro argues for the cigarette company. The argument begins with discussion of what was and was not decided last time the case was in the Supreme Court and the nature of the mandate on remand.

On page 8, Shapiro invokes Lee v. Kemna, 534 U.S. 362 (2002). This habeas case is the most recent Supreme Court precedent on what is an "adequate" state ground.

On page 14, Justice Breyer says that he looked up the cases supporting the procedural rule in question (that a requested jury instruction must be "correct in all respects" before refusal is reversible error), and he thinks they do say what the plaintiff and the state court claim, sort of. On the next page, Shapiro says the cases did not give "reasonable notice" of the requirement. That is the standard CJLF argues for, with a little help from the guru, the late Charles Alan Wright.

On pages 19-20, Shapiro relies on NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964), which held that an established rule can be an inadequate ground if applied with "pointless severity."

On page 21, Justice Breyer asks, "and what is the standard I'm supposed to use to decide whether that State ground is adequate as a matter of Federal law or not?" Shapiro doesn't squarely answer the question. He talks about a state case on the underlying rule and mentions Osborne v. Ohio, 495 U.S. 103 (1990). That case, like Lee, found that the state rule served no legitimate state interest in the way it was applied in the case. That is a very elastic and dangerous standard, allowing lower federal courts to brush aside legitimate state default rules on fact-bound grounds the Supreme Court is unlikely to review. On page 24, Justice Breyer notes that the rule serves a legitimate state interest in general. Shapiro returns to the "exorbitant or unnecessarily severe application of the rule" and notes that the standard applies to criminal cases as well.

Argument of Robert Peck, for the plaintiff, begins on page 27.

On page 28, Justice Breyer says the 28 state-court precedents "are not quite as clear as I suggested." On page 29, Peck notes that the Oregon Supreme Court applied the rule in question in a capital case.  Justice Breyer is not convinced the case is on point.

On page 31, Justice Breyer notes again that the same rule would be applied in capital cases.

On page 35, Justice Stevens notes that the governing law was not clear at the time of the trial and asks if that should make any difference with regard to the default.  Peck doesn't think so, but Stevens responds, "But it does in our cause and prejudice jurisprudence." The correct answer to that response is that the cause and prejudice test is an exception to the prudential rule on habeas corpus and has no application to the jurisdictional rule on direct review. Peck doesn't seem to know that.

On page 41, Chief Justice Roberts notes the oddity of a court grappling with a difficult constitutional question on the first round of litigation and only addressing the supposedly simple state procedural question later.  The usual course is to take these issues in the opposite order.

On pages 42 and 43, Justice Breyer returns to the standard to be applied. "And now what are the words that distinguish whether the court is in essence, to be colloquial, giving everybody the runaround or whether the court is applying a -- an absolute, clear, you know, fair, standard of State law?" That is essentially the same question he asked Shapiro on page 21.  Peck's answer is equally obtuse.

On page 48, Justice Souter returns to the question of how to preclude bad faith assertions of procedural defaults by state courts on remand. "Is there any way to guard against that except by telling the State courts what the sequence is in which they have to make decisions?" Peck says mandating the order of decision by state courts would be a bad idea.  On the next page, Justice Kennedy says, "But we do that all the time in cause and prejudice cases. We do it all the time ... because of the importance of the constitutional right." It is not entirely clear what "that" is.  Surely the Supreme Court does not mandate the order of decision of issues by state courts.

On page 50, Peck says the state procedural rule is "firmly established and regularly followed," but Justice Kennedy says "it serves very little interest."  Justice Kennedy dissented in Lee, the last time the Supreme Court applied the "interest" test.

On page 51, Chief Justice Roberts suggests the Court can avoid the procedural question by deciding the case on a different substantive ground, the one they initially denied certiorari on. Yes, the "malodorous" (p. 52) problem can be avoided that way in this case, but that would not establish a uniform rule of law for all cases, which is the reason we have a Supreme Court in the first place.

On page 54, Shapiro is back for rebuttal. 

On page 56, Chief Justice Roberts asks about granting certiorari on the second question again.

On the same page, Justice Breyer opines that the state cases on the procedural default question are "not quite in point," but they are sufficiently close to negate the suggestion that the state court acted in bad faith.

So, it is not at all clear that the Court will even reach the question on which they granted certiorari. I hope they do and that the decision will clear up the standard to be applied, as Justice Breyer was clearly driving for. Stay tuned.

If you didn't get the pageboy reference, details are here.


I had no idea that this case had habeas ramifications, so many thanks for the post.

Why isn't an older due-process analysis --- a Justice Franfurter-like, 1940s-and-50s shock-the-conscience due-process analysis --- the answer to Breyer's question of how to distinguish the ol' run around from an application of state law?

Rochin is the ol' run around. Bouie v. City of Columbia is the ol' run around. Pretty much everything is else is state law, fair or not. Lee v. Kemna? Bad, but not quite the ol' run around, so Lee v. Kemna should have another look.

I found it amusing that the justices seemed to think that the lower federal courts applied a procedural-default analysis before reaching the constitutional merits of a habeas issue. The lower federal courts, of course, are supposed to save the constitutional question for last, but I've never seen a court in the Ninth Circuit actually do it that way. I can't imagine why it should be any different for state courts.

"...I've never seen a court in the Ninth Circuit actually do it that way."

Yes, but 41 states are not in the Ninth Circuit, fortunately for their people.

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