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Procedural Default, Once More

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Sometimes a state court rejects a federal claim on the ground that the claimant did not raise it in the proceeding the state provided for that purpose, but instead he wants to raise it in a later proceeding. For example, an objection that evidence is inadmissible must normally be made at trial. A defendant who says nothing as the evidence comes in and then claims on appeal that the judge committed reversible error in allowing it is generally not allowed to make that claim.

This is called the "procedural default rule," although it might also be called the "speak now or forever hold your peace" rule.

In the 1960s, some Southern state courts manipulated their rules quite shamelessly to defeat civil rights claims, making them up or giving them unforeseeable interpretations after the fact. The U.S. Supreme Court in response developed the doctrine of the "inadequate" state ground. Regrettably, the 60s jurisprudence in the area borders on incoherent, and the Court since then has not cleaned it up. We had hoped it would in Philip Morris v. Williams this term, but alas it did not. Hope springs again in Beard v. Kindler, No. 08-992, granted today.
The worst of the sorry lot of "inadequate state grounds" precedents is Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969).  The result on this point is entirely defensible, as Justice Harlan explains in his dissent, but the notion that a state ground is "inadequate" merely because it is discretionary is, at best, "unclear and confusing." Id., at 243.

The Sullivan opinion is further denounced in 16B Wright, Miller, and Cooper, Federal Practice and Procedure, ยง 4026 at 385-386, quoted on page 17 of our Philip Morris brief.

In the present case, the default rule at issue is the fugitive rule. If you escape and run while your appeal is pending, you blow off the appeal. Here is what the Third Circuit said about the "adequacy" of this rule, discussing its precedent on the issue:

After surveying decisions of Pennsylvania courts we concluded that Pennsylvania courts had discretion to hear an appeal filed by a fugitive who had been returned to custody before an appeal was initiated or dismissed. Id. at 686. Accordingly, the fugitive forfeiture rule was not "firmly established" and therefore was not an independent and adequate procedural rule sufficient to bar review of the merits of a habeas petitioner in federal court.

To say that a rule is not "firmly established" simply because a court has discretion in its application should be such an obvious non sequitur as to place this opinion firmly in the Bozo category.  It is not, though, because of Justice Douglas's opinion in Sullivan and the generally chaotic state of this area of the law. Let us hope the high court finally straightens up this mess in the coming term.

Unfortunately, it will have to do it without Justice Alito, who has apparently recused himself from this case, probably because of some involvement at an earlier stage when he was on the Third Circuit.

1 Comment

You know, even if a discretionary rule is not firmly established and therefore inadequate, a federal court, just on general principles of law, should NEVER punish a state for how it deals with a fugitive's appeal. This just seems such a basic proposition of law and justice.

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