When a criminal judgment has been upheld by the state courts and is challenged in federal court, the petitioner often wants to make a claim that he did not make or did not make on time in the state court. The general rule is that the claim is barred by an independent state ground and cannot be reviewed in federal court, with exceptions for "cause and prejudice" or actual innocence. During the 1960s, when some state courts sometimes made up new procedural rules or gave them unforeseeable interpretations to evade civil rights requirements, the Supreme Court developed the concept of the "inadequate" state ground. In more recent years, federal habeas courts determined to evade limits on their authority have struck down state procedural rules as "inadequate" on the flimsiest of excuses. The Ninth Circuit, in particular, seems to have never met a state rule it liked.
Today's decision disapproves one of the more extreme versions of "inadequate state ground" doctrine -- the notion that a state procedural rule is "inadequate" merely because it is discretionary. The Court's own Sullivan decision, discussed here, is curiously absent from the opinion even though it says exactly that, but surely Sullivan can now be considered overruled.
Many people, including the late Charles Alan Wright, yours truly, and the Philly DA, have argued that the Court should replace the existing mix of rubrics with a straightforward requirement that state law at the time of the default need only give the defendant notice of the right way to make the objection and a reasonable opportunity to do so. The Court today said the present case, involving the highly unusual "default" of escape from jail, is not the right vehicle to decide whether to make that change. The concurrence by Justice Kennedy comes very close to accepting it. The stage is set to make that change in the next appropriate case to come along.
Let's get those certiorari petitions in, folks. Charge!