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Procedural Default

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Today the US Supreme Court heard argument in Walker v. Martin, on whether a federal court can hear a claim that state courts refused to hear because the petitioner presented it way too late.  See prior post here.  CJLF brief here.  Argument transcript here.  The rule applied by the Ninth Circuit is that the state procedural ground is "inadequate," and the federal court can disregard it, unless the state establishes that the rule is "regularly followed."

A number of points in the argument are encouraging.  Several justices seemed to understand that if a court denies relief on the merits rather than invoking a procedural default rule, that is not a failure to invoke the rule or something to be held against the state.  If the default rule is complex and the petition is patently meritless, the merits may be the simpler and easier ground of disposition.  Nothing wrong with that.  See, e.g., p. 29, Justice Breyer.

Several justices are also aware that no matter how vague California's definition of untimeliness is, it is obvious that the petitioner's delay in this case -- five years -- was excessive, and any lawyer would have known that a petition delayed that long would very likely be rejected.  See, e.g., p. 34, Justice Kagan, "... but five years without an explanation is -- why is that a hard question?"  See also p. 43, Justice Ginsburg.

Chief Justice Roberts seems to be the most interested in our proposal to replace "regularly followed" with "fair notice."

Several justices picked up on the perversity of a federal rule that encourages states to make rigid cut-offs rather than having flexible rules, continuing the theme from Beard v. Kindler last term.  See pp. 46-48, Justices Breyer, Sotomayor, and Scalia.

On p. 40, Justice Kagan asks, "isn't [California's rule] similar to the rule that governed Federal habeas review prior to AEDPA? A similar kind of delay standard, whatever 'delay' means?" Yep. Cf. CJLF brief, pp. 26-27. On page 47, defense counsel finds himself in the odd position of favorably comparing a provision of AEDPA that the defense bar "screamed and yelled" about at the time.

Look for a decision in late winter to early spring next year.

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Only a pretty strong statement from the Court is going to get the job done here. The Ninth needs a serious correction here. I hope that the conservatives don't water down the opinion to attract votes.

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