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How Broad is Martin, Really?

How much of a change is the Martin decision, really?  After reading it over some more, I am even more firmly convinced that this is a major step forward.  Between last term's Beard v. Kindler decision and this one, the use of "inadequate state grounds" as a weapon for wholesale gumming up of the habeas works has been severely restricted.

Many times, over many cases, I have urged the high court to scrap the "firmly established and regularly followed" rubric and adopt fair notice and a reasonable opportunity to be heard instead, relying heavily on Charles Alan Wright's treatise.  This proposal alarmed the Politically Correct, and in the Martin case it produced an opposing brief from an ad hoc group modestly self-designated "Federal Courts Scholars."

As soon as I saw the opinion was unanimous and authored by Justice Ginsburg, I knew that the full sweep of my admittedly audacious proposal had not been accepted.  How much did the Justices who would have favored my proposal have to yield to achieve unanimity?  Not much.

At the bottom of page 7, the opinion restates the "firmly established and regularly followed" rubric.  But what does it take to qualify?  Nowhere near as much as the Ninth Circuit thought until today.
Announcement of the rule in state supreme court case law is enough to be firmly established.  Nearly all of the rules we want to enforce are established either by case law, by formal rules of court, or by statutes, and the latter two are certainly firm enough.  What other grounds can be invoked to say the rule is not "firmly established"?

Vagueness of the wording?  Nope.  As noted in CJLF's brief, the federal courts' own pre-AEDPA timeliness rule was as vague as they come. Quoting Kindler, the Court notes the strangeness of declaring a state rule inadequate on that ground while enforcing the federal court's own equally vague rule.

How about "regularly followed"?  This was the Ninth's favorite.  The habeas process was spun off into wasteful collateral litigation, picking over the state courts' enforcement of their own rules to see if they were applied in a uniform manner, with the bar imposed and the merits not decided (or decided only in the alternative) every time or nearly so.

Justice Ginsburg blows this theory to smithereens.  It is perfectly okay for the state court to deny one petition as untimely and another on the merits, comparing that practice to the Supreme Court's own rule that the performance and prejudice prongs of the ineffective assistance standard can be decided in either order.  "We see no reason to reject California's time bar simply because a court may opt to bypass the Clark/Robbins assessment and summarily dismiss a petition on the merits, if that is the easier path."

How about picking out individual cases that appear to be inconsistent applications of the rule?  Nope.  Some variation is the inevitable result of having a discretionary rule, which Kindler said was okay and Justice Ginsburg notes is better for defendants overall.  "A discretionary rule ought not be disregarded automatically upon a showing of seeming inconsistencies.  Discretion enables a court to home in on case-specific considerations and to avoid the harsh results that sometimes attend consistent application of an unyielding rule."

So where is the requirement of Hathorn v. Lovorn, relied on by the self-designated Scholars "to make certain that state courts do not 'avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims'"?   Missing and presumed dead. 

So what is an inadequate state ground?  Well, there is "impos[ing] novel and unforeseeable requirements," quoting Wright, Miller, and Cooper, exactly what was proposed in the "fair notice" prong of my reformulation.  Also, there is discriminating against federal claims, which I have also noted as an exception, although it is one that does not happen any more.  I haven't seen such a case since the sixties.

Then there is Lee v. Kemna, a 2002 decision written by Justice Ginsburg over a strong dissent by Justice Kennedy.  This case is relegated to a footnote.  The opinion describes it thusly:  "This Court held inadequate to bar federal review a state court's persnickety application of a rule detailing formal requirements for continuance motions."  Instead of my "reasonable opportunity" exception, we have the "persnickety application" exception, as it shall henceforth be known.  I'm okay with that.

In the Ninth Circuit, declaring state rules inadequate has been the norm and respecting them has been the exception.  This decision should turn that practice completely around.  California's timeliness bar has been specifically upheld.  Its successive petition bar stands on similar ground.  The wasteful collateral litigation of micro-examination of state courts' applications of their own rules should dry up and blow away.  If the Ninth (or the Sixth) chooses to engage in "massive resistance," we should be able to get them a few more "badges of honor" in the form of unanimous, summary reversals by the Supreme Court.

Between Martin and Harrington v. Richter, this is a banner year for habeas reform.  The fact that both decisions were issued without dissent makes it all the more remarkable.

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