lee kemna superintendent crossroads correctional center argued october decided january petitioner lee tried murder related crime state planned alibi defense california family time murder surfaced stage proceedings although lee mother stepfather sister voluntarily came missouri testify alibi left courthouse without explanation point third day trial day defense case began lee counsel moved overnight continuance gain time find witnesses enforce subpoenas served neither trial judge prosecutor identified procedural flaw motion presentation content trial judge denied motion stating looked though witnesses effect abandoned lee daughter hospitalization prevent judge next day unavailable following business day another trial scheduled trial resumed without pause alibi witnesses testified jury found lee guilty charged sentenced prison life without possibility parole lee new trial motion grounded part denial continuance motion denied motion state postconviction relief argued inter alia refusal grant continuance motion deprived federal due process right defense direct appeal appeal denial postconviction relief consolidated missouri appeals disposed case state procedural grounds appeals held denial continuance motion proper lee counsel failed comply missouri rule requires motions writing accompanied affidavit rule sets showings movant must make gain continuance grounded witnesses absence declining consider merits lee due process plea missouri appeals affirmed conviction denial postconviction relief filed federal habeas application district denied eighth circuit affirmed ruling federal review lee due process claim unavailable state rejection claim rested grounds failure continuance motion comply rules independent federal question adequate support judgment coleman thompson held missouri rules injected case state appellate constitute state grounds adequate bar federal habeas review pp although violation firmly established regularly followed state rules ordinarily bars federal review exceptional cases exorbitant application generally sound rule renders state ground inadequate stop consideration federal question see davis wechsler case fits within limited category guided osborne ohio osborne applied general principle objection ample timely bring alleged federal error attention trial enabling take appropriate corrective action satisfies legitimate state interests therefore suffices preserve claim federal review sequence events lee case also guides judgment asserted procedural oversights lee alleged failures fully comply rules first raised two half years trial two rules missouri asserted work together enhance reliability trial determination whether delay scheduled criminal trial due absence witness yet neither prosecutor trial judge much mentioned rules reason denying lee continuance motion either done appropriate time lee opportunity perfect plea hold case next day instead state first raised rule new argument brief missouri appeals seems raised rule writing requirements motion pp three considerations combination lead conclusion asserted state grounds inadequate block adjudication lee federal claim first trial judge denied lee motion stated reason countered perfect motion continuance said carry trial next day daughter hospital informed counsel another scheduled trial prevented concluding lee case following business day although judge hypothesized witnesses abandoned lee proffered evidence supported supposition second published missouri decision directs flawless compliance rules unique circumstances case sudden unanticipated time unexplained disappearance critical subpoenaed witnesses became trial last day third important purpose rules served lee submissions immediately short trial written motion requirement rule completely rule oral continuance motions trial transcript enabled appellate comprehend situation quickly rule two rule components stressed state missouri asserted first lee counsel never mentioned oral motion testimony expected missing witnesses second lee counsel gave trial reason believe witnesses located within reasonable time matters however either covered oral continuance motion otherwise conspicuously apparent record thus rule essential requirements substantially met case nothing gained requiring lee counsel recapitulate rank order showings rule requires see osborne case therefore remanded adjudication lee due process claim merits pp vacated remanded ginsburg delivered opinion rehnquist stevens souter breyer joined kennedy filed dissenting opinion scalia thomas joined remon lee petitioner mike kemna superintendent crossroads correctional center writ certiorari appeals eighth circuit january justice ginsburg delivered opinion petitioner remon lee asserts missouri trial deprived due process refused grant overnight continuance trial lee sought continuance locate subpoenaed previously present suddenly missing witnesses key defense felony charges direct review missouri appeals disposed case state procedural ground found continuance motion defective state rules therefore declined consider merits lee plea trial denied fair opportunity present defense whether state ground dispositive missouri appeals adequate preclude federal habeas corpus review question consider decide third day trial lee convicted murder armed criminal action sole affirmative defense alibi lee maintained california staying family kansas city crimes indicted occurred lee mother stepfather sister voluntarily came missouri testify behalf sequestered courthouse start trial third day reasons unknown courthouse later day defense counsel sought present testimony discovering absence defense counsel moved continuance next morning endeavor locate three witnesses bring back trial judge denied motion stating looked though witnesses effect abandoned defendant personal reasons able next day try case furthermore another case set trial next weekday app trial resumed without pause alibi witnesses testified jury found lee guilty charged neither trial judge prosecutor identified procedural flaw presentation content lee motion continuance missouri appeals however held denial motion proper lee counsel failed comply missouri rules relied upon even mentioned trial rule requires continuance motions written form accompanied affidavit rule sets showings movant must make gain continuance grounded absence witnesses hold missouri rules injected case state appellate constitute state ground adequate bar federal habeas review caught midst murder trial unalerted procedural defect presentation defense counsel hardly expected divert attention proceedings rapidly unfolding courtroom train instead preparation written motion affidavit furthermore trial time lee moved continuance clear view information needed rule intelligently merits motion beyond doubt rule serves state important interest regulating motions continuance motions readily susceptible use delaying tactic circumstances case hold petitioner lee substantially imperfectly made basic showings rule prescribes qualifies adjudication federal due process claim asserted right defend depend formal ritual perceivable state interest osborne ohio quoting james kentucky turn quoting staub city baxley internal quotation marks omitted august reginald rhodes shot killed steven shelby public street kansas city missouri jumped passenger side waiting truck sped away rhodes pleaded guilty remon lee alleged getaway driver tried murder armed criminal action lee trial took place within span three days february planned alibi defense california family time murder surfaced stage proceedings voir dire first day trial lee defense attorney informed prospective jurors defense case defense alibi app see also ibid put evidence ca go somewhere else commit crime believe judge give instruction alibi conclusion later voir dire defense counsel identified three alibi witnesses lee mother gladys edwards lee sister laura lee lee stepfather james edwards minister planned alibi defense figured prominently counsels opening statements day two lee trial prosecutor close statement said expected alibi defense lee present testimony disprove tr defense counsel opening statement described alibi defense detail telling jury evidence show lee kansas city therefore engaged crime august app specifically defense counsel said three close family members testify lee came visit ventura california july stayed end october lee mother stepfather say picked airport start visit returned end lee sister testify lee resided four children time three affirm saw lee regularly throughout unbroken sojourn ibid prosecution case two eyewitnesses shooting identified lee driver first reginald williams admitted told lee first defense counsel taped interview rhodes lee driver tr williams said given response misunderstood question want bothered interviewer second eyewitness william sanders unable pick lee photographic array day shooting sanders identified lee driver first time months murder two witnesses rhonda shelby lynne bryant called prosecutor testified knew lee seen kansas city night murder said lee rhodes asked steven shelby murder victim state offered physical evidence connecting lee murder suggest motive defense case began third final day trial two impeachment witnesses testified morning noon counsel met trial judge chambers charge conference meeting judge apparently agreed give alibi instruction submitted lee point late morning early afternoon alibi witnesses left courthouse one lee took stand outside presence jury record responded counsel questions concerning knowledge witnesses unanticipated absence app lee oath stated gladys james edwards laura lee voluntarily traveled california testify behalf affirmed counsel representations three witnesses staying lee uncle kansas city met lee counsel received subpoenas similarly affirmed witnesses met kansas city police officer interviewed behalf prosecutor lee said seen sister mother stepfather courthouse morning later recess discovering witnesses absence lee call uncle house phone premises asked girlfriend try find witnesses unable although lee know witnesses whereabouts moment said knew fact go back california ministering kansas city thursday friday evenings asked couple hours continuance try locate valuable case ibid defense counsel subsequently moved continuance next morning gain time enforce subpoenas served witnesses trial judge responded hold next day daughter going hospital day got stay ibid brief exchange judge denied continuance request judge observed looks though folks effect abandoned defendant course ca ca blame state state absolutely nothing bad able tomorrow try case counsel asked postponement monday next business day friday judge spend daughter hospital judge denied request noting another case set trial day ibid final colloquy jury returned courtroom defense counsel told making motion judgment acquittal judge asked going give orally supplement written motion counsel agreed jurors returned defense counsel informed three witnesses california planned call gone counsel know gone defense rested closing argument lee counsel returned alibi defense unable present apologize said know happened witnesses put question alibi prosecutor commented gap alibi witnesses defense counsel promised opening deliberating three hours jury convicted lee counts subsequently sentenced prison life without possibility parole trial later denied lee new trial motion lee grounded part denial continuance motion lee first pro se later represented appointed counsel next filed motion state postconviction relief lee argued inter alia refusal grant request overnight continuance deprived federal constitutional right defense postconviction motion lee asserted three witnesses left courthouse unknown person later identified employee prosecutor office told needed testify postconviction denied motion stating missouri law allegedly improper denial continuance fits within category trial error matter raised direct appeal collateral challenge conviction lee direct appeal appeal denial postconviction relief consolidated missouri appeals see mo sup rule lee urged trial refusal continue case overnight denied due process right put defense app response state argued first time lee continuance request fatal procedural flaw particular state contended lee application failed comply missouri rule rule lists showings required continuance request based absence state reckoning lee request show materiality california witnesses testimony grounds believing witnesses found within reasonable time addition prosecution urged lee failed testify witnesse absence due procurement app missouri appeals affirmed lee conviction denial postconviction relief state lee app appellate first noted lee continuance motion oral therefore comply missouri rule rule provides applications shall written form accompanied affidavit app thus appeals said trial properly denied motion failure comply rule even assuming adequacy lee oral motion continued application made without factual showing required rule ibid say components rule unsatisfied denial grant motion continuance based deficient application appeals next said constitute abuse discretion ibid lee subsequent motions rehearing transfer missouri denied january lee proceeding pro se filed application writ habeas corpus district western district missouri lee challenged denial continuance motion appended affidavits three witnesses swore lee alibi sister mother stepfather alike stated left courthouse trial underway officer told testimony needed day lee maintained state engineered witnesses departure accordingly asserted prosecutorial misconduct anything control prompted need continuance district denied writ wd apr app witnesses affidavits cognizable federal habeas proceedings held lee offered state courts failed citing supp federal district went reject lee continuance claim finding missouri appeals invocation rule adequate independent ground barring review app appeals eighth circuit granted certificate appealability limited question whether lee due process rights violated state trial failure allow continuance affirmed denial lee habeas petition per curiam federal review lee due process claim unavailable correctly observed state rejection claim rest ed state law ground independent federal question adequate support judgment regardless whether state law ground substantive procedural quoting coleman thompson missouri appeals rejected lee claim motion continuance comply rules eighth circuit next stated thus concluded claim procedurally defaulted chief district judge bennett sitting designation district northern district iowa dissented view rules supply grounds adequate preclude federal review particular circumstances case granted lee pro se petition writ certiorari appointed counsel vacate appeals judgment ii take question federal law presented case decision state rests state law ground independent federal question adequate support judgment coleman thompson emphases added rule applies equal force whether ground substantive procedural ibid first developed independent adequate state ground doctrine cases direct review state courts later applied well deciding whether federal district courts address claims state prisoners habeas corpus actions ibid adequacy state procedural bars assertion federal questions recognized within state prerogative finally decide rather adequacy federal question douglas alabama lee suggest rules brought bear case missouri appeals depended way federal law question general applicability two codified rules maintain rules addressed initially missouri trial courts case invoked appellate stage inadequate extraordinary circumstances case close federal claim turn dispositive ordinarily violation firmly established regularly followed state rules example involved case adequate foreclose review federal claim james kentucky see ford georgia however exceptional cases exorbitant application generally sound rule renders state ground inadequate stop consideration federal question see davis wechsler holmes whatever springes state may set endeavoring assert rights state confers assertion federal rights plainly reasonably made defeated name local case fits within limited category analysis conclusion informed controlled osborne ohio considered osborne objections child pornography conviction violated due process trial judge required government prove two elements alleged crime lewd exhibition scienter ohio held constitutional objections procedurally barred osborne failed object contemporaneously judge charge instruct jury convict conduct satisfied scienter lewdness elements see ohio rule crim proc party may assign error giving failure give instructions unless objects thereto jury retires consider verdict stating specifically matter objects grounds agreed state osborne failure urge trial instruct jury scienter qualified adequate ground preven us reaching osborne due process contention point ohio law doubt required proof scienter unless applicable statute specified otherwise state contemporaneous objection rule observed serves state important interest ensuring counsel part preventing trial courts providing juries erroneous instructions respect trial failure instruct lewdness however reach ed different conclusion ibid counsel osborne made position essential element clear motion dismiss overruled trial trial judge uncertain terms rejected counsel argument brief trial judge charged jury line ruling osborne pretrial motion dismiss counsel failure object charge reasserting argument made unsuccessfully motion dismiss held deter disposition constitutional question given sequence events explained proper reach osborne second due process claim osborne attorney pressed issue state failure proof lewdness trial nothing gained requiring osborne lawyer object second time specifically jury instructions ibid words although doubt general applicability ohio rule criminal procedure requiring contemporaneous objection jury charges nevertheless concluded atypical instance rule serve perceivable state interest ibid internal quotation marks omitted decision added osborne followed general principle objection ample timely bring alleged federal error attention trial enable take appropriate corrective action sufficient serve legitimate state interests therefore sufficient preserve claim review quoting douglas internal quotation marks omitted general principle unusual sequence events us rapidly unfolding events lee counsel foreseen responsible similarly guide judgment case dissent strives mightily distinguish osborne opinion justices kennedy scalia joined convincingly intricate discussion osborne longer relevant section osborne dissent crafts rationales decision sweeps away language design accommodate unnecessary tension rest analysis post attentive reading relevant pages osborne confirm rely isolated statements opinion post solidly analysis holding adequacy state procedural bars assertion federal questions internal quotation marks omitted quoting douglas according dissent case osborne discrete section trained adequacy grounds bar federal review two bases first dissent views central osborne unforeseeab ility ohio limiting construction child pornography statute issue addition lewdness element osborne failed request jury charge post see also post dissent characteristically inventive osborne spoke predictability vel non ohio construction instead asked whether anything gained requiring osborne lawyer object second time question lewdness answered question firm tellingly osborne noted without criticism ohio indication limiting construction child pornography statute unpredictable flowed proper purposes exceptions set legislature second dissent suggests osborne enlightening ohio treatment overbreadth objections post osborne dissent contends stands proposition trial rejects overbreadth challenge defendant expected lodge foreclosed objection jury instructions post truth ohio amendment requirement rather ohio firmly established generally applicable practice standard contemporaneous objection rule challenges jury charges see ohio rule crim proc osborne paradigmatically illustrates rule unassailable instances ordinarily serves legitimate governmental interest rare circumstances however unyielding application general rule disserve perceivable interest asserted procedural oversights lee case alleged failures fully comply rules first raised two half years lee trial two rules missouri maintains work together enhance reliability trial determination whether delay scheduled criminal trial due absence witness brief respondent omitted emphasis added nevertheless neither prosecutor trial judge much mentioned rules reason denying lee continuance either prosecutor judge considered supplementation lee motion necessary likely alerted defense appropriate time lee opportunity perfect plea hold case next day rule note listing components continuance motion contemplates subsequent perfection shall opinion affidavit insufficient shall permit amended state content continuance motion ripe trial disposition merits second thought appeal raised rule new argument brief missouri appeals even state object motion oral form app missouri appeals seems raised rule writing requirements written motion accompanied affidavit three considerations combination lead us conclude case falls within small category cases asserted state grounds inadequate block adjudication federal claim first trial judge denied lee motion stated reason countered perfect motion continuance judge said carry trial next day daughter hospital judge informed counsel another scheduled trial prevented concluding lee case following business day although judge hypothesized witnesses abandoned lee scintilla evidence shred information base supposition bennett dissenting second published missouri decision directs flawless compliance rules unique circumstances case presents sudden unanticipated time unexplained disappearance critical subpoenaed witnesses became trial last lee predicament appears one missouri courts confronted lthough rules may novel application facts sullivan little hunting park harlan dissenting third important given realities trial post lee substantially complied missouri key rule written motion requirement missouri brief asserted nothing prevented counsel drafting brief motion affidavit complying rul longhand seated courtroom brief respondent oral argument however missouri counsel edged away position counsel stated going stand formality writing even formality affidavit tr oral arg concession well advised missouri rule oral continuance motions expressly authorized upon consent adverse party rule written transcript brief trial proceedings see supra enabled appellate comprehend situation quickly sum drawn conclusion reached eighth circuit dissenter ny seasoned trial lawyer agree insistence written continuance application supported affidavit midst trial upon discovery subpoenaed witnesses suddenly absent bizarre inject quality proceedings regarding rule rule raised appeal prosecution see supra missouri appeals decision summary although specify particular components rule neglected lee state stresses two lee counsel never mentioned oral motion continuance testimony expected missing witnesses give gave trial reason believe missing witnesses located within reasonable time brief respondent matters however either covered oral continuance motion otherwise conspicuously apparent record testimony alibi witnesses expected give previewed voir dire outset trial detailed defense counsel opening statement delivered one day continuance motion app see osborne defense counsel failure object jury charge bar consideration federal claim counsel pressed basic objection motion dismiss made immediately brief trial two prosecution witnesses testified part anticipate rebut alibi tr alibi instruction apparently taken charge conference held less hour trial denied continuance motion see supra defense counsel moved continuance judge asked question indicating recognition alibi witness gladys edwards lee mother see supra given repeated references anticipated alibi witness testimony day trial inconceivable anyone courtroom harbored doubt witnesses traveled california missouri say stand testimony material indeed indispensable defense also evident witness kansas city vicinity effectively substitute family members lee allegedly stayed ventura california see rule movant shall show materiality evidence sought hat particular facts affiant believes witness prove person available movant fully prove facts moreover lee showed reasonable grounds belief continuance serve purpose see rule said knew witnesses left kansas city ministe next two evenings provided local address sought less day continuance enforce subpoenas attendance app concerning diligence obtain alibi testimony see rule lee counsel showed witnesses voluntarily traveled california appear trial counsel subpoenaed witnesses interviewed kansas city witnesses telephoned counsel evening third trial day agreed come next day witnesses fact morning waiting witness room lee saw recess app countering procurement witnesses absence defense see rule lee affirmed know left went asked couple hours continuance try locate app rule like state federal rules genre serves governmental interest undoubted legitimacy designed arm trial judges information needed rule reliably motion delay scheduled criminal trial rule essential requirements however substantially met case transcript pages need read reveal information called rule othing en gained requiring lee counsel recapitulate order showings rule requires see osborne failure challenge specific sections ordinance adequate state ground barring review federal claim party challenged constitutionality entire ordinance sections interdependent inescapable defendant sought invoke substance federal right asserted defect form must evident james kentucky dissent critiques great length henry mississippi case rely reaching see post protracted exercise prime example dissent vigorous attack imaginary opinion bears scant resemblance actual decision rendered today chart new course merely apply osborne sound reasoning limited holding circumstances case dissent shrill prediction today decision disrupt federal system accurate seen clear signals disruption eleven years since osborne absence even dim distress signals demonstrates tight contours osborne groundlessness dissent frantic forecast doom see travers friendly predictions dissent sure guide breadth majority ruling may questioned moreover whether dissent put test fully embrace unyielding theory never appropriate evaluate state interest procedural rule circumstances particular case see post theory holds matter witnesses left even evidence show beyond doubt witnesses left functionary told go saying testimony needed next day see supra lee lose dissent approach result unaffected turn functionary acted instigation prosecutor knew judge hospital daughter next day see supra particular application never mind egregious ignored long rule like mine run procedural rules generally serves legitimate state interest summarize case reference whatever trial rules purported procedural impediments missouri appeals later pressed indication formally perfect compliance rules changed trial decision furthermore published missouri decision demands unmodified application rules urgent situation lee case presented finally purpose rules served lee submissions immediately short trial special circumstances combined conclude adequate ground hinders consideration lee federal district appeals held lee due process claim procedurally barred neither addressed merits remand case purpose see national collegiate athletic assn smith ordinarily decide first instance issues decided reasons stated judgment appeals eighth circuit vacated case remanded proceedings consistent opinion ordered remon lee petitioner mike kemna superintendent crossroads correctional center writ certiorari appeals eighth circuit january justice kennedy justice scalia justice thomas join dissenting decision commits us new view unwise course contextual approach places unnecessary unwarranted new responsibilities state trial judges injects troubling instability criminal justice system reaches wrong result even premises considerations prompt respectful dissent rule adequate state procedural ground bar federal review constitutional claim always federalism coleman thompson respects state rules procedure ensuring discriminate federal rights doctrine originated cases direct review existence independent adequate state ground deprives jurisdiction rule applies equal force albeit somewhat different reasons federal courts review claims state prisoners habeas corpus proceedings ignoring procedural defaults circumvent jurisdictional limits direct review undermine state interest enforcing laws given considerations comity federalism procedural ground deemed inadequate state rule force resort arid ritual meaningless form staub city baxley staub formulation imprecise cases followed clarified two essential components adequate state ground inquiry first defendant must notice rule second state must legitimate interest enforcement need determine whether requirement missouri rule continuance motions made writing withstand scrutiny second part test matter whether lee cause comply cf infra even assumed sake argument rule afford defendants fair opportunity raise federal claim said rule latter rule simply requires party requesting continuance account missing witnesses explain needed rule serves undoubted important state interest facilitating orderly management trials similar requirements see ind code la code crim proc art west miss code ann okla tit rule crim proc tex code crim proc art vernon rule crim proc rev code explicit deprecation rule implicit deprecation many counterparts inconsistent respect due state courts state proceedings initial step adequacy inquiry considers whether state put litigants notice rule disregard state procedures firmly established regularly followed james kentucky example rule always clear closely hewn naacp alabama ex rel patterson petitioner fairly deemed apprised rule existence majority acknowledges ante rule category unlike practices issue james patterson rule codified followed regular practice several considerations offered support today decision however seem suggest believes rule firmly established regularly followed time lee trial example majority cites lack published decisions directing flawless compliance rule unique circumstances case presents ante description missouri law dubious see state scott mo underlying quite novel argument ignores nature rulemaking means says point procedural rules give rise adequate state ground almost every case presents unique circumstances foreseen articulated prior decisions general rules like rule designed eliminate rule applicability special cases rule plain language admits exception cites missouri case establishing exemption circumstances much less circumstances close applicability clear also ventures new territory implying trial judge failure cite rule meaningful ante noting give reason denying continuance addressed motion complying rule ante considerations significant however relied upon previous cases trial denial defendant motion merits affirmed state appellate uncited procedural defect see james kentucky supra staub city baxley supra none decisions used rationale disregard state procedural rule good reason require trial judges matter federal law cite precise grounds decision place onerous burdens state courts well settled appellate tribunal may affirm trial judgment ground supported record see smith phillips moreover uncited procedural rule designed permi trial pass merits state robinson mo app facilitate appellate review asserted due process errors notwithstanding guess judge prosecution inner thoughts concerning completeness lee motion see ante missouri appeals tells us lee failure comply rule considered consequential matter state law lee complied rule trial might granted continuance given different reason denying trial effect deemed relied rule found lee made sufficient showing lee notice applicability rule appears recognize much consideration important analysis see ante relates initial question rather second part adequacy inquiry asks whether rule serves legitimate state interest respectful view errs defendant failure comply firmly established regularly followed rule deemed inadequate state ground state legitimate interest rule enforcement osborne ohio james kentucky supra michigan tyler state procedures supported various legitimate interests established rules set aside appeared calculated discriminate federal law one treatise puts afford defendant reasonable opportunity assert federal rights wright miller cooper federal practice procedure ed hereinafter wright miller see douglas alabama rule requiring continuous repetition identical constitutional objections staub city baxley rule waiving jurisdictional objections upon entry appearance federal defendant light standard adequacy rule demonstrated delays criminal trials distinct reproach administration justice powell alabama strong interest ensuring continuances granted necessary rule anticipates certain points trial important witnesses may available circumstances continuance may appropriate movant makes certain required representations demonstrating good cause believe continuance make real difference case acknowledges must rule discriminate federal law deny defendants reasonable opportunity assert rights instead rule serves governmental interest undoubted legitimacy arm ing trial judges information needed rule reliably motion delay scheduled criminal trial ante doubt lee comply rule missouri word question final see elmendorf taylor wheat marshall acceptance two premises lead conclude lee violation rule adequate state ground missouri decision yet deems lee default inadequate says extent feasible circumstances substantially complied rule essential requirements ante precise terms used adequacy jurisprudence necessary explore implications argument missouri interest enforcing compliance rule general rather interest enforcing full compliance particular case holds rule essential purposes substantially served procedural devices opening statement voir dire lee testimony stand procedures said provided information rule requires motion contain ante viewed terminology begins look familiar simply paraphrases flawed analytical approach first proposed henry mississippi ratified fact used set aside procedural rule today henry adequacy inquiry focused general legitimacy established procedural rule overlooking violation rule served legitimate interest see douglas alabama supra davis wechsler supra henry troubling much criticized injected factor equation see fallon meltzer shapiro hart weschsler federal courts federal system ed hereinafter hart wechsler calling element henry radical wright miller arguing henry approach state procedural rules may accomplish forfeiture necessary legitimate state interest actual circumstances application case unduly subordinates state interests cf ante exceptional cases exorbitant application generally sound rule renders state ground inadequate petitioner henry defaulted fourth amendment claim state failing lodge contemporaneous objection admission contested evidence despite conceding legitimate state interest enforcing common rule vacated judgment proposing default may inadequate rule purpose may substantially served petitioner motion close state evidence asking directed verdict henry mississippi supra suggestion violation rule serving legitimate state interest may ignored peculiar circumstances given case defendant utilized procedure serving interest henry possessed mischievous potential however lacked significant precedential effect henry hold asserted state ground inadequate instead remanded state determine whether petitioner counsel deliberately bypassed opportunity make timely objection state later limited facts wainwright sykes put rest coleman thompson subsequent cases maintained focus general validity challenged state practice either declining cite henry framing holding innocuous terms see james kentucky see also hart wechsler describing emise henry wright miller later decisions period measured decades remarkable frequently omitting reference henry decision clarifying meaningful distinction henry analysis standard applies today surprising reinvigoration approach contrary principles federalism underlying habeas corpus jurisprudence procedural rules like substantive laws implement products sovereignty democratic processes weighty interests enforcing rules protect integrity uniformity trials even reason rule clearly apply staub city baxley frankfurter dissenting regardless particular facts extraordinary cases missouri freestanding interest rule rule ignoring interest majority approach invites much mischief criminal trials burden imposed upon courts heavy requirements rule rulemaker view essential fulfill purposes imperfect compliance thus definition compliance yet state sound judgment matters overridden federal may determine given understanding rule purposes whether requirement essential compliance substantial unique circumstances given case henceforth time litigant comply established state procedure judge must inquire even midst trial whether noncompliance excused alternative procedure might deemed adequate particular situation hart wechsler trial courts state appellate courts end federal habeas courts numerous instances must comb full transcript trial record searching ways defendant might substantially complied essential requirements otherwise broken rule seeks ground renewal henry dictum recent decision osborne ohio though isolated statements osborne might appear support majority approach matter henry approach osborne holding case bears little resemblance osborne ohio statute question made criminal possess photograph minor state nudity ohio rev code ann supp pretrial motion dismiss osborne objected statute overbroad first amendment state trial denied motion allowed case proceed adopted limiting construction statute instructed jury elements crime appeal ohio osborne argued statute violated first amendment two reasons first prohibited possession nonlewd material second lacked scienter requirement rejecting first contention appellate trial adopted limiting construction nudity constitute lewd exhibition involve graphic focus genitals state young ohio addressing osborne second point ohio noted another ohio statute provided mens rea recklessness whenever case criminal statute issue silent question citing ohio rev code ann osborne also argued due process rights violated trial instructed jury elements lewdness recklessness ohio read statute appellate rejected claim procedural grounds observing osborne neither requested charge objected instructions given ohio citing ohio rule crim proc osborne case reached parties due process discussion focused merits procedural bar violation due process osborne brief argued state adds new elements save statute affirms conviction brief appellant ohio response contending appellate limiting construction foreseeable mentioned procedural rule short conclusory paragraph brief appellee pp backdrop decided asserted procedural ground adequate block assessment scienter claim lewdness claim osborne ohio supra watershed holding today majority makes procedure invoked state respect lewdness required defendants overbreadth cases take one two steps neither comported established adequacy principles first ohio primary contention noted counsel insisted instruct jury lewdness proposing instruction mirroring unforeseeable limiting construction ohio later devise see also osborne ohio supra state narrows unconstitutionally overbroad statute state must ensure defendants convicted statute subsequently construed originally written osborne might example guessed obscenity rather mere lewdness focus genitals without additional lewdness option yet according state neither proposed instruction preserved federal claim decision based foreseeability concern evident discussion state treatment scienter question holding supported adequate state ground found state statute cited ohio state proof scienter required instances like present one criminal statute specify applicable mental state words recklessness element foreseeable fact established statute lewdness element second extent ohio faulted defendant raising general objection jury instructions osborne followed douglas alabama douglas defendant required repeat confrontation clause objection confession read jury trial initial adverse ruling foreclosed possibility subsequent objections sustained ohio treatment overbreadth objections raised similar concerns ruling rejecting pretrial objection time overbreadth challenges generally made trial make position lewdness clear case continue assumption statute overbroad possession nonlewd materials criminal offense evidence defendant introduced establish photographs lewd irrelevant likely objectionable ground logical practical matter ruling trial outset foreclose lewdness instruction trial close ohio requirement defendant nonetheless make sort objection jury instructions concluded served perceivable state interest internal quotation marks omitted point osborne different conclusion respect scienter enlightening osborne argue appropriate pretrial motion ohio statute supplied recklessness element ruling precluded admitting evidence mens rea requesting recklessness instruction osborne thus stands proposition trial rejects overbreadth challenge defendant expected predict unforeseeable limiting construction later adopted state appellate lodge foreclosed objection jury instructions holding course relevance case hand rule require defendants foresee unforeseeable previous ruling precluded trial granting lee continuance motion though osborne analysis tailored first amendment overbreadth concerns adopt majority approach osborne rationale apply overbreadth cases without regard whether facts unique circumstances extraordinary majority suggestion contrary exaggerates importance certain language employed osborne take note sequence events overbreadth cases ohio procedure mandated sequence whereby defendants required predict unforeseeable limiting constructions adopted lodge objections foreclosed previous rulings also mentioned trial brevity fleeting reference unnecessary also tension osborne analysis adequacy doctrine dictated result brief trial osborne decision lay groundwork today revival henry mississippi yet even made sense consider adequacy state rules basis wrong conclude enforcement rule serve purpose case erroneous disregard state procedural rules common regime endorsed today basic assumption purposes particular state procedure served use rather different one ignores realities trial sweeps aside unnecessary rule produced predicate trial needed grant motion assurance defense witnesses still prepared offer material testimony majority contends lee compensated inadequacies motion even inadvertence various remarks observations made earlier parts trial reach conclusion must construe counsel statements pronounced liberality even assume however lee lawyer provided required information point conclude th purpose rule substantially served henry mississippi terms used today majority rule essential requirements substantially met ante critical information rule requires hat particular facts affiant believes witness prove revealed time motion earlier stages voir dire opening statements perhaps majority speculates charge conference ante say essential requirements rule met assume requirement representations made time motion central rule objectives assumption ignores state interest placing relevant information trial motion made rather asking judge rely upon memory earlier statements cf ungar sarafite test determining whether denial continuance violated due process considers particularly reasons presented trial judge time request denied assumption looks past state corresponding interest facilitating appellate review placing information relevant continuance motion single place record assumption also ignores plain fact posture case far different lee made continuance motion outset trial even judge recalled precise details voir dire opening statements majority believes see ante state interest requiring lee make representations prosecution rested less pronounced existence rules like rule indicates seasoned trial judges likely look upon continuance motions based absence witnesses considerable degree skepticism case different trial judge suspected witnesses abandoned lee majority simply wrong suggest one courtroom harbored doubt lee family members said returned see ante contrary light witnesses sudden disappearance likely one courtroom idea expect fails recognize trial judge quite capable distinguishing counsel brave promises jury various stages trial counsel fact deliver continuance sought nothing unusual lawyers using hyperbole statements jury using careful documented arguments making representations support requests specific rulings trial judges must distinguish two daily basis closing argument example defense counsel told jury old man business years seen little criminal cases never seen one weak tr quite aside prosecutor predictable response said last case tried rhetoric ill fit routine mechanical way defense counsel presented motion acquittal jury absent close prosecution case gave one specific reason grant motion complete argument consisting following mcmullin file left office nothing exceptional defendant move judgment acquittal reason state evidence insufficient matter law sustain conviction easily disposed customary dynamics trial perhaps whole course proceedings served confirm trial judge told counsel outset case lot faith said opening statement opening statements imprecise sometimes designed force opposition hand shape jurors perception events time came presentation defense case counsel faced significant obstacles establishing alibi promised indeed fair inference say alibi defense collapsed altogether two witnesses connection defendants crime identified lee driver automobile used thought difficulties eyewitnesses identification might give lee room present alibi defense dispelled two additional witnesses prosecution known lee considerable period time chances mistaken identity minimal saw kansas city california night murder town testified also shooter looking victim faced evidence adduced prosecution defense counsel elected open alibi witnesses whose testimony supposed critical rather two witnesses attempted refute collateral aspect testimony given one prosecution eyewitnesses defense call alibi witnesses testify lee went california attend birthday party july return kansas city october point case far different defense counsel might hoped opening lee witnesses reported missing judge ample reason believe second thoughts testifying three lee family members traveled california testify three left without speaking lee lawyer two sets witnesses four persons placed lee kansas city prosecution said reserve witnesses prepared rebut alibi testimony lee sentenced years missouri prison unrelated armed assault robbery witness considering perjury little inducement take risk risk became pronounced prosecution witnesses testified lee serve long prison term event judge skepticism seems even justified noted six weeks later hearing lee motion new trial counsel still explain lee family members gone left months later amended motion postconviction relief lee first gave missouri courts explanation family disappearance careful trial judge granted continuance circumstances want representation movant believed missing witnesses still prepared offer alibi testimony cf avery alabama propriety continuance purposes fourteenth amendment must decided trial judge light facts presented conditions existing lee counsel reason believe witnesses abandoned representation difficult make trial judge reason credit yet defense counsel careful stages avoid making precise representation opening statement said put three witnesses defense see able evaluate see whether liars determine app moved continuance lee counsel consistent guarded approach say witnesses still testify advertised folks today seen floor courthouse apparently simply abandoned mcmullin well defendant although family despite fact subpoena mcmullin looks like judge know neither confirm deny one lee attorney stood expressed belief required rule missing witnesses still testify lee california night murder without assurance judge little reason believe continuance use concluding purposes rule served promises made opening statement majority ignored one central purposes rule sum rule served legitimate state interests general matter applied facts case lee failure comply adequate state ground contrary determination bode well adequacy doctrine federalism ii federal consider merits lee defaulted federal claim shown cause default prejudice therefrom see wainwright sykes done neither first question lee says sudden disappearance witnesses caused neglect rule one sense course right requested continuance much less failed comply rule witnesses left courthouse argument though unavailing cause component analysis requires causal relationship cause default lee must also show given state trial motion made external factor impeded counsel efforts comply state procedural rule murray carrier departure key witnesses may taken surprise caused comply rule writing requirement nothing quick exit stopped making complete oral motion explaining absence substance anticipated testimony materiality lee shown evidentiary hearing needed determine whether constitutional violation probably resulted conviction one actually innocent fall within narrow class cases mccleskey zant lee must demonstrate likely reasonable juror convicted light new evidence schlup delo supra lee offer testimony mother stepfather sister day almost eight years trial lee produced shred tangible evidence corroborating story flown california attend long birthday party time murder acquit jury overlook problem ignore relatives motive concoct alibi kin discount prosecution four eyewitnesses even relatives testimony reasonable juror vote convict flying banners federalism opinion actually raises storm signals disquieting nature wrote justice harlan dissenting henry mississippi disruption predicted failed spread henry approach sound later cases heeding admonition refrained following course henry prescribed though disclaims reliance upon henry fact revived case discredited rationale serious doubt cast upon many state procedural rules convictions sustained sound principles federalism counsel result affirm judgment appeals footnotes lee submitted alibi instruction charge conference became apparent trial judge delivering charge began read proposed instruction interrupted prosecutor defense counsel reminded instruction longer necessary tr responding questions lee counsel said copies witnesses written statements subpoenas app counsel next began describe subpoenas counsel listed gladys edwards asked mother missouri procedure time required lee file postconviction motion sentencing shortly filed notice direct appeal see mo sup rule requiring motion made within days filing transcript appellate considering direct appeal direct appeal suspended trial considered postconviction motion see rule rule reads misdemeanors felonies application continuance account absence witnesses shall show application continuance account absence witnesses evidence shall show facts showing materiality evidence sought obtained due diligence upon part applicant obtain witness testimony name residence witness known known use diligence obtain also facts showing reasonable grounds belief attendance testimony witness procured within reasonable time particular facts affiant believes witness prove knows person whose evidence attendance procured trial prove fully prove facts witness absent connivance consent procurement applicant application made vexation delay good faith purpose obtaining fair impartial trial shall opinion affidavit insufficient shall permit amended rule reads misdemeanors felonies application continuance made application continuance shall made written motion accompanied affidavit applicant credible person setting forth facts upon application based unless adverse party consents application continuance may made orally witnesses accounts departure courthouse follows laura lee hose people missouri told us leave testimony needed next day app gladys edwards officer came told us prosecutor stated state case take remainder day ur testimony needed following day leave following day told worry judge knows came testify ur statements trial testify instructions left james edwards hile ourthouse told officer ur testimony needed following day excused lee asked federal appeals excuse procedural lapse suggesting trial counsel failure follow missouri motion rules qualified ineffective assistance counsel lee exhausted claim state eighth circuit responded therefore assert federal habeas proceedings furthermore federal appeals ruled lee rest plea actual innocence escape procedural bar factual basis alibi witness affidavits relies new evidence existed time trial presented earlier missouri argues two footnotes brief lee federal claim fails reason independent rules namely raised objections denial continuance motion state brief respondent lee urges response direct appeal brief explicitly invoked due process right present witnesses defense guaranteed fifth sixth fourteenth amendments reply brief citing app missouri advance current contention state eighth circuit brief brief opposition petition certiorari therefore exercise discretion deem alleged defect waived oklahoma city tuttle discrete section osborne point part iii cites first amendment decision relies solely decisions holding asserted grounds inadequate contexts see osborne ohio citing james kentucky davis wechsler douglas alabama contrast judge specifically directed lee counsel supplement counsel oral motion judgment acquittal written motion see supra belated assertion rules also explains lee contend state postconviction motion counsel constitutionally ineffective failing meticulously comply rules postconviction motion made denied trial rules entry case lee proceeded appeal see supra dissent suggests lee counsel decided put alibi defense promised opening statement prosecution witnesses caused planned defense collaps altogether see post record refutes suggestion lee counsel knew promised alibi defense opening state planned rebut prosecutor opening statement given prior defense counsel outlined rebuttal witnesses expected testimony tr likewise prosecutor statement reserve witnesses prepared rebut alibi testimony post part opening statement see tr furthermore alibi witnesses known lee sentence unrelated case fact dissent suggests gave second thoughts testifying post month traveled missouri tr utterly confounding dissent depictions realities trial post capped statement efore careful trial judge granted continuance circumstances want representation movant believed missing witnesses still prepared offer alibi testimony post rule dissent insists meticulously observed produced thing needed grant motion assurance defense witnesses still prepared offer material testimony post see post motion immediacy witnesses sudden disappearance however provided assurance still prepared offer material testimony careful trial judge demand impossible witnesses absence unexplained explained afternoon disappearance overnight continuance locate witnesses valuable lee case see supra missouri cites five cases examples state courts enforcement rules predecessors even cases exigency brief respondent five cases state gadwood mo defendant counsel knew known likelihood witnesses inability appear two days trial state cuckovich mo en banc defendant arrived first day trial letter doctor explaining witness ill state scott mo absent witness subpoenaed state settle mo app deficient application filed six days trial state freeman mo app absent witness told officer serving subpoena appear cases readily distinguishable none involved sudden unexplained disappearance subpoenaed witness midst trial adequacy state ground course depend appellate decision applying general rules precise facts case bar prior decision suggests strict application situation lee missouri brief address requirement affidavit notarized dissent indulging hyperbole describes narrow opinion comb searc order lower courts post hold simply lee satisfied rule essential elements osborne see supra place burden courts rummage ponderous trial transcript search excuse defense counsel lapse dissent much else tilts windmill invention henry called radical post quoting fallon meltzer shapiro hart wechsler federal courts federal system ed pursuing applied approach dissent suggesting failure comply anterior procedure cured compliance subsequent procedure see henry indicated although contemporaneous objection trial admission evidence alleged derived unconstitutional search directed verdict motion made end prosecution case adequate substitute nothing sort involved case lee endeavoring designate later motion one new trial adequate substitute continuance motion question whether movant must enunciate making right motion right time supporting statements plainly repeatedly made days see supra whether repetition serves legitimate state interest osborne henry controls view disposition reach questions raised lee whether shown cause prejudice excuse default wainwright sykes made sufficient showing actual innocence schlup delo warrant hearing kind ordered case