Habeas Corpus - What just happened?

I read through the oral argument in Beard last night.  It was pretty tragic.  The transcript of the argument is available here.

Why do I describe it as tragic?  Well, as I mentioned yesterday, the Court granted cert. on the issue of "Is a state procedural rule automatically “inadequate” under the adequate-state-grounds doctrine - and therefore unenforceable on federal habeas corpus review - because the state rule is discretionary rather than mandatory?"

During petitioner's argument, counsel for petitioner CONCEDED that, if this is what the circuit court held, then the circuit court was wrong and the decision needed to be vacated.  That's tragic. 

So the debate ended up being about the far more mundane question of whether the circuit court had really held that the state court's change from a discretionary to a mandatory procedural bar during the pendency of petitioner's criminal case rendered the procedural bar not "firmly established."  Boring.

I guess it's a good lesson in lawyering.  Counsel for petitioner did not waste time fighting on an issue that he probably had no chance of winning and instead went straight for the best argument to preserve the lower court victory.  Can't blame him for that. 

But I do wonder how the Supreme Court is going to handle the main issue.  If they agree with the State (or, as referred to in the argument, "The Commonwealth") about how to read the circuit court's decision, then the analysis will only need to be one paragraph long.  Actually, it only needs to be one sentence long -- Because both sides agrees that the circuit court was wrong, we are vacating that decision.  Obviously, some guidance beyond that will be required.  It seems that everybody agreed that a discretionary rule may not necessarily represent a procedural bar if it is not consistently applied.  So the circuit court will have to decide upon that question.

On the other hand, if the Court agrees with petitioner as to how to read the circuit court's opinion, then the question on which cert. was granted becomes dicta.  Tragic.