UPDATED BELOW
The Supreme Court issued its opinion in Beard v. Kindler today. The opinion is available here and was written by Chief Judge Roberts.
Here's the holding:
We hold that a discretionary state procedural rule canserve as an adequate ground to bar federal habeas review.Nothing inherent in such a rule renders it inadequate for purposes of the adequate state ground doctrine. To the contrary, a discretionary rule can be “firmly established”and “regularly followed”—even if the appropriate exerciseof discretion may permit consideration of a federal claimin some cases but not others. See Meltzer, State Court Forfeitures of Federal Rights, 99 Harv. L. Rev. 1128, 1140(1986) (“[R]efusals to exercise discretion do not form animportant independent category under the inadequatestate ground doctrine”).
Based on what we learned from the argument, the opinion is not surprising. Petitioner conceded this at the argument and the Court noted that in the opinion -- "We take our holding in this case to be uncontroversial—so uncontroversial, in fact, that both parties agreed to the point before this Court."
The Court also declined a request from Respondent, which was joined in an amicus brief by a conservative legal organization, to alter the law on inadequacy to make it worse for petitioners. The reasoning why is a bit ambiguous though. Roberts states, "The procedural default at issue here—escape from prison—is hardly a typical procedural default, making this case an unsuitable vehicle for providing broad guidance on the adequate state ground doctrine."
This could be read as a suggestion that, in an appropriate case, the Supreme Court would agree to entertain such a request. Do the conservative members of the Court have an unstated agenda here? Could be. I mean, why even put it in the opinion if the Court was not entertaining the idea. Pretty scary. Not sure why the "liberal" members of the Court would sign on to such a suggestion.
UPDATE: In my original post, I neglected to mention that there was a concurring opinion from Kennedy, joined by Thomas. After reading it, I guess the agenda is not so secret after all. In the opinion, Kennedy would like to restrict the review of whether a state rule was adequate to only two situations: (1) whether a rule was novel that had not been applied before; and (2) whether a rule was applied in order to "evad[e] compliance with a federal standard."
That would be a severe restriction of what constitutes adequacy. As Roberts acknowledged in the main opinion, "We have framed the adequacy inquiry by asking whether the state rule in question was '"firmly established and regularly followed."'" Adequacy is not just about "novelty" and whether there was some bad faith on the part of the state.
For now, the rules remain the same. However, the future does not look good. If the only right-leaning Kennedy is willing to take this position, this could very well be the law some day.
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