On Monday, the Supreme Court will be hearing argument in the habeas case of Walker v. Martin.
Here's the issue: Whether a state procedural bar that prevents collateral relief for a “substantially delayed” filing does not represent an “independent and adequate state law ground" because (1) the rule is vague, and (2) the courts did not “consistently” apply the rule
This case could have a big impact. Federal courts rely upon the independent and adequate state law doctrine to deny relief on a great number of habeas claims. I am not saying that there's anything wrong with that -- it is what it is. I am just pointing out that it really is one of the big obstacles facing habeas petitioners.
The main argument to rebut this is to say that the procedural bar is either not "independent" of the federal issue (don't see that argument very often -- I also find it hard to conceptualize) or is not "adequate" to support the judgment.
This case is going to focus on the adequacy question. And to be honest, the standard for what makes a procedural bar inadequate is a bit all over the place. I guess that's what the Supreme Court could potentially clarify here. Of course, when something in habeas law gets clarified, that doesn't always work out too well for habeas petitioners.
Here, the procedural bar is that a state court habeas petition will be denied if its filing was "substantially delayed." The Ninth Circuit concluded that the rule was vague and inconsistently applied. Both descriptions are probably accurate. But are they grounds to find inadequacy?
The State, obviously, argues that they aren't. The State decided to go for broke. (And we have seen California do this in other cases -- see here) Rather than just argue that the inadequacy doctrine never looked to vagueness or inconsistent application or that the rule itself was neither of those things, the State asks the Court to adopt a new rule for inadequacy. They argue that all State procedural rules are okay if they give "fair notice" to the petitioner and the rule furthers a legitimate State interest. Then they take it one step further. They argue that the Court should create the rule that a procedural bar is presumptively valid and it should be petitioner's burden to overcome that presumption of validity. As you can see, they are really shooting for the moon. I guess a conservative court can give a State in a habeas case confidence like that.
In response, petitioner* points out that the independent and adequate doctrine is an affirmative defense that the State must assert. If they don't use it, they lose it. And the burdens on affirmative defenses are basically set in stone under the federal rules of civil procedure. So the State would be seeking a radical realignment of civil procedure rules.
*When I say petitioner, I mean the habeas petitioner. In the Supreme Court, the habeas petitioner is actually Respondent and the State, who is Respondent in the habeas case, is actually petitioner. Confusing, no? It's why I stick to the original designations.
As for the "fair notice" argument, petitioner argues that the Court has looked in the past at whether a rule was regularly followed. And consistent application is a hallmark (or better yet, a synonym) of whether a rule has been "clearly established and regularly followed" -- terms found in prior Supreme Court cases.
I think petitioner has the better argument (as I usually do). Which is what gets me worried. The more I think about it, the more I begin to understand the State's strategy here: if the law is not on your side, then ask that the law be changed! It's simplicity is pretty ingenious.
And the reason why that's a real concern here is that the adequacy rules do remain somewhat vague. I can easily see a conservative court reading the Court's prior cases in such a way to settle on the State's suggested rule.
So this case is definitely one worth watching closely.
Once again, argument is on Monday.
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