The Supreme Court issued its opinion today in Walker v. Martin. The Court (once again) reversed the Ninth Circuit's conclusion that a California procedural rule did not represent and independent and adequate state law ground barring habeas review. The unanimous opinion, written by Ginsburg, is here.
Essentially, the Court concluded that this was a discretionary rule, and as the Court concluded last term in Beard v. Kindler, a discretionary rule can represent an adequate state law ground to bar habeas review.
I believed that a reversal was the likely outcome, but I thought there would be some split here on whether or not this was actually a discretionary rule, since it really isn't. It's a mandatory rule, with some exceptions to its mandatory nature. The burden is on the petitioner to establish one of those exceptions. That is not a discrecionary rule. The only discretionary part of the rule is that the California Supreme Court, who hears a large number of cases, has unofficial, common-law discretion to ignore the mandatory rule without any required explanation as to why they decided to ignore it. But once again, that does not turn a mandatory rule into a discretionary rule. It creates an ambiguous and undefined safety valve to a mandatory rule. In my mind, it's the essence of an inconsistently applied rule. Or maybe I am just reading too much into it.
Nevertheless, I worry that, as a result of this decision, inconsistently applied mandatory rules will now be viewed as "discretionary". I guess there is a fine line there that has now been moved a little in a bad direction for habeas petitioners. Actually, it may have moved a lot. We'll see.
One thing to note, this was the case where I came down hard on the State's attorneys, who seemed to do as much as they could to try and lose the case. I guess that bad lawyering doesn't always result in a loss, particularly when the Supreme Court is reviewing a Ninth Circuit decision.
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