Amicus Curiae Brief — Lee v. Kemna

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No. 00-6933

1 JUL 13 2001

n the

Supreme Court of the Anited States

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REMON LEE,

Petitioner,

MICHAEL KEMNA,

Respondent.

On Writ of Certiorari

To the United States Court of Appeals

For the Eighth Circuit

BRIEF OF THE STATES OF NEBRASKA,

ALABAMA, ALASKA, ARKANSAS,

CALIFORNIA, COLORADO, GEORGIA,

KANSAS, MARYLAND, MISSISSIPPI,

MONTANA, NEVADA, OHIO, OKLAHOMA,

PENNSYLVANIA, SOUTH CAROLINA AND

UTAH AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

DON STENBERG

Attorney General of Nebraska

* MARTIN SWANSON

Assistant Attorney General

State Capitol

Lincoln, Nebraska 68509

(402) 471-2682

Of Counsel:

Dan Schweitzer _

National Association of

Attorneys General

750 First St., N.E.

Washington, D.C. 20002

(202) 326-6010

* Counsel of Record

[additional counsel listed on inside cover]

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BILL PRYOR

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Attorney General of Arkansas

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Attorney General of California

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Attorney General of Colorado

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Attorney General of Maryland

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Attorney General of Mississippi

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Attorney General of Montana

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Attorney General of Pennsylvania

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CHARLES M. CONDON

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QUESTIONS PRESENTED

1. Whether petitioner's violation of Missouri

Supreme Court Rule 24.10 is an adequate and

independent state law ground to support the judgment

of the Missouri Court of Appeals and bar federal

habeas review of his claim.

2. If so, whether petitioner’s violation of the rule

can be excused by a showing of “cause” and “prejudice”

or a “fundamental miscarriage of justice.”

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .. ............5-. ili

INTEREST OF THE AMICI CURIAE .......... 1

STATEMENT OF THE CASE .............--- 1

SUMMARY OF ARGUMENT ............+-+-. 4

BETIS vv co ccncewccsecccoccceseosesss 7

I. Lee’s Violation of Missouri Supreme Court

Rule 24.10 is an Adequate and Independent

State Ground to Support the Missouri Court

of Appeals’ Judgment .................-. 7

A. Application of the Adequate and

Independent State Ground Doctrine

to Federal Habeas Furthers

Significant Practical and Federalism

DD .cccobcsgeeesaneneennes oss 7

B. Rule 24.10 Serves Significant Public

Purposes Generally and as Applied

Pa . coceocndeueeuceseseete 10

C. Rule 24.10 is Firmly Established

and Has Been Regularly Followed ..... 16

Il. Lee Cannot Demonstrate Cause and

Prejudice or a “Fundamental Miscarriage

of Justice” to Excuse His Procedural

DEE. occ ccccouseusesesagseenseens 19

ili

TABLE OF AUTHORITIES

Page

CASES:

Coleman v. Thompson, 501 U.S. 722

SEE o8edeta taecsunehbuunendeteeies 4, 8, 9, 20

Dugger v. Adams, 489 U.S. 401 (1989) .......... 18

Ford v. Georgia, 498 U.S. 411 (1991) ...... 9, 10, 17

Fox Films Corp. v. Muller, 296 U.S. 207 (1935) .... 7

Francis v. Henderson, 425 U.S. 536 (1976) ..... 8-9

Harris v. Reed, 489 U.S. 255 (1989) ........ 7-8, 18

Henry v. Mississippi, 379 U.S. 443 (1965) ........ 9

Herb v. Pitcairn, 324 U.S. 117 (1945) ............. 7

James v. Kentucky, 466 U.S. 341 (1984) ...... 9,10

Morris v. Slappy, 461 U.S. 1 (1983) ............ 19

Murdock v. City of Memphis, 87 U.S. 590 (1874) ...7

Murray v. Carrier, 477 U.S. 478 (1986) ......... 20

Reed v. Ross, 468 U.S. 1(1984) ................ 13

Schlup v. Delo, 513 U.S. 298 (1995) ....... 7, 20, 21

State v. Boykins, 399 S.W.2d 70

DiS + causédchdetddnebueeoeses 6, 12, 16

State v. Collie, 503 S.W.2d 445

ED. 66. cad 0 we de ntcdchawcec’ 17

State v. Cuckovich, 485 S.W.2d 16

I a a a ee i ie 6, 16

State v. Freeman, 702 S.W.2d 869

I ae a aaa kes 17

State v. Green, 647 S.W.2d 902

PE ac necdeeueetéeseses

State v. Henderson, 568 S.W.2d 556

(Mo. Ct. App 1978) ......... icueeekes

State v. Jack, 813 S.W.2d 57

PE ni veasteunsessaess

State v. Letcher, 552 N.W.2d 402 (S.D. 1996) ....

State v. Martin, 515 S.W.2d 802

SGM, SUED cb dceucesencecsees

State v. McGinnis, 622 S.W.2d 416

Sk GD PD cicccceesues codecs

State v. Morin, 873 S.W.2d 858

Pk Ce PD acoceneececcedcees

State v. Paige, 550 S.W.2d 582

Se GE DEED ob éeecwadecécndese

State v. Ware, 338 N.W.2d 707 (lowa 1983) .

Staub v. City of Baxley, 355 U.S. 313 (1958)

Taylor v. Illinois, 484 U.S. 400 (1988) .....

United States v. Olano, 507 U.S. 725 (1993)

Wainwright v. Sykes, 433 U.S. 72 (1977) ...

Wilson v. State, 895 S.W.2d 524 (Ark. 1995)

_Yakus v. United States, 321 U.S. 414 (1944)

STATUTES AND RULES:

Ark. Code Ann. §16-63-402 (Michie 1987) ..

Ark. R. Crim. P. 27.3 ..............2-05:.

Iowa R. Civ. P. 183(b) ................-.

Minn. Stat. Ann. §631.02 (West Supp. 2001)..... 13

I 3, 4, 5

PhD cesccencesceveseces passim

Mo. Rev. Stat. §545.720 (2000) ................ 16

Mo. Rev. Stat. §4181 (1889) .................. 16

Neb. Rev. Stat. Ann. §§25-1148 (Michie 1995) ...13

Neb. Rev. Stat. Ann. §§29-1206 (Michie 1995) ...13

N.D. Cent. Code §§29-19-06 (1991) ............ 13

N.D. Cent. Code §§29-19-08 (1991) ............ 13

OTHER MATERIALS: ao

Daniel Meltzer, State Court Forfeitures of Federal

Rights, 99 Harv. L. Rev. 1128 (1986) .... 8, 12,13

INTEREST OF THE AMICI CURIAE

This case presents two basic questions: First,

whether petitioner’s violation of Missouri Supreme

Court Rule 24.10 is an adequate and independent state

law ground to support the judgment of the Missouri

Court of Appeals. Second, if so, whether petitioner's

violation can be excused. The Court’s resolution of

these questions could significantly affect the

disposition of habeas corpus petitions in many states.

Procedural rules such as Rule 24.10 are common and

are necessary to effectively run the judicial process. It

is important to the amici states that this Court

reaffirm that state procedural rules may not be

bypassed by defendants and will be respected by the

federal courts. An expansion of the types of state rules

deemed inadequate for procedural bar purposes would

impede the justice system’s interest in obtaining

finality of criminal convictions and would contravene

the federalism principles that underlie the adequate

and independent state ground doctrine.

STATEMENT OF THE CASE

Amici adopt and incorporate the Statement of the

Case set forth in the Brief for Respondent. Because

petitioner Remon Lee’s request for a continuance is at

the heart of this case, this Statement supplements

respondent's by providing additional detail regarding

that application.

On Thursday, February 24, 1994, the state rested

its case and Lee began putting on his defense. James

McMullin, Lee’s counsel, requested a hearing to make

it clear that Lee was aware of his right to testify but

was waiving that right. During this hearing, Lee

stated that his mother, step-father and sister had come

from California to testify, were present at the

courthouse at 8:30 a.m., but could not be found by

11:00 a.m. J.A. 16-18. McMullin then stated: “All I can

do is proceed without them and do the best I can. Do

you understand?” J.A. 18. After Lee said that he did,

McMullin asked whether there was anything Lee

wanted McMullin to do. Lee responded by asking

whether they could obtain a short continuance and

attempt to locate the missing witnesses “because it’s

very valuable to my case.” This apparently surprised

McMullin, who responded that he “suppose[d] we could

ask for a capias, and—but if they’re from California I

don’t know. Anyway—.” J.A. 18.

After Lee’s testimony, the court asked McMullin

whether he intended to request a continuance.

McMullin stated that “[hje’s asked for one, Judge. I

think I better ask for a continuance on the thing.” J.A.

20. McMullin proceeded to request a continuance until

the following morning. The trial judge informed the

parties that he would not be available then because his

daughter was going to be in the hospital. J.A. 20. After

a further exchange, the trial court denied the motion

for a continuance, finding that it appeared the

witnesses had abandoned Lee. McMullin then

suggested that the trial court continue the matter until

Monday. The trial court rejected this as well, stating:

“I’ve got another case set for trial that will take a week

starting Monday morning. I'm not in a position to

grant a continuance under these circumstances. The

folks were here today. They were seen here on this

floor of the courthouse, and they apparently simply

have abandoned ... the defendant.” J.A. 22. During

the course of this hearing, neither Lee nor his attorney

mentioned why the witnesses were necessary, what

facts they would testify to, or the materiality of the

evidence sought to be obtained by the witnesses. Nor

did they provide any explanation for the witnesses’

departure. J.A. 15-25.

Following an unsuccessful motion for a new trial

and application for post-conviction relief, Lee appealed

to the Missouri Court of Appeals. The court stated that

“the trial court could have properly denied the motion

for a failure to comply with [Missouri Supreme Court]

Rule 24.09,” which requires that applications for

continuances be made in writing. J.A. 127. The court

then assumed arguendo that the oral motion was

proper, and ruled that the trial court did not abuse its

discretion by denying the continuance request because

the request failed to comply with Missouri Supreme

Court Rule 24.10. That rule sets forth what “[a]n

application for a continuance on account of the absence

of witnesses or their evidence shall show.” The court

found that Lee’s “motion was made without the factual

showing required by Rule 24.10,” and that “[w]hen a

denial to grant a motion for continuance is based on a

deficient application, it does not constitute an abuse of

discretion.” J.A. 127.

Lee next filed a habeas corpus petition in the

United States District Court for the Western District

of Missouri. The district court rejected all seven of the

claims raised by Lee. Of pertinence here, the district

court concluded that Lee’s due process claim based on

the trial court’s failure to grant a continuance was not

“fairly presented” to the Missouri courts because Lee

had failed to comply with Rule 24.10. J.A. 217; Pet.

App. B-5.

The Eighth Circuit affirmed, holding that Lee had

procedurally defaulted his claim because the Missouri

Court of Appeals rested its decision on a state ground

(non-compliance with Rules 24.09 and 24.10) that was

independent of the federal question and adequate to

support the judgment. J.A. 234; Pet. App. A-2. The

court further ruled that Lee could demonstrate neither

cause and prejudice nor actual innocence to excuse his

default. J.A. 234-35; Pet. App. A-2 to -3.

SUMMARY OF ARGUMENT .

Missouri Supreme Court Rule 24.10 provides that

an application for a continuance on account of the

absence of witnesses must show (through affidavit) an

array of facts regarding the need for the continuance

and its likely efficacy. Missouri appellate practice

provides that, if a litigant fails to comply with Rule

24.10, an appellate court will not reverse a trial court’s

denial of a continuance. Lee does not dispute that he

failed to comply with the rule. His only contentions are

that the rule is not “adequate” for procedural default

purposes and, in the alternative, that his failure to

comply with the rule should be excused. Neither

contention has merit.’

I. 1. Application of the adequate and independent

state ground doctrine to procedural defaults in habeas

cases “recognize[s] the important interest in finality

served by state procedural rules, and the significant

harm to the States that results from the failure of

federal courts to respect them.” Coleman v. Thompson,

501 U.S. 722, 750 (1991). State procedural rules that

serve legitimate state interests and are “firmly

established and consistently applied” are “adequate”

for purposes of the doctrine. This Court’s few decisions

' Because Lee’s failure to comply with Rule 24.10 suffices to bar his

constitutional claims, amici do not address Lee’s failure to comply with

Rule 24.09.

finding state procedural rules inadequate to support

procedural defaults involved extreme and unjustifiable

actions by state courts that contrast sharply with what

transpired here.

2. Rule 24.10 serves several legitimate state

interests, most notably ensuring that the trial court

obtains at the appropriate time the information it

needs to rule on a continuance application. Like

numerous other commonplace procedural rules, Rule

24.10 channels the presentation of an issue so that it

can be resolved without disrupting (or undoing) the

proceeding. That policy interest applied with full force

to this case.

Had Lee complied with the rule, he would have

informed the court, inter alia, of the purported central

importance of the missing witnesses’ testimony. Lee

failed to do so; not until his motion for post-conviction

relief did he set forth the reasons why the requested

continuance was important to his case. Lee’s failure to

comply with Rule 24.10 placed the Missouri courts in

precisely the position the rule was designed to

prevent—forcing post-conviction and appellate courts

to consider arguments not presented at trial and which

would now greatly disrupt the judicial process if

accepted.

Lee’s reliance upon his counsel’s opening statement

is unpersuasive. He cites no Missouri rule that would

permit assertions in an opening statement to

substitute for the showing required (under oath) by

Rule 24.10. Moreover, an opening statement is merely

a map for a jury of what the potential evidence may be.

That map often changes, as unexpected testimony is

elicited or strategies revisited. It is not a judge’s

responsibility to look to that earlier map to resolve a

continuance application; it is counsel’s responsibility to

make his arguments and (sworn) assertions in the

application.

3. Rule 24.10 is firmly established and has been

regularly applied. In cases such as State v. Boykins,

399 S.W.2d 70 (Mo. 1966), and State v. Cuckovich, 485

S.W.2d 16 (Mo. 1972), the Missouri Supreme Court has

held that failure to comply with the continuance rules

are sufficient grounds to deny an application for a

continuance. The Missouri Court of Appeals has

adhered to that ruling on numerous occasions, even in

cases (such as Lee’s) where counsel had little notice of

witnesses’ absence.

It matters not that the Missouri Court of Appeals

has several times affirmed trial court denials of

continuances on the merits, even though the

defendants had violated Rule 24.10. Such holdings

were perfectly consistent with the rule, for no

continuances were ordered. In any event, a procedural

rule does not become “inadequate” merely because it is

applied with some minor inconsistencies.

II. Lee cannot show cause to excuse his default.

The only “cause” proffered by Lee is the sudden

disappearance of his witnesses. That disappearance

does not explain, let alone justify, his failure to apprise

the trial court of the information mandated by Rule

24.10, such as the materiality of witnesses’ expected

testimony.

Nor is Lee justified in invoking the “fundamental

miscarriage of justice” exception to the procedural bar

rule. That exception is limited to cases where probable

innocence can be shown. Even if the missing witnesses

had testified in the manner Lee now suggests, their

ee vi 3m

testimony would have conflicted with that of four

witnesses at trial. Thus, the jury would have been

faced with a credibility issue. This is hardly the “rare”

or “extraordinary situation,” Schlup v. Delo, 513 U.S.

298, 321 (1995), that justifies application of the

exception.

ARGUMENT

I. Lee’s Violation of Missouri Supreme Court

Rule 24.10 is an Adequate and Independent

State Ground to Support the Missouri Court

of Appeals’ Judgment

A. Application of the Adequate and

Independent State Ground Doctrine to

Federal Habeas Furthers Significant

Practical and Federalism Interests

1. The “adequate and independent state ground”

doctrine dates back to “the time of [the Court’s]

foundation,” Herb v. Pitcairn, 324 U.S. 117, 125 (1945),

- and was reaffirmed in Murdock v. City of Memphis, 87

U.S. 590, 632-633 (1874), where the Court stated that

it should not “examine and decide other questions not

of a Federal character.” If the state law bases for a

lower court decision “are sufficient to maintain the

judgment of that court, notwithstanding the error in

deciding the Federal question,” the Court would not be

justified in reviewing the matter. Jd. at 635. By the

turn of the century, the “adequate and independent

state ground” concept was fully ingrained in the

Court’s jurisprudence. See Fox Films Corp. v. Muller,

296 U.S. 207, 210 (1935).

This Court has long applied the doctrine to “state

decisions forfeiting federal claims for violation of state

procedural rules.” Harris v. Reed, 489 U.S. 255, 261

(1989) (quoting Daniel Meltzer, State Court Forfeitures

of Federal Rights, 99 Harv. L. Rev. 1128, 1134 (1986)).

After some fits and starts, the Court made clear in

Wainwright v. Sykes, 433 U.S. 72, 87 (1977), that this

application of the doctrine applies in federal habeas.

Sykes and later cases, culminating in Coleman v.

Thompson, 501 U.S. 722, 750 (1991), confirmed that

“fiJn all cases in which a state prisoner has defaulted

his federal claims in state court pursuant to an

independent and adequate state procedural rule,

federal habeas review of the claims is barred unless the

prisoner can demonstrate cause for the default and

actual prejudice as a result of the alleged violation of

federal law, or demonstrate that failure to consider the

claims will result in a fundamental miscarriage of

justice.”

The notion that constitutional rights can be

forfeited in criminal cases “by the failure to make

timely assertion of the right” is neither novel nor

unfair. United States v. Olano, 507 U.S. 725, 731

(1993) (quoting Yakus v. United States, 321 U.S. 414,

444 (1944)). Criminal trials can proceed in an orderly

manner only if rules of procedure are imposed and

firmly enforced. Taylor v. Illinois, 484 U.S. 400, 411

(1988). For this reason, the federal criminal justice

system and all state criminal justice systems penalize

those who sleep on their rights. Modern habeas corpus

law merely applies that bedrock principle by respecting

the penalties imposed by state courts. And it does so in

a forgiving way, by excusing petitioners’ defaults if

they can show cause and prejudice or actual innocence.

Any other rule would contravene “considerations of

comity and federalism.” Coleman, 501 U.S. at 746

(quoting Francis v. Henderson, 425 U.S. 536, 541-42

(1976)). Giving “greater preclusive effect to procedural

defaults by federal defendants than to similar defaults

by state defendants . . . would reflect an anomalous

and erroneous view of federal-state relations.” Jd. By

contrast, application of the adequate and independent

state ground doctrine to procedural defaults in habeas

cases “recognize[s] the important interest in finality

served by state procedural rules, and the significant

harm to the States that results from the failure of »

federal courts to respect them.” Jd. at 750.

2. Notwithstanding the important state interests

served by the federal courts’ deference to the states’

procedural rules, not every such rule is an “adequate”

one that can support a procedural default. Although

this Court has not enunciated a definitive definition of

the term “adequate” in this context, it has described

the types of rules that are not adequate. A state

procedural rule which, on its face or as applied, is “an

arid ritual of meaningless form,” Staub v. City of

Baxley, 355 U.S. 313, 320 (1958), and does not serve “a

legitimate state interest,” Henry v. Mississippi, 379

U.S. 443, 448-449 (1965), is not adequate. The Court

held that the Kentucky Supreme Court ran afoul of

this principle when the latter ruled that a defendant

lost the right to obtain a particular jury instruction

because his counsel requested an “admonition” from

the judge, rather than an “instruction.” James v.

Kentucky, 466 U.S. 341, 348-49 (1984).

In James, the Court also held that a state

procedural rule that is not “firmly established and

regularly followed” is not adequate. Jd. Applying that

standard in Ford v. Georgia, 498 U.S. 411, 423-24

(1991), the Court held that the Georgia Supreme

Court’s retroactive application of a rule requiring

Batson claims to be made prior to the time jurors are

sworn was not an adequate procedural bar. At the

time of petitioner Ford’s trial, it was permissible for a

defendant to raise a Batson claim after the jury had

been sworn. The rule applied by the Georgia Supreme

Court—which was created two years after Ford’s

trial— was obviously not “firmly established” at the

time of that trial. Jd.

Lee does not dispute that Missouri Supreme Court

Rule 24.10 is independent of federal law. Thus, the

issue before the Court is whether or not that rule

provides an adequate state ground to support the

judgment. For the reasons set forth below, this Court

should conclude that it does. The Missouri Court of

Appeals’ application of Rule 24.10 is utterly unlike the

application of procedural rules in James and Ford. To

the contrary, the Missouri court acted sensibly and in

accordance with longstanding state practice.

B. Rule 24.10 Serves Significant Public

Purposes Generally and as Applied in

this Case

Missouri Supreme Court Rule 24.10 provides that

an application for a continuance on account of the

absence of witnesses must set forth: (1) the facts

showing the materiality of the evidence sought to be

obtained; (2) due diligence on the part of the applicant

to obtain the witnesses and the testimony; (3) the

name and residence of the absent witnesses, if known;

(4) facts showing reasonable grounds for belief that the

attendance or testimony of the witnesses will be

procured within a reasonable time; (5) the particular

facts “the affiant” expects the witnesses will prove, and

that such facts cannot be proven through other

witnesses or evidence; (6) that the applicant is not

responsible for the witnesses’ absence; (7) and that the

application is made in good faith.

The core of Lee’s argument is that, in his “unusual

situation,” it was senseless to apply Rule 24.10 strictly.

See Pet. Br. 19, 34-41. The opposite is true. The

laudable public policy objectives of the rule were fully

applicable to Lee’s situation. By failing to comply with

the rule, Lee withheld from the trial court the

arguments he later made to other tribunals in support

of his continuance application. It is commonplace for

claims to be forfeited because they (or facts supporting

them) are made at the wrong time. Nothing more

occurred here.

1. Rule 24.10, far from being an “arid ritual,”

serves numerous state interests. The rule ensures that

the trial court obtains at the appropriate time the

information it needs to rule on the continuance

request; provides guidance to litigants; standardizes

practice across the state; mandates preparation by the

parties; provides reliability through the affidavit

requirement; and allocates the burden of proof.

The first listed purpose is perhaps the most

significant. Rule 24.10 gives a trial court the ability to

issue a timely and correct ruling on the motion by

requiring the moving party to set out the critical facts

and asserted need for a continuance. As noted by

Professor Meltzer, rules such as Rule 24.10 serve the

promotion of focused consideration of

particular questions at different times, when

the pertinent evidence and argumentation can

be mustered; and the avoidance of wasteful

proceedings by requiring prompt consideration

of issues upon whose resolution further

matters (or the continuation of the proceeding

at all) depend. It is hard to imagine an

effective procedural system lacking such rules

of the road.

Daniel J. Meltzer, supra, 99 Harv. L. Rev. at 1134-35.

Rule 24.10 sets forth a blueprint for trial courts that

clarifies the showing that must be made at the critical

moment in the proceedings.

Rule 24.10 also serves the interests of the parties,

by guiding counsel as to the required contents of a

continuance application and sparing the court the need

“to instruct the applicant on how he may obtain a

continuance.” State v. McGinnis, 622 S.W.2d 416, 420.

(Mo. Ct. App. 1981). The proponent does not have to

hazard a guess whether his request will at least merit

consideration on its merits by the court. Moreover, the

proponent will know where to file the application,

when he has to file, and what he has to file. And since

the procedural rule is applicable statewide, a party can

walk into a courtroom in any city or town in Missouri

and know what is expected.

Rule 24.10 also forces parties to prepare and be

prepared. It establishes that a party is not entitled to

an automatic continuance because of a missing witness

or misplaced evidence. The rule thereby prevents abuse

by parties who did not prepare their case or are not

practicing due diligence in preparing the case. State v.

Boykins, 399 S.W.2d 70, 73-74 (Mo. 1966). Finally,

through its affidavit requirement and placement of

burden of proof on the movant, Rule 24.10 imposes

duties on the movant that increase reliability and

reduce unnecessary delays of trials.

2. This type of procedural rule is commonplace

and vital to all states. As the Court has said, “[eJach

State’s complement of procedural rules . . . channel|[s],

to the extent possible, the resolution of various types of

questions to the stage of the judicial process at which

they can be resolved most fairly and efficiently.” Reed

v. Ross, 468 U.S. 1, 10 (1984). “Procedural rules

establishing the time and manner for asserting rights

in state courts are familiar” and “serve critical

purposes.” Meltzer, supra, 99 Harv. L. Rev. at 1134.

Even if we focus strictly on rules governing

continuances, we see that Missouri's approach is run-

of-the-mill. A majority of the states in the Eighth

Circuit alone have rules on continuances that are

similar to Missouri's. Moreover, several supreme courts

of those states have held, as Missouri’s has, that if a

proponent of a motion to continue fails to comply with

the procedural rules the trial court may overrule the

application for the continuance. See Ark. Code Ann.

§16-63-402 (Michie 1987); Ark. R. Crim. P. 27.3; Wilson

v. State, 895 S.W.2d 524, 526 (Ark. 1995); Iowa R. Civ.

P. 183(b); State v. Ware, 338 N.W.2d 707, 714 (lowa

1983) (Rule 183 applies to criminal cases); Minn. Stat.

Ann. § 631.02 (West Supp. 2001); Neb. Rev. Stat. Ann.

§§ 25-1148, 29-1206 (Michie 1995); N.D. Cent. Code

§§ 29-19-06, 29-19-08 (1991); State v. Letcher, 552

N.W.2d 402, 407 (S.D. 1996).

3. Lee does not dispute that he failed to meet many

of the requirements of Rule 24.10. Instead, the thrust

of Lee’s argument is that (1) Rule 24.10 was not

adequate “as applied to Lee’s unusual situation, where

an oral motion for continuance was necessitated by the

sudden and unexpected disappearance of Lee’s

witnesses” (Pet. Br. 19), and (2) the materiality of the

alibi testimony was “obvious and unquestioned” (Pet.

Br. 37). Neither contention has merit. The Missouri

Court of Appeals was entirely justified in dismissing

Lee’s appeal based on his failure to comply with the

requirements of Rule 24.10.

The public policies served by Rule 24.10—in

particular, ensuring that the court is provided with the

information it needs to make a reasoned decision—

applied with full force here. Had Lee complied with

Rule 24.10 (to the extent it can be complied with

orally), he would have informed the court (through his

counsel’s argument and/or his own testimony) that his

motion should be granted because of the central

importance of the witnesses’ testimony to the case. He

would have stated that the witnesses were expected to

place Lee in California when the murder was

committed, which would contradict the testimony of

several of the states’ key witnesses. Had the trial court

heard that argument, with facts supporting it, it may

have granted the motion. But when Lee failed to

proffer any reason to delay the trial on account of the

missing witnesses—stating only that “it’s valuable to

my case” (J.A. 18)—the court took the only sensible

course based on the information then available to it:

denying the motion.

The opening statement of Lee’s counsel cannot

substitute for argument in a motion for a continuance

(or oral argument supporting an oral motion). Lee cites

no Missouri law that would allow the piggybacking of

statements made in one part of a trial onto a separate,

distinct hearing. Moreover, one purpose of Rule 24.10

is to force a proponent to declare, under penalty of

perjury, that he believes the motion to be true. By

contrast, an opening statement is not subject to a

a” awn Oe

challenge or punishment. Opening statements merely

provide a map or guide for the trier of fact of the

evidence counsel expects to present. During a trial,

however, the theory of the case may change and the

“map” may need to be updated or thrown out

completely.

Lee’s own actions during the trial and in post-trial

papers suggest that is precisely what happened. Were

the missing witnesses truly central to Lee’s case, one

would have expected Lee to have said so when seeking

the continuance. At the very least, one would have

expected Lee to have said so in later proceedings before

the trial court. Yet only when Lee filed his application

for post-conviction relief did he attempt to explain to a

court the purported importance of obtaining the

continuance. J.A. 56-59.

Given Lee’s own delay in raising the alleged

centrality of the missing witnesses, it is hard to find

fault with the trial court for failing to detect that

alleged centrality on its own. But even if we assumed

for the sake of argument that the trial court easily

could have seen the alleged importance of the missing

witnesses, that does not excuse Lee’s failure to comply

with Rule 24.10. In many cases, literally thousands of

bits of information pass before the eyes and ears of a

judge on a daily basis. Without the focus brought upon

by strict adherence to the rules, a trial court is forced

to wander throughout the deep depths of an entire trial

to pinpoint one moment in time where the preponent

of the motion may have referred to the reason he

wanted a particular witness to testify.

With these rules, the focus of the requesting party

is clear and a trial judge can make an informed and

educated judgment on whether the proponent met his

burden without having to guess the exact reason for

the request. After all, the burden to demonstrate the

need for a continuance is not on a judge; it is on the

proponent of the continuance. Rule 24.10 is in place to

aid the judge in determining if the missing evidence or

testimony is material. Lee paid the long-standing,

commonplace price for non-compliance with the rule.

C. Rule 24.10 is Firmly Established and Has

Been Regularly Followed

1. Rule 24.10 was adopted by order of the Missouri

Supreme Court in 1979 and has existed in some form

for more than a century. The present rule derives from

Mo. Rev. Stat. §545.720 (2000), which can be traced

back to the Missouri Revised Statutes of 1889 and

possibly earlier. See Mo. Rev. Stat. §4181 (1889)

(precursor to §545.720).

The Missouri courts have regularly applied Rule

24.10 to affirm the denial of a continuance. For

example, in State v. Boykins, supra, the Missouri

Supreme Court found that the defendant had not met

the requirements of former Missouri Supreme Court

Rule 25.08 (a precursor to Rule 24.10). The court held

that “[uJnder the applicable rule the trial court had no

alternative but to overrule the application.” 399 S.W.2d

at 74. And in State v. Cuckovich, 485 S.W.2d 16 (Mo.

1972), the Missouri Supreme Court recognized that

failure to comply with former Rule 25.08 was, by itself,

sufficient grounds for denying the motion for a

continuance. In Cuckovich, a witness was allegedly

unavailable due to an illness. Finding that the

continuance application did not comport with the rule,

the court affirmed the trial court’s exercise of its

discretion to overrule the motion. Jd. at 21-22.

Following the Missouri Supreme Court’s lead, the

Missouri Court of Appeals has held, time after time,

that when a continuance request based on absent

witnesses failed to conform to Rule 24.10, the trial

court did not abuse its discretion by denying the

motion. See, e.g., State v. Collie, 503 S.W.2d 445, 446-

47 (Mo. Ct. App. 1973); State v. Martin, 515 S.W.2d

802, 804 (Mo. Ct. App. 1974); State v. Paige, 550

S.W.2d 582, 583-84 (Mo. Ct. App. 1977); State v.

Henderson, 568 S.W.2d 556, 558 (Mo. Ct. App. 1978);

McGinnis, 622 S.W.2d at 420; State v. Green, 647

S.W.2d 902, 903-04 (Mo. Ct. App. 1983); State v.

Freeman, 702 S.W.2d 869, 874 (Mo. Ct. App. 1986);

State v. Morin, 873 S.W.2d 858, 871 (Mo. Ct. App.

1994). This longstanding practice has obtained even in

cases where, as here, witnesses unexpectedly were not

available for trial. See Resp. Br. at 26-27 (citing cases).

Missouri law is clear that, once an appellate court

concludes that a procedural violation has occurred, it

need not look any further and can uphold the trial

court’s denial of a continuance application even if the

trial court did not rely on that violation. See State v.

Jack, 813 S.W.2d 57, 60 (Mo. Ct. App..1991). All

litigants in Missouri know or should know about the

need to comply with Rule 24.10. In contrast to Ford v.

Georgia, ali parties are “deemed to have been apprised

of’ Rule 24.10, which was published and interpreted by

the Missouri appellate courts long before Lee’s trial.

2. Lee nevertheless argues that Rule 24.10 is not

“adequate” because (1) Missouri courts have often

denied continuance requests on their merits

notwithstanding violations of the rule, and (2) the rule

“describes the actual substantive showing required to

obtain a continuance.” Pet. Br. 32-33. As to the former

argument, Lee’s premise does not support his

conclusion. Missouri appellate practice provides that

if a litigant fails to comply with Rule 24.10, an

appellate court will not reverse a trial court’s denial of

a continuance. Appellate decisions affirming trial court

denials of continuances is not inconsistent with that

rule. Lee points to no Missouri appellate cases in which

trial court denials of continuances were reversed even

though the litigant had failed to comply with Rule

24.10.

Moreover, the very basis of the Harris v. Reed,

supra, “plain statement” rule is that state courts can

foreclose federal habeas review by (plainly) relying on

a state procedural bar while reaching the merits of a

federal claim as an alternative holding. Stated the

Court: “By its very definition, the adequate and

independent state ground doctrine requires the federal

court to honor a state holding that is a sufficient basis

for the state court’s judgment, even when the state

court also relies on federal law.” 489 U.S. at 264 n.10.

Concomitantly, a state procedural-rule does not

become “inadequate” merely because the state courts

on occasion move past the procedural default and reject

a claim on its merits. See Dugger v. Adams, 489 U.S.

401, 410-11 n.6 (1989) (finding Florida procedural rule

adequate even though the Florida Supreme Court “has

addressed the merits in several cases” where the rule

had been violated). Thus, Rule 24.10 is not rendered

inadequate merely because the Missouri state courts

have sometimes affirmed on the merits trial court

denials of continuance applications that had failed to

conform with Rule 24.10. .

Lee’s second argument—that Rule 24.10 “describes

the actual substantive showing required to obtain a

eee

continuance”’—is equally unavailing. The rule on its

face sets forth what a continuance application “shall -

show.” The rule does not provide, or even infer, that

once a movant makes that showing the trial court must

grant a continuance. It could not be otherwise. A trial

court can readily conclude that a continuance should

not be granted even where a litigant has set forth the

purportedly material facts to which a missing witness

would attest (as well as the other information required

by Rule 24.10). As this Court has recognized, “[t]rial

judges necessarily require a great deal of latitude in

scheduling trials. Not the least of their problems is

that of assembling the witnesses, lawyers, and jurors

at the same place at the same time, and this burden

counsels against continuances except for compelling

reasons.” Morris v. Slappy, 461 U.S. 1, 11 (1983).

II. Lee Cannot Demonstrate Cause and

Prejudice or a “Fundamental Miscarriage of

Justice” to Excuse His Procedural Default

1. A procedural default can be excused if a person

can demonstrate good cause for not following the state

procedural rule and was prejudiced from the rule’s

application. See Sykes, 433 U.S. at 87. Even were we to

assume that Lee could show prejudice, he cannot show

cause.

The “cause” upon which Lee relies is the “sudden

disappearance of [his] alibi witnesses.” Pet. Br. 42. But

that utterly fails to explain why Lee, in his application

for a continuance, failed to state why the witnesses

were necessary, the facts to which they would testify,

or the materiality of that expected testimony. The

disappearance of the witnesses set the stage for the

continuance request; it did not “cause” his failure to

comply with state-law requirements of such a request.

Likewise, whether or not a court officer “induced

the witnesses to leave” (Pet. Br. 42) is besides the

point. It does not bear on why Lee failed to put forth

facts and arguments in his request to the trial court for

a continuance. In the end, Lee does not truly assert

“cause”; he simply reiterates his arguments as to why

_ his non-compliance with Rule 24.10 should not justify

a procedural default in the first instance.

The only conceivable “cause” for Lee’s default was

the arguably poor performance of his counsel. Cf.

Murray v. Carrier, 477 U.S. 478, 492 (1986) (setting

forth standards for when counsel’s performance can

serve as “cause”). The Eighth Circuit, however, found

that Lee had not properly presented his ineffective-

assistance claim to the state courts (J.A. 235; Pet. App.

» A-3), and Lee has not advanced that argumenit to this

Court.

2. A procedural default can also be excused in order

to prevent a “fundamental miscarriage of justice.” See

Coleman, 501 U.S. at 750. The Court has limited this

escape valve to cases where it is more likely than not

that no reasonable juror would have convicted the

habeas petitioner in light of the new evidence of

innocence. Schlup v. Delo, 513 U.S. 298, 327 (1995).

The fundamental miscarriage of justice exception seeks

to balance the societal interests in finality, comity, and

conservation of judicial resources with the individual

interest in justice that arises in the extraordinary case.

Id. at 324. To ensure that the fundamental miscarriage

of justice exception would remain “rare” and would

only be applied in the “extraordinary case,” while at

the same time ensuring that it would extend relief to

those who were truly deserving, the Court explicitly

tied it to the petitioner’s innocence. Jd. at 321.

ai B= —

Lee’s case does not present the “rare” or

“extraordinary” situation contemplated by Schlup. Two

eyewitnesses placed Lee in the getaway car (J.A. 124-

25); two additional witnesses testified that they saw

Lee with the other culprit in Missouri the night before

the murder (T.Tr. 450-53, 471-74)—all of which

directly contradicts the testimony Lee’s missing

witnesses purportedly would have made. Hence, the

“evidence” Lee wanted to introduce would have

presented the jury with a routine credibility question.

This is not a case where DNA evidence has

demonstrated a defendant’s innocence or even where a

key witness has recanted his testimony. The

fundamental miscarriage of justice exception would be

a gaping loophole to the procedural default rule if it

applied in such an ordinary case.

CONCLUSION

The judgment of the Eighth Circuit should be

affirmed.

Respectfully submitted.