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When Can States Preclude Federal Habeas Review?

The Supreme Court will hear oral argument at 1 p.m. today in Beard v. Kindler (08-992). The briefs and other filings in the case are available here on ScotusWiki.

Beard v. Kindler is a capital case with an unusual twist: the defendant appealing his sentence, Joseph Kindler, escaped twice from prison.  A Pennsylvania state court held, and the state supreme court agreed, that Kindler waived his right to appeal when he fled.  But the Third Circuit disagreed and affirmed the district court’s grant of habeas relief.

In Beard, the Court will consider when state courts have resolved an inmate’s claims on “adequate grounds” such that federal courts may not review that inmate’s habeas claims.  In particular, the Court will consider whether a state procedural default rule like Pennsylvania’s is “inadequate” solely because it is discretionary.


Kindler was convicted and sentenced to death in 1983 for the brutal murder of a witness who was scheduled to testify against him in a burglary trial.  Kindler filed post-verdict motions with the trial court, but he broke out of prison before the court could rule on them.  Kindler’s escape turned into an eight-year odyssey: he was captured in Canada in 1986, escaped a second time, was recaptured in 1988, legally fought extradition for three years, and was ultimately deported to the United States in 1991.  Upon his return to U.S. custody, Kindler sought to reinstate his original post-verdict motions, which the trial court had dismissed in 1984 because he was a fugitive.  The trial court declined to reinstate the motions, due to his flight, and the Pennsylvania Supreme Court affirmed.

In 1996, Kindler sought state post-conviction relief, but both the trial court and the state supreme court denied relief, holding that he had waived his right to post-conviction relief when he fled.  Kindler then sought federal habeas relief, which the district court granted.  It held that because the Commonwealth’s fugitive-forfeiture rule was discretionary, it was “inadequate” to bar federal review, and it then ruled in Kindler’s favor on the merits of his claims.  On appeal, the Third Circuit affirmed. The State filed a petition for certiorari, which the Court granted on May 18.

Federalism is at the heart of the Commonwealth’s argument in its brief on the merits.  Discretion, it argues, is crucial for judges to consider individual circumstances in individual cases.  If state rules are inadequate merely because judges can exercise discretion in deciding whether to apply them, then rules that by their nature do not admit of mandatory application can never preclude federal review.  A blanket federal ruling that discretionary rules are inadequate would be a double standard anyway, the Commonwealth continues, because some federal rules are discretionary.

In the Commonwealth’s view, a state procedural rule should instead be deemed “adequate” as long as it provides the defendant with “reasonable notice” of its terms and a reasonable opportunity in which to comply the rule, and it must not be intended to eviscerate any federal right.  Discretionary application of the fugitive-forfeiture doctrine did not deprive Kindler of reasonable notice:  in 1984, the only notice he needed was of the consequences of his escape.  But in any event, Kindler should have deduced that he could not return to custody no worse off than he was before his flight.

Twenty-five states filed a joint amicus brief in support of the Commonwealth, endorsing the “reasonable notice” standard for state procedural-default rules.  The brief claims that the Third Circuit’s decision to set a higher bar for adequate state grounds “frustrates the finality of state criminal judgments.”  The downside for the federal courts, the states predict, will be a surge of wasteful litigation.

In his brief, Kindler counters that the Third Circuit did not hold that the fugitive-forfeiture rule was per se inadequate simply because it was discretionary.  Rather, it held that the Pennsylvania Supreme Court’s exercise of discretion in applying the rule was inadequate because it was not “firmly established and regularly followed” – a competing adequate grounds test from the U.S. Supreme Court’s 1984 decision in James v. Kentucky.  Indeed, Kindler explains, all of the cases that the Commonwealth cites as reflecting a circuit split do not demonstrate a per se rule, but are actually about the infrequent or discriminate application of discretion.

Kindler impugns the fugitive-forfeiture doctrine as a rule of “unfettered discretion.”  A discretionary rule can be “adequate,” he argues, only if it both provides criteria guiding its use and is regularly and consistently applied.  In this case, Kindler contends, the fugitive-forfeiture rule was not regularly and consistently applied at the time of his appeal and was inadequate to bar federal review.  He explains that it was common practice in Pennsylvania in 1983 to review a fugitive’s claims if he was back in custody before his appeal was dismissed.  His appeal began after his deportation to the U.S.  In rejecting his claims simply because he was a fugitive, the Pennsylvania Supreme Court treated him differently than similar defendants; indeed, in two cases decided soon after his, the Pennsylvania Supreme Court reached the merits of similar fugitives’ claims – including Reginald Lewis, who escaped with Kindler.

In response to the Commonwealth’s proposed “reasonable notice” standard, Kindler counters that it could eviscerate federal rights.  Unlike federal judges, many state judges are elected and, therefore, subject to public pressure.  They are thus more likely to bar the claims of unpopular litigants – such as death row inmates.  These rulings would stand so long as defendants have reason to expect them.  By contrast, Kindler explains, his “consistent application” standard, prevents judges from applying procedural rules in a discriminatory – and thus presumably inconsistent – fashion.

Moving beyond the adequate state grounds doctrine, Kindler’s second major argument sweeps much more broadly: even if the Court holds that Kindler waived his right to appeal, substantive claims in all capital cases should be heard regardless of any procedural default because of the “overwhelming interest” in preventing the execution of innocent defendants.  This “relaxed waiver rule” was widely applied in Pennsylvania up until1998; because Kindler’s direct appeal was decided in 1996, he in this respect he was a victim of inconsistent application here as well.