LEE v. KEMNA, SUPERINTENDENT, CROSSROADS CORRECTIONAL CENTER

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LEE v. KEMNA, SUPERINTENDENT, CROSSROADS
CORRECTIONAL CENTER
certiorari to the united states court of appeals for
the eighth circuit
No. 00–6933. Argued October 29, 2001—Decided January 22, 2002
Petitioner Lee was tried for first-degree murder and a related crime in
state court. His planned alibi defense—that he was in California with
his family at the time of the murder—surfaced at each stage of the
proceedings. Although Lee’s mother, stepfather, and sister voluntarily
came to Missouri to testify to his alibi, they left the courthouse without
explanation at some point on the third day of trial, the day the defense
case began. Lee’s counsel moved for an overnight continuance to gain
time to find the witnesses and enforce the subpoenas he had served on
them. Neither the trial judge nor the prosecutor identified any pro-
cedural flaw in the motion’s presentation or content. The trial judge
denied the motion, stating that it looked as though the witnesses had in
effect abandoned Lee, that his daughter’s hospitalization would prevent
the judge from being in court the next day, and that he would be un-
available on the following business day because he had another trial
scheduled. The trial resumed without pause, no alibi witnesses testi-
fied, the jury found Lee guilty as charged, and he was sentenced to
prison for life without possibility of parole. Lee’s new trial motion,
grounded in part on the denial of his continuance motion, was denied,
as was his motion for state postconviction relief, in which he argued,
inter alia, that the refusal to grant his continuance motion deprived
him of his federal due process right to a defense. His direct appeal
and his appeal from the denial of postconviction relief were consolidated
before the Missouri Court of Appeals, which disposed of the case on
state procedural grounds. The appeals court held that the denial of
the continuance motion was proper because Lee’s counsel had failed
to comply with Missouri Supreme Court Rule 24.09, which requires
that such motions be in writing and accompanied by an affidavit, and
with Rule 24.10, which sets out the showings a movant must make to
gain a continuance grounded on witnesses’ absence. Declining to con-
sider the merits of Lee’s due process plea, the Missouri Court of Ap-
peals affirmed his conviction and the denial of postconviction relief.
He then filed a federal habeas application, which the District Court
denied. The Eighth Circuit affirmed, ruling that federal review of
Lee’s due process claim was unavailable because the state court’s re-

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jection of that claim rested on state-law grounds—the failure of the
continuance motion to comply with Rules 24.09 and 24.10—independent
of the federal question and adequate to support the judgment, Coleman
v. Thompson, 501 U. S. 722, 729.
Held: The Missouri Rules, as injected into this case by the state appellate
court, did not constitute state grounds adequate to bar federal habeas
review. Pp. 375–388.
(a) Although violation of firmly established and regularly followed
state rules ordinarily bars federal review, there are exceptional cases
in which exorbitant application of a generally sound rule renders the
state ground inadequate to stop consideration of a federal question.
See Davis v. Wechsler, 263 U. S. 22, 24. This case fits within that
limited category. The Court is guided here by Osborne v. Ohio, 495
U. S. 103, 122–125. Osborne applied the general principle that an ob-
jection ample and timely to bring an alleged federal error to the atten-
tion of the trial court, enabling it to take appropriate corrective action,
satisfies legitimate state interests, and therefore suffices to preserve
the claim for federal review. The sequence of events in Lee’s case
also guides the Court’s judgment. The asserted procedural oversights,
Lee’s alleged failures fully to comply with Rules 24.09 and 24.10, were
first raised more than two and a half years after his trial. The two
Rules, Missouri asserted, work together to enhance the reliability of a
trial court’s determination whether to delay a scheduled criminal trial
due to the absence of a witness. Yet neither the prosecutor nor the
trial judge so much as mentioned the Rules as a reason for denying
Lee’s continuance motion. If either had done so at the appropriate
time, Lee would have had an opportunity to perfect his plea to hold the
case over until the next day. Instead, the State first raised Rule 24.10
as a new argument in its brief to the Missouri Court of Appeals, and
that court, it seems, raised Rule 24.09’s writing requirements on its
own motion. Pp. 375–380.
(b) Three considerations, in combination, lead to the conclusion that
the asserted state grounds are inadequate to block adjudication of
Lee’s federal claim. First, when the trial judge denied Lee’s motion,
he stated a reason that could not have been countered by a perfect
motion for continuance: He said he could not carry the trial over until
the next day because he had to be with his daughter in the hospital;
he further informed counsel that another scheduled trial prevented him
from concluding Lee’s case on the following business day. Although the
judge hypothesized that the witnesses had abandoned Lee, no proffered
evidence supported this supposition. Second, no published Missouri
decision directs flawless compliance with Rules 24.09 and 24.10 in the

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364 LEE v. KEMNA
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unique circumstances of this case—the sudden, unanticipated, and at
the time unexplained disappearance of critical, subpoenaed witnesses
on what became the trial’s last day. Third and most important, the
purpose of the Rules was served by Lee’s submissions both immediately
before and at the short trial. As to the “written motion” requirement,
Rule 24.09 does not completely rule out oral continuance motions,
and the trial transcript enabled an appellate court to comprehend the
situation quickly. As to Rule 24.10, two of the Rule’s components were
stressed by the State. Missouri asserted, first, that Lee’s counsel never
mentioned in his oral motion the testimony he expected from the miss-
ing witnesses, and second, that Lee’s counsel gave the trial court no
reason to believe that those witnesses could be located within a reason-
able time. These matters, however, were either covered by the oral
continuance motion or otherwise conspicuously apparent on the record.
Thus, the Rule’s essential requirements were substantially met in this
case, and nothing would have been gained by requiring Lee’s counsel to
recapitulate in rank order the showings the Rule requires. See, e. g.,
Osborne, 495 U. S., at 124. The case is therefore remanded for adjudica-
tion of Lee’s due process claim on the merits. Pp. 381–388.
213 F. 3d 1037, vacated and remanded.
Ginsburg, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O’Connor, Souter, and Breyer, JJ., joined. Ken-
nedy, J., filed a dissenting opinion, in which Scalia and Thomas, JJ.,
joined, post, p. 388.
Bonnie I. Robin-Vergeer, by appointment of the Court, 532
U. S. 956, argued the cause for petitioner. With her on the
briefs were David C. Vladeck and Alan B. Morrison.
Paul C. Wilson argued the cause for respondent. With
him on the brief were Jeremiah W. (Jay) Nixon, Attorney
General of Missouri, James R. Layton, State Solicitor, and
Michael J. Spillane, Assistant Attorney General.*
*Briefs of amici curiae urging affirmance were filed for the State of
Nebraska et al. by Don Stenberg, Attorney General of Nebraska, Martin
Swanson, Assistant Attorney General, and Dan Schweitzer, joined by the
Attorneys General for their respective States as follows: Bill Pryor of
Alabama, Bruce M. Botelho of Alaska, Mark Pryor of Arkansas, Bill Lock-
yer of California, Ken Salazar of Colorado, Thurbert E. Baker of Georgia,
Carla J. Stovall of Kansas, J. Joseph Curran, Jr., of Maryland, Mike

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Opinion of the Court
Justice Ginsburg delivered the opinion of the Court.
Petitioner Remon Lee asserts that a Missouri trial court
deprived him of due process when the court refused to grant
an overnight continuance of his trial. Lee sought the con-
tinuance to locate subpoenaed, previously present, but sud-
denly missing witnesses key to his defense against felony
charges. On direct review, the Missouri Court of Appeals
disposed of the case on a state procedural ground. That
court found the continuance motion defective under the
State’s rules. It therefore declined to consider the merits
of Lee’s plea that the trial court had denied him a fair oppor-
tunity to present a defense. Whether the state ground dis-
positive in the Missouri Court of Appeals is adequate to pre-
clude federal habeas corpus review is the question we here
consider and decide.
On the third day of his trial, Lee was convicted of first-
degree murder and armed criminal action. His sole affirm-
ative defense was an alibi; Lee maintained he was in Califor-
nia, staying with his family, when the Kansas City crimes for
which he was indicted occurred. Lee’s mother, stepfather,
and sister voluntarily came to Missouri to testify on his be-
half. They were sequestered in the courthouse at the start
of the trial’s third day. For reasons then unknown, they
were not in the courthouse later in the day when defense
counsel sought to present their testimony. Discovering
their absence, defense counsel moved for a continuance until
the next morning so that he could endeavor to locate the
three witnesses and bring them back to court.
The trial judge denied the motion, stating that it looked
to him as though the witnesses had “in effect abandoned
Moore of Mississippi, Mike McGrath of Montana, Frankie Sue Del Papa
of Nevada, Betty D. Montgomery of Ohio, W. A. Drew Edmondson of Okla-
homa, D. Michael Fisher of Pennsylvania, Charles M. Condon of South
Carolina, and Mark L. Shurtleff of Utah; and for the Criminal Justice
Legal Foundation by Kent S. Scheidegger.

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the defendant” and that, for personal reasons, he would
“not be able to be [in court the next day] to try the case.”
Furthermore, he had “another case set for trial” the next
weekday. App. 22. The trial resumed without pause, no
alibi witnesses testified, and the jury found Lee guilty as
charged.
Neither the trial judge nor the prosecutor identified any
procedural flaw in the presentation or content of Lee’s mo-
tion for a continuance. The Missouri Court of Appeals, how-
ever, held the denial of the motion proper because Lee’s
counsel had failed to comply with Missouri Supreme Court
Rules not relied upon or even mentioned in the trial court:
Rule 24.09, which requires that continuance motions be in
written form, accompanied by an affidavit; and Rule 24.10,
which sets out the showings a movant must make to gain a
continuance grounded on the absence of witnesses.
We hold that the Missouri Rules, as injected into this case
by the state appellate court, did not constitute a state ground
adequate to bar federal habeas review. Caught in the midst
of a murder trial and unalerted to any procedural defect in
his presentation, defense counsel could hardly be expected
to divert his attention from the proceedings rapidly unfold-
ing in the courtroom and train, instead, on preparation of a
written motion and affidavit. Furthermore, the trial court,
at the time Lee moved for a continuance, had in clear view
the information needed to rule intelligently on the merits
of the motion. Beyond doubt, Rule 24.10 serves the State’s
important interest in regulating motions for a continuance—
motions readily susceptible to use as a delaying tactic. But
under the circumstances of this case, we hold that petitioner
Lee, having substantially, if imperfectly, made the basic
showings Rule 24.10 prescribes, qualifies for adjudication of
his federal, due process claim. His asserted right to defend
should not depend on a formal “ritual . . . [that] would further
no perceivable state interest.” Osborne v. Ohio, 495 U. S.

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103, 124 (1990) (quoting James v. Kentucky, 466 U. S. 341,
349 (1984) (in turn quoting Staub v. City of Baxley, 355 U. S.
313, 320 (1958))) (internal quotation marks omitted).
I
On August 27, 1992, Reginald Rhodes shot and killed
Steven Shelby on a public street in Kansas City, Missouri.
He then jumped into the passenger side of a waiting truck,
which sped away. Rhodes pleaded guilty, and Remon Lee,
the alleged getaway driver, was tried for first-degree murder
and armed criminal action.
Lee’s trial took place within the span of three days in
February 1994. His planned alibi defense—that he was in
California with his family at the time of the murder—sur-
faced at each stage of the proceedings. During voir dire on
the first day of trial, Lee’s court-appointed defense attorney
informed prospective jurors that “[t]here will be a defense in
this case, which is a defense of alibi.” App. 10; see also ibid.
(“And we’ll put on evidence—I can’t go into it now—that he
was somewhere else, he couldn’t commit the crime and I be-
lieve the judge will give an instruction on alibi at the conclu-
sion of my case.”). Later in the voir dire, defense counsel
identified the three alibi witnesses as Lee’s mother, Gladys
Edwards, Lee’s sister, Laura Lee, and Lee’s stepfather,
James Edwards, a minister. Id., at 11–13.
The planned alibi defense figured prominently in counsels’
opening statements on day two of Lee’s trial. The prosecu-
tor, at the close of her statement, said she expected an alibi
defense from Lee and would present testimony to disprove
it. Tr. 187. Defense counsel, in his opening statement, de-
scribed the alibi defense in detail, telling the jury that the
evidence would show Lee was not in Kansas City, and there-
fore could not have engaged in crime there, in August 1992.
App. 12–13. Specifically, defense counsel said three close
family members would testify that Lee came to visit them in

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Ventura, California, in July 1992 and stayed through the end
of October. Lee’s mother and stepfather would say they
picked him up from the airport at the start of his visit and
returned him there at the end. Lee’s sister would testify
that Lee resided with her and her four children during this
time. All three would affirm that they saw Lee regularly
throughout his unbroken sojourn. Ibid.
During the prosecution case, two eyewitnesses to the
shooting identified Lee as the driver. The first, Reginald
Williams, admitted during cross-examination that he had
told Lee’s first defense counsel in a taped interview that
Rhodes, not Lee, was the driver. Tr. 285. Williams said
he had given that response because he misunderstood the
question and did not want to be “bothered” by the inter-
viewer. Id., at 283, 287. The second eyewitness, William
Sanders, was unable to pick Lee out of a photographic array
on the day of the shooting; Sanders identified Lee as the
driver for the first time 18 months after the murder. Id.,
at 413–414.
Two other witnesses, Rhonda Shelby and Lynne Bryant,
were called by the prosecutor. Each testified that she knew
Lee and had seen him in Kansas City the night before the
murder. Both said Lee was with Rhodes, who had asked
where Steven Shelby (the murder victim) was. Id., at 443–
487. The State offered no physical evidence connecting Lee
to the murder and did not suggest a motive.
The defense case began at 10:25 a.m. on the third and final
day of trial. Two impeachment witnesses testified that
morning. Just after noon, counsel met with the trial judge
in chambers for a charge conference. At that meeting, the
judge apparently agreed to give an alibi instruction submit-
ted by Lee. Id., at 571.1
1 That Lee had submitted an alibi instruction during the charge confer-
ence became apparent when the trial judge, delivering the charge, began
to read the proposed instruction. He was interrupted by the prosecutor

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At some point in the late morning or early afternoon, the
alibi witnesses left the courthouse. Just after one o’clock,
Lee took the stand outside the presence of the jury and, for
the record, responded to his counsel’s questions concerning
his knowledge of the witnesses’ unanticipated absence.
App. 15. Lee, under oath, stated that Gladys and James
Edwards and Laura Lee had voluntarily traveled from Cali-
fornia to testify on his behalf. Id., at 16. He affirmed his
counsel’s representations that the three witnesses, then
staying with Lee’s uncle in Kansas City, had met with Lee’s
counsel and received subpoenas from him; he similarly af-
firmed that the witnesses had met with a Kansas City police
officer, who interviewed them on behalf of the prosecutor.
Id., at 16–18. Lee said he had seen his sister, mother, and
stepfather in the courthouse that morning at 8:30 and later
during a recess.
On discovering the witnesses’ absence, Lee could not call
them at his uncle’s house because there was no phone on the
premises. He asked his girlfriend to try to find the wit-
nesses, but she was unable to do so. Id., at 17. Although
Lee did not know the witnesses’ whereabouts at that mo-
ment, he said he knew “in fact they didn’t go back to Cali-
fornia” because “they [had] some ministering . . . to do” in
Kansas City both Thursday and Friday evenings. Id., at 18.
He asked for “a couple hours’ continuance [to] try to locate
them, because it’s very valuable to my case.” Ibid. De-
fense counsel subsequently moved for a continuance until the
next morning, to gain time to enforce the subpoenas he had
served on the witnesses. Id., at 20. The trial judge re-
sponded that he could not hold court the next day because
“my daughter is going to be in the hospital all day . . . [s]o
I’ve got to stay with her.” Ibid.
and defense counsel, who reminded him that the instruction was no longer
necessary. Tr. 594–595.

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After a brief further exchange between court and coun-
sel,2 the judge denied the continuance request. The judge
observed:
“It looks to me as though the folks were here and then
in effect abandoned the defendant. And that, of course,
we can’t—we can’t blame that on the State. The State
had absolutely nothing to do with that. That’s—it’s too
bad. The Court will not be able to be here tomorrow
to try the case.” Id., at 22.
Counsel then asked for a postponement until Monday (the
next business day after the Friday the judge was to spend
with his daughter in the hospital). The judge denied that
request too, noting that he had another case set for trial that
day. Ibid.
In a final colloquy before the jury returned to the court-
room, defense counsel told the court he would be making a
motion for judgment of acquittal. The judge asked, “You’re
going to give that to me . . . orally and you’ll supplement
that with a written motion?” Counsel agreed. Id., at 23.
When the jurors returned, defense counsel informed them
that the three witnesses from California he had planned to
call “were here and have gone”; further, counsel did not
“know why they’ve gone.” Id., at 25. The defense then
rested. In closing argument, Lee’s counsel returned to the
alibi defense he was unable to present. “I do apologize,”
he said, “I don’t know what happened to my witnesses.
They’re not here. Couldn’t put them on on the question of
alibi.” Id., at 26. The prosecutor commented on the same
gap: “Where are those alibi witnesses that [defense counsel]
promised you from opening[?] They’re not here.” Id., at
27.
2 Responding to the court’s questions, Lee’s counsel said he had copies
of the witnesses’ written statements and their subpoenas. App. 20–21.
Counsel next began to describe the subpoenas. When counsel listed
Gladys Edwards, the court asked “[i]s she the mother?” Id., at 21.

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After deliberating for three hours, the jury convicted Lee
on both counts. He was subsequently sentenced to prison
for life without possibility of parole. Id., at 43.
The trial court later denied Lee’s new trial motion, which
Lee grounded, in part, on the denial of the continuance mo-
tion. Id., at 31–32, 42. Lee, at first pro se but later repre-
sented by appointed counsel, next filed a motion for state
postconviction relief. Lee argued, inter alia, that the re-
fusal to grant his request for an overnight continuance de-
prived him of his federal constitutional right to a defense.
Id., at 56–59. 3 In his postconviction motion, Lee asserted
that the three witnesses had left the courthouse because
“an unknown person,” whom he later identified as an em-
ployee of the prosecutor’s office, had told them “they were
not needed to testify.” Id., at 56–58. The postconviction
court denied the motion, stating that under Missouri law,
an allegedly improper denial of a continuance fits within
the category “trial error,” a matter to be raised on direct
appeal, not in a collateral challenge to a conviction. Id., at
70.
Lee’s direct appeal and his appeal from the denial of post-
conviction relief were consolidated before the Missouri Court
of Appeals. See Mo. Sup. Ct. Rule 29.15(l) (1994). There,
Lee again urged that the trial court’s refusal to continue the
case overnight denied him due process and the right to put
on a defense. App. 90–95. In response, the State argued
for the first time that Lee’s continuance request had a fatal
procedural flaw. Id., at 110–115. In particular, the State
contended that Lee’s application failed to comply with Mis-
souri Supreme Court Rule 24.10 (Rule 24.10), which lists
the showings required in a continuance request based on
3 Missouri procedure at the time required Lee to file his postconviction
motion in the sentencing court shortly after he filed his notice of direct
appeal. See Mo. Sup. Ct. Rule 29.15(b) (1994) (requiring motion to be
made within 30 days of filing of court transcript in appellate court consid-
ering direct appeal). The direct appeal was “suspended” while the trial
court considered the postconviction motion. See Rule 29.15(l).

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the absence of witnesses.4 By the State’s reckoning, Lee’s
request did not show the materiality of the California wit-
nesses’ testimony or the grounds for believing that the
witnesses could be found within a reasonable time; in addi-
tion, the prosecution urged, Lee failed to “testify that the
witnesse[s’] absence was not due to his own procurement.”
App. 113.
The Missouri Court of Appeals affirmed Lee’s conviction
and the denial of postconviction relief. State v. Lee, 935
S. W. 2d 689 (1996); App. 123–131. The appellate court first
noted that Lee’s continuance motion was oral and therefore
did not comply with Missouri Supreme Court Rule 24.09
(Rule 24.09), which provides that such applications shall be in
written form, accompanied by an affidavit. App. 126–127.5
4 Rule 24.10 reads:
“Misdemeanors or Felonies—Application for a Continuance on Account
of Absence of Witnesses Shall Show What
“An application for a continuance on account of the absence of witnesses
or their evidence shall show:
“(a) The facts showing the materiality of the evidence sought to be ob-
tained and due diligence upon the part of the applicant to obtain such
witness or testimony;
“(b) The name and residence of such witness, if known, or, if not known,
the use of diligence to obtain the same, and also facts showing reasonable
grounds for belief that the attendance or testimony of such witness will
be procured within a reasonable time;
“(c) What particular facts the affiant believes the witness will prove,
and that he knows of no other person whose evidence or attendance he
could have procured at the trial, by whom he can prove or so fully prove
the same facts;
“(d) That such witness is not absent by the connivance, consent, or pro-
curement of the applicant, and such application is not made for vexation
or delay, but in good faith for the purpose of obtaining a fair and impar-
tial trial.
“If the court shall be of the opinion that the affidavit is insufficient it
shall permit it to be amended.”
5 Rule 24.09 reads:
“Misdemeanors or Felonies—Application for Continuance—How Made
“An application for a continuance shall be made by a written motion
accompanied by the affidavit of the applicant or some other credible person

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“Thus,” the Court of Appeals said, “the trial court could
have properly denied the motion for a failure to comply with
Rule 24.09.” Id., at 127. Even assuming the adequacy of
Lee’s oral motion, the court continued, the application “was
made without the factual showing required by Rule 24.10.”
Ibid. The court did not say which components of Rule 24.10
were unsatisfied. “When a denial to grant a motion for con-
tinuance is based on a deficient application,” the Court of
Appeals next said, “it does not constitute an abuse of discre-
tion.” Ibid. Lee’s subsequent motions for rehearing and
transfer to the Missouri Supreme Court were denied.
In January 1998, Lee, proceeding pro se, filed an appli-
cation for writ of habeas corpus in the United States Dis-
trict Court for the Western District of Missouri. Id., at
132. Lee once again challenged the denial of his continuance
motion. Id., at 147–152. He appended affidavits from the
three witnesses, each of whom swore to Lee’s alibi; sister,
mother, and stepfather alike stated that they had left the
courthouse while the trial was underway because a court
officer told them their testimony would not be needed that
day. Id., at 168–174. 6 Lee maintained that the State had
engineered the witnesses’ departure; accordingly, he as-
setting forth the facts upon which the application is based, unless the ad-
verse party consents that the application for continuance may be made
orally.”
6 The witnesses’ accounts of their departure from the courthouse were
as follows:
Laura Lee: “[T]hose people in Missouri told us we could leave because
OUR TESTIMONY would not be needed until the next day.” App. 169.
Gladys Edwards: “[T]he officer of the court came and told us that the
prosecutor stated that the state[’]s case will again take up the remainder
of that day. That [o]ur testimony will not be needed until the following
day, that we could leave until the following day. He . . . told [u]s not to
worry, the Judge knows [w]e came to testify, they have [o]ur statements,
and the trial will not be over until we testify. So at those instructions
we left.” Id., at 172.
James Edwards: “[W]hile at the [c]ourthouse, we were told by an officer
of the court that [o]ur testimony would not be needed until the following
day, we were excused until then.” Id., at 174.

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serted that prosecutorial misconduct, not anything over
which he had control, prompted the need for a continuance.
Id., at 148, 155–156.
The District Court denied the writ. No. 98–0074–CV–W–
6–P (WD Mo., Apr. 19, 1999), App. 212–218. The witnesses’
affidavits were not cognizable in federal habeas proceedings,
the court held, because Lee could have offered them to the
state courts but failed to do so. Id., at 215 (citing 28 U. S. C.
§ 2254(e) (1994 ed., Supp. V)). The Federal District Court
went on to reject Lee’s continuance claim, finding in the Mis-
souri Court of Appeals’ invocation of Rule 24.10 an adequate
and independent state-law ground barring further review.
App. 217.
The Court of Appeals for the Eighth Circuit granted a
certificate of appealability, limited to the question whether
Lee’s “due process rights were violated by the state trial
court’s failure to allow him a continuance,” id., at 232, and
affirmed the denial of Lee’s habeas petition. 213 F. 3d 1037
(2000) (per curiam). Federal review of Lee’s due process
claim would be unavailable, the court correctly observed, if
the state court’s rejection of that claim “ ‘rest[ed] . . . on
a state law ground that is independent of the federal ques-
tion and adequate to support the judgment,’ regardless of
‘whether the state law ground is substantive or procedural.’ ”
Id., at 1038 (quoting Coleman v. Thompson, 501 U. S. 722,
729 (1991)). “The Missouri Court of Appeals rejected Lee’s
claim because his motion for a continuance did not comply
with [Rules] 24.09 and 24.10,” the Eighth Circuit next stated.
Thus, that court concluded, “the claim was procedurally de-
faulted.” 213 F. 3d, at 1038.7
7 Lee had asked the federal appeals court to excuse the procedural
lapse, suggesting that trial counsel’s failure to follow Missouri’s motion
rules qualified as ineffective assistance of counsel. Lee had not exhausted
that claim in state court, the Eighth Circuit responded, therefore he could
not assert it in federal habeas proceedings. 213 F. 3d, at 1038. Further-
more, the federal appeals court ruled, Lee could not rest on a plea of

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Chief District Judge Bennett, sitting by designation from
the District Court for the Northern District of Iowa, dis-
sented. In his view, Rules 24.09 and 24.10 did not supply
state-law grounds “adequate” to preclude federal review in
the particular circumstances of this case. Id., at 1041–1049.
We granted Lee’s pro se petition for a writ of certiorari,
531 U. S. 1189 (2001), and appointed counsel, 532 U. S. 956
(2001). We now vacate the Court of Appeals judgment.
II
This Court will not take up a question of federal law pre-
sented in a case “if the decision of [the state] court rests on
a state law ground that is independent of the federal ques-
tion and adequate to support the judgment.” Coleman v.
Thompson, 501 U. S. 722, 729 (1991) (emphases added). The
rule applies with equal force whether the state-law ground
is substantive or procedural. Ibid. We first developed the
independent and adequate state ground doctrine in cases on
direct review from state courts, and later applied it as well
“in deciding whether federal district courts should address
the claims of state prisoners in habeas corpus actions.”
Ibid. “[T]he adequacy of state procedural bars to the asser-
tion of federal questions,” we have recognized, is not within
the State’s prerogative finally to decide; rather, adequacy “is
itself a federal question.” Douglas v. Alabama, 380 U. S.
415, 422 (1965).
Lee does not suggest that Rules 24.09 and 24.10, as
brought to bear on this case by the Missouri Court of Ap-
peals, depended in any way on federal law. Nor does he
question the general applicability of the two codified Rules.
He does maintain that both Rules—addressed initially to
Missouri trial courts, but in his case invoked only at the
“actual innocence” to escape the procedural bar because “the factual
basis for the [alibi witness] affidavits he relies on as new evidence existed
at the time of the trial and could have been presented earlier.” Id., at
1039.

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appellate stage—are inadequate, under the extraordinary
circumstances of this case, to close out his federal, fair-
opportunity-to-defend claim. We now turn to that disposi-
tive issue.8
Ordinarily, violation of “firmly established and regularly
followed” state rules—for example, those involved in this
case—will be adequate to foreclose review of a federal claim.
James v. Kentucky, 466 U. S. 341, 348 (1984); see Ford v.
Georgia, 498 U. S. 411, 422–424 (1991). There are, however,
exceptional cases in which exorbitant application of a gener-
ally sound rule renders the state ground inadequate to stop
consideration of a federal question. See Davis v. Wechsler,
263 U. S. 22, 24 (1923) (Holmes, J.) (“Whatever springes the
State may set for those who are endeavoring to assert rights
that the State confers, the assertion of federal rights, when
plainly and reasonably made, is not to be defeated under the
name of local practice.”). This case fits within that limited
category.
Our analysis and conclusion are informed and controlled
by Osborne v. Ohio, 495 U. S. 103 (1990). There, the Court
considered Osborne’s objections that his child pornography
conviction violated due process because the trial judge had
not required the government to prove two elements of the
alleged crime: lewd exhibition and scienter. Id., at 107, 122–
125. The Ohio Supreme Court held the constitutional ob-
jections procedurally barred because Osborne had failed to
8 Missouri argues in two footnotes to its brief that Lee’s federal claim
fails for a reason independent of Rules 24.09 and 24.10, namely, that he
raised only state-law objections to denial of the continuance motion in
state court. Brief for Respondent 16, n. 2, 32, n. 7. Lee urges, in re-
sponse, that his direct appeal brief explicitly invoked due process and his
right to present witnesses in his defense as guaranteed by the Fifth, Sixth,
and Fourteenth Amendments. Reply Brief 11, n. 4 (citing App. 86–87,
90–95). Missouri did not advance its current contention in the State’s
Eighth Circuit brief or in its brief in opposition to the petition for certio-
rari. We therefore exercise “our discretion to deem the [alleged] defect
waived.” Oklahoma City v. Tuttle, 471 U. S. 808, 816 (1985).

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object contemporaneously to the judge’s charge, which did
not instruct the jury that it could convict only for conduct
that satisfied both the scienter and the lewdness elements.
Id., at 107–108, 123; see Ohio Rule Crim. Proc. 30(A) (1989)
(“A party may not assign as error the giving or the failure
to give any instructions unless he objects thereto before
the jury retires to consider its verdict, stating specifically
the matter to which he objects and the grounds of his
objection.”).
We agreed with the State that Osborne’s failure to urge
the trial court to instruct the jury on scienter qualified as an
“adequate state-law ground [to] preven[t] us from reaching
Osborne’s due process contention on that point.” 495 U. S.,
at 123. Ohio law, which was not in doubt, required proof
of scienter unless the applicable statute specified otherwise.
Id., at 112–113, n. 9, 123. The State’s contemporaneous ob-
jection rule, we observed, “serves the State’s important in-
terest in ensuring that counsel do their part in preventing
trial courts from providing juries with erroneous instruc-
tions.” Id., at 123.
“With respect to the trial court’s failure to instruct on
lewdness, however, we reach[ed] a different conclusion.”
Ibid. Counsel for Osborne had made his position on that
essential element clear in a motion to dismiss overruled just
before trial, and the trial judge, “in no uncertain terms,”
id., at 124, had rejected counsel’s argument. After a brief
trial, the judge charged the jury in line with his ruling
against Osborne on the pretrial motion to dismiss. Coun-
sel’s failure to object to the charge by reasserting the argu-
ment he had made unsuccessfully on the motion to dismiss,
we held, did not deter our disposition of the constitutional
question. “Given this sequence of events,” we explained, it
was proper to “reach Osborne’s [second] due process claim,”
for Osborne’s attorney had “pressed the issue of the State’s
failure of proof on lewdness before the trial court and . . .
nothing would be gained by requiring Osborne’s lawyer to

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object a second time, specifically to the jury instructions.”
Ibid. In other words, although we did not doubt the general
applicability of the Ohio Rule of Criminal Procedure requir-
ing contemporaneous objection to jury charges, we neverthe-
less concluded that, in this atypical instance, the Rule would
serve “no perceivable state interest.” Ibid. (internal quota-
tion marks omitted).
Our decision, we added in Osborne, followed from “the
general principle that an objection which is ample and timely
to bring the alleged federal error to the attention of the
trial court and enable it to take appropriate corrective action
is sufficient to serve legitimate state interests, and there-
fore sufficient to preserve the claim for review here.” Id.,
at 125 (quoting Douglas, 380 U. S., at 422 (internal quotation
marks omitted)). This general principle, and the unusual
“sequence of events” before us—rapidly unfolding events
that Lee and his counsel could not have foreseen, and for
which they were not at all responsible—similarly guide our
judgment in this case.
The dissent strives mightily to distinguish Osborne, an
opinion Justices Kennedy and Scalia joined, but cannot
do so convincingly. In an intricate discussion of Osborne
longer than the relevant section of Osborne itself, the dissent
crafts its own rationales for the decision and sweeps away
language its design cannot accommodate as “unnecessary”
and “in tension” with the rest of the Court’s analysis, post,
at 399.
As attentive reading of the relevant pages of Osborne will
confirm, 495 U. S., at 123–125, we here rely not on “isolated
statements” from the opinion, post, at 396, but solidly on its
analysis and holding on “the adequacy of state procedural
bars to the assertion of federal questions.” 495 U. S., at 125
(quoting Douglas, 380 U. S., at 422 (internal quotation
marks omitted)).
According to the dissent in this case, Osborne’s discrete
section trained on the adequacy of state-law grounds to bar

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federal review had two bases. First, the dissent views as
central to Osborne the “unforeseeab[ility]” of the Ohio Su-
preme Court’s limiting construction of the child pornography
statute at issue there, i. e., that court’s addition of the “lewd-
ness” element on which Osborne failed to request a jury
charge. Post, at 397–398; see also post, at 399. The dissent
here is characteristically inventive. Osborne spoke not of
the predictability vel non of the Ohio Supreme Court’s
construction; instead, this Court asked whether anything
“would be gained by requiring Osborne’s lawyer to object a
second time” on the question of lewdness, 495 U. S., at 124,
and answered that question with a firm “no.” Tellingly, Os-
borne noted, without criticism, the Ohio Supreme Court’s
own indication that the limiting construction of the child por-
nography statute was not unpredictable, for it flowed from
the “proper purposes” exceptions set out by the Legislature.
Id., at 113, n. 10.
Second, the dissent suggests that Osborne is enlightening
only as to “Ohio’s treatment of overbreadth objections.”
Post, at 398. Osborne, the dissent contends, “stands for the
proposition that once a trial court rejects an overbreadth
challenge, the defendant cannot be expected . . . to lodge a
foreclosed objection to the jury instructions.” Post, at 399.
In truth, Ohio had no special-to-the-First Amendment “re-
quirement.” Ibid.9 Rather, Ohio’s firmly established, gen-
erally applicable practice was a standard contemporaneous
objection rule for challenges to jury charges. See Ohio Rule
Crim. Proc. 30(A) (1989). As Osborne paradigmatically il-
lustrates, that Rule is unassailable in most instances, i. e., it
ordinarily serves a legitimate governmental interest; in rare
9 The discrete section of Osborne in point, Part III, cites no First
Amendment decision; it relies solely on decisions holding asserted state-
law grounds inadequate in other contexts. See Osborne v. Ohio, 495 U. S.
103, 122–125 (1990) (citing James v. Kentucky, 466 U. S. 341, 349 (1984);
Davis v. Wechsler, 263 U. S. 22, 24 (1923); Douglas v. Alabama, 380 U. S.
415, 421–422 (1965)).

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380 LEE v. KEMNA
Opinion of the Court
circumstances, however, unyielding application of the gen-
eral rule would disserve any perceivable interest.
The asserted procedural oversights in Lee’s case, his al-
leged failures fully to comply with Rules 24.09 and 24.10,
were first raised more than two and a half years after Lee’s
trial. The two Rules, Missouri maintains, “work together
to enhance the reliability of a trial court’s determination of
whether to delay a scheduled criminal trial due to the ab-
sence of a witness.” Brief for Respondent 29 (footnote omit-
ted) (emphasis added). Nevertheless, neither the prosecu-
tor nor the trial judge so much as mentioned the Rules as
a reason for denying Lee’s continuance motion.10 If either
prosecutor or judge considered supplementation of Lee’s mo-
tion necessary, they likely would have alerted the defense at
the appropriate time, and Lee would have had an opportu-
nity to perfect his plea to hold the case over until the next
day. Rule 24.10, we note, after listing the components of a
continuance motion, contemplates subsequent perfection: “If
the court shall be of the opinion that the affidavit is insuffi-
cient it shall permit it to be amended.”
The State, once content that the continuance motion was
ripe for trial court disposition on the merits, had a second
thought on appeal. It raised Rule 24.10 as a new argument
in its brief to the Missouri Court of Appeals; even then, the
State did not object to the motion’s oral form. App. 107–108,
110–115. The Missouri Court of Appeals, it seems, raised
Rule 24.09’s writing requirements (“a written motion accom-
panied by [an] affidavit”) on its own motion.11
10 By contrast, the judge specifically directed Lee’s counsel to supple-
ment counsel’s oral motion for judgment of acquittal with a written mo-
tion. See supra, at 370.
11 The belated assertion of these Rules also explains why Lee did not
contend in his state postconviction motion that counsel was constitution-
ally ineffective for failing meticulously to comply with Rules 24.09 and
24.10. That postconviction motion had been made and denied in the trial
court before the Rules’ entry into the case when Lee proceeded on appeal.
See supra, at 371, n. 3.

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Three considerations, in combination, lead us to conclude
that this case falls within the small category of cases in
which asserted state grounds are inadequate to block adjudi-
cation of a federal claim. First, when the trial judge denied
Lee’s motion, he stated a reason that could not have been
countered by a perfect motion for continuance. The judge
said he could not carry the trial over until the next day
because he had to be with his daughter in the hospital;
the judge further informed counsel that another scheduled
trial prevented him from concluding Lee’s case on the follow-
ing business day. Although the judge hypothesized that
the witnesses had “abandoned” Lee, id., at 22, he had not
“a scintilla of evidence or a shred of information” on which
to base this supposition, 213 F. 3d, at 1040 (Bennett, C. J.,
dissenting).12
12 The dissent suggests that Lee’s counsel decided not to put on the alibi
defense promised in his opening statement because the prosecution’s wit-
nesses caused that planned defense to “collaps[e] altogether.” See post,
at 402. The record refutes that suggestion. Lee’s counsel knew before
he promised an alibi defense in his opening that the State planned to rebut
it: The prosecutor’s opening statement—given prior to defense counsel’s—
outlined the rebuttal witnesses’ expected testimony. Tr. 178–187. Like-
wise, the prosecutor’s statement that she “had in reserve other witnesses
prepared to rebut the alibi testimony,” post, at 403, was part of her open-
ing statement, see Tr. 187. Furthermore, the alibi witnesses would have
known of Lee’s sentence in an unrelated case—a fact that the dissent sug-
gests gave them “second thoughts” about testifying, post, at 403—a month
before they traveled to Missouri. Tr. 25–26.
Utterly confounding are the dissent’s depictions of “the realities of
trial,” post, at 400, capped by the statement that “[b]efore any careful trial
judge granted a continuance in these circumstances, he or she would want
a representation that the movant believed the missing witnesses were still
prepared to offer the alibi testimony,” post, at 403. Rule 24.10, the dissent
insists, if meticulously observed, would have produced the very thing the
court “needed to grant the motion: an assurance that the defense wit-
nesses were still prepared to offer material testimony.” Post, at 400; see
post, at 403. No motion in the immediacy of the witnesses’ sudden disap-
pearance, however, could have provided assurance that they were still
prepared to offer material testimony. The “careful trial judge” does not

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382 LEE v. KEMNA
Opinion of the Court
Second, no published Missouri decision directs flawless
compliance with Rules 24.09 and 24.10 in the unique circum-
stances this case presents—the sudden, unanticipated, and at
the time unexplained disappearance of critical, subpoenaed
witnesses on what became the trial’s last day.13 Lee’s pre-
dicament, from all that appears, was one Missouri courts had
not confronted before. “[A]lthough [the rules themselves]
may not [have been] novel, . . . [their] application to the facts
here was.” Sullivan v. Little Hunting Park, Inc., 396 U. S.
229, 245 (1969) (Harlan, J., dissenting).
Third and most important, given “the realities of trial,”
post, at 400, Lee substantially complied with Missouri’s key
Rule. As to the “written motion” requirement, Missouri’s
brief in this Court asserted: “Nothing would have prevented
counsel from drafting a brief motion and affidavit complying
with Rul[e] 24.09 in longhand while seated in the courtroom.”
demand the impossible. The witnesses’ absence was unexplained, and
could not be explained on the afternoon of their disappearance. That is
why an overnight continuance to locate the witnesses was so “very valu-
able to [Lee’s] case.” See supra, at 369.
13 Missouri cites five cases as examples of the state courts’ enforcement
of Rules 24.09 and 24.10 (or their predecessors) “even in cases of exigency.”
Brief for Respondent 25–26. The five cases are: State v. Gadwood, 342
Mo. 466, 479, 116 S. W. 2d 42, 49 (1937) (defendant’s counsel knew, or should
have known, of likelihood of witnesses’ inability to appear two days before
trial); State v. Cuckovich, 485 S. W. 2d 16, 21 (Mo. 1972) (en banc) (defend-
ant arrived at court on first day of trial with a letter from a doctor explain-
ing that witness was ill); State v. Scott, 487 S. W. 2d 528, 530 (Mo. 1972)
(absent witness was not subpoenaed); State v. Settle, 670 S. W. 2d 7, 13–14
(Mo. App. 1984) (deficient application filed six days before trial); State v.
Freeman, 702 S. W. 2d 869, 874 (Mo. App. 1985) (absent witness had told
officer serving subpoena that she would not appear). All of these cases
are readily distinguishable; none involved the sudden and unexplained
disappearance of a subpoenaed witness in the midst of trial. The ade-
quacy of a state ground, of course, does not depend on an appellate de-
cision applying general rules to the precise facts of the case at bar. But
here, no prior decision suggests strict application to a situation such as
Lee’s.

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Brief for Respondent 30.14 At oral argument, however, Mis-
souri’s counsel edged away from this position. Counsel
stated: “I’m not going to stand on the formality . . . of a
writing or even the formality of an affidavit.” Tr. of Oral
Arg. 48. This concession was well advised. Missouri does
not rule out oral continuance motions; they are expressly
authorized, upon consent of the adverse party, by Rule 24.09.
And the written transcript of the brief trial court proceed-
ings, see supra, at 367, enabled an appellate court to compre-
hend the situation quickly. In sum, we are drawn to the
conclusion reached by the Eighth Circuit dissenter: “[A]ny
seasoned trial lawyer would agree” that insistence on a writ-
ten continuance application, supported by an affidavit, “in
the midst of trial upon the discovery that subpoenaed wit-
nesses are suddenly absent, would be so bizarre as to inject
an Alice-in-Wonderland quality into the proceedings.” 213
F. 3d, at 1047.
Regarding Rule 24.10, the only Rule raised on appeal by
the prosecution, see supra, at 371–372, the Missouri Court of
Appeals’ decision was summary. Although that court did
not specify the particular components of the Rule neglected
by Lee, the State here stresses two: “Lee’s counsel never
mentioned during his oral motion for continuance the testi-
mony he expected the missing witnesses to give”; further,
he “gave the trial court no reason to believe that the missing
witnesses could be located within a reasonable time.” Brief
for Respondent 31.
These matters, however, were either covered by the oral
continuance motion or otherwise conspicuously apparent on
the record. The testimony that the alibi witnesses were
expected to give had been previewed during voir dire at
the outset of the three-day trial, then detailed in defense
counsel’s opening statement delivered just one day before
the continuance motion. App. 10–13; see Osborne, 495 U. S.,
14 Missouri’s brief did not address the requirement that the affidavit be
notarized.

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384 LEE v. KEMNA
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at 123 (defense counsel’s failure to object to jury charge did
not bar consideration of federal claim where counsel had
pressed the basic objection in a motion to dismiss made im-
mediately before “brief ” trial). Two of the prosecution’s
witnesses testified in part to anticipate and rebut the alibi.
Tr. 443–487. An alibi instruction was apparently taken up
at the charge conference held less than an hour before the
trial court denied the continuance motion. See supra, at
368–369, n. 1. When defense counsel moved for a continu-
ance, the judge asked a question indicating his recognition
that alibi witness Gladys Edwards was Lee’s mother. See
supra, at 370, n. 2.
Given the repeated references to the anticipated alibi wit-
ness testimony each day of trial, it is inconceivable that any-
one in the courtroom harbored a doubt about what the wit-
nesses had traveled from California to Missouri to say on the
stand or why their testimony was material, indeed indispen-
sable, to the defense. It was also evident that no witness
then in the Kansas City vicinity could effectively substitute
for the family members with whom Lee allegedly stayed in
Ventura, California. See Rule 24.10(a) and (c) (movant shall
show “the materiality of the evidence sought,” “[w]hat par-
ticular facts the affiant believes the witness will prove,” and
that “no other person” available to the movant could “so fully
prove the same facts”).
Moreover, Lee showed “reasonable grounds for belief ”
that the continuance would serve its purpose. See Rule
24.10(b). He said he knew the witnesses had not left Kansas
City because they were to “ministe[r]” there the next two
evenings; he provided their local address; and he sought less
than a day’s continuance to enforce the subpoenas for their
attendance. App. 16–18.
Concerning his “diligence . . . to obtain” the alibi testi-
mony, see Rule 24.10(a), Lee and his counsel showed: the
witnesses had voluntarily traveled from California to appear
at the trial; counsel had subpoenaed the witnesses when he

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interviewed them in Kansas City; the witnesses had tele-
phoned counsel the evening before the third trial day and
had agreed to come to court that next day; the witnesses in
fact were in court at 8:30 in the morning waiting in a witness
room; and Lee saw them during a recess. App. 16–18.
Countering “procurement” of the witnesses’ absence by the
defense, see Rule 24.10(d), Lee affirmed that he did not know
“why they left” or “where they went,” and asked for just
“a couple hours’ continuance [to] try to locate them.” App.
17–18.
Rule 24.10, like other state and federal rules of its genre,
serves a governmental interest of undoubted legitimacy. It
is designed to arm trial judges with the information needed
to rule reliably on a motion to delay a scheduled criminal
trial. The Rule’s essential requirements, however, were
substantially met in this case. Few transcript pages need
be read to reveal the information called for by Rule 24.10.
“[N]othing would [have] be[en] gained by requiring” Lee’s
counsel to recapitulate in (a), (b), (c), (d) order the showings
the Rule requires. See Osborne, 495 U. S., at 124; cf. Staub
v. City of Baxley, 355 U. S. 313, 319–320 (1958) (failure to
challenge “specific sections” of an ordinance not an adequate
state ground barring review of federal claim when party
challenged constitutionality of entire ordinance and all sec-
tions were “interdependent”). “Where it is inescapable that
the defendant sought to invoke the substance of his federal
right, the asserted state-law defect in form must be more
evident than it is here.” James v. Kentucky, 466 U. S., at
351.15
15 The dissent, indulging in hyperbole, describes our narrow opinion
as a “comb” and “searc[h]” order to lower courts. Post, at 395. We hold,
simply and only, that Lee satisfied Rule 24.10’s essential elements. Just
as in Osborne, see supra, at 377–378, we place no burden on courts to
rummage through a ponderous trial transcript in search of an excuse for
a defense counsel’s lapse. The dissent, in this and much else, tilts at a
windmill of its own invention.

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The dissent critiques at great length Henry v. Mississippi,
379 U. S. 443 (1965), a case on which we do not rely in reach-
ing our decision.16 See post, at 393–395, 406. This pro-
tracted exercise is a prime example of the dissent’s vigorous
attack on an imaginary opinion that bears scant, if any, re-
semblance to the actual decision rendered today. We chart
no new course. We merely apply Osborne’s sound reasoning
and limited holding to the circumstances of this case. If the
dissent’s shrill prediction that today’s decision will disrupt
our federal system were accurate, we would have seen clear
signals of such disruption in the 11 years since Osborne.
The absence of even dim distress signals demonstrates both
the tight contours of Osborne and the groundlessness of
the dissent’s frantic forecast of doom. See United States
v. Travers, 514 F. 2d 1171, 1174 (CA2 1974) (Friendly, J.)
(“Cassandra-like predictions in dissent are not a sure guide
to the breadth of the majority’s ruling”).
It may be questioned, moreover, whether the dissent, put
to the test, would fully embrace the unyielding theory that
it is never appropriate to evaluate the state interest in a
procedural rule against the circumstances of a particular
16 Henry has been called “radical,” post, at 393 (quoting R. Fallon, D.
Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the
Federal System 584 (4th ed. 1996)), not for pursuing an “as applied” ap-
proach, as the dissent states, but for suggesting that the failure to comply
with an anterior procedure was cured by compliance with some subse-
quent procedure. See id., at 584–585. In Henry, the Court indicated
that although there was no contemporaneous objection at trial to the ad-
mission of evidence alleged to have been derived from an unconstitutional
search, a directed verdict motion made at the end of the prosecution’s case
was an adequate substitute. 379 U. S., at 448–449. Nothing of the sort
is involved in this case. Lee is not endeavoring to designate some later
motion, e. g., one for a new trial, as an adequate substitute for a continu-
ance motion. The question here is whether the movant must enunci-
ate again, when making the right motion at the right time, supporting
statements plainly and repeatedly made the days before. See supra, at
367–368. On whether such repetition serves a legitimate state interest,
Osborne, not Henry, controls.

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case. See post, at 393–395. If that theory holds, it would
matter not at all why the witnesses left. Even if the evi-
dence would show beyond doubt that the witnesses left be-
cause a court functionary told them to go, saying their testi-
mony would not be needed until the next day, see supra, at
373, n. 6, Lee would lose under the dissent’s approach. And
that result would be unaffected should it turn out that the
functionary acted on the instigation of a prosecutor who
knew the judge would be at the hospital with his daughter
the next day. See supra, at 369. The particular applica-
tion, never mind how egregious, would be ignored so long as
the Rule, like the mine run of procedural rules, generally
serves a legitimate state interest.
To summarize, there was in this case no reference what-
ever in the trial court to Rules 24.09 and 24.10, the purported
procedural impediments the Missouri Court of Appeals
later pressed. Nor is there any indication that formally
perfect compliance with the Rules would have changed
the trial court’s decision. Furthermore, no published Mis-
souri decision demands unmodified application of the Rules
in the urgent situation Lee’s case presented. Finally, the
purpose of the Rules was served by Lee’s submissions
both immediately before and at the short trial. Under the
special circumstances so combined, we conclude that no ade-
quate state-law ground hinders consideration of Lee’s fed-
eral claim.17
Because both the District Court and the Court of Appeals
held Lee’s due process claim procedurally barred, neither
court addressed it on the merits. We remand the case for
that purpose. See National Collegiate Athletic Assn. v.
17 In view of this disposition, we do not reach further questions raised
by Lee, i. e., whether he has shown “cause” and “prejudice” to excuse any
default, Wainwright v. Sykes, 433 U. S. 72, 90–91 (1977), or has made suffi-
cient showing of “actual innocence” under Schlup v. Delo, 513 U. S. 298,
315 (1995), to warrant a hearing of the kind ordered in that case.

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388 LEE v. KEMNA
Kennedy, J., dissenting
Smith, 525 U. S. 459, 470 (1999) (We ordinarily “do not decide
in the first instance issues not decided below.”).
* * *
For the reasons stated, the judgment of the United States
Court of Appeals for the Eighth Circuit is vacated, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Justice Kennedy, with whom Justice Scalia and
Justice Thomas join, dissenting.
The Court’s decision commits us to a new and, in my view,
unwise course. Its contextual approach places unnecessary
and unwarranted new responsibilities on state trial judges,
injects troubling instability into the criminal justice system,
and reaches the wrong result even under its own premises.
These considerations prompt my respectful dissent.
I
The rule that an adequate state procedural ground can bar
federal review of a constitutional claim has always been
“about federalism,” Coleman v. Thompson, 501 U. S. 722,
726 (1991), for it respects state rules of procedure while en-
suring that they do not discriminate against federal rights.
The doctrine originated in cases on direct review, where
the existence of an independent and adequate state ground
deprives this Court of jurisdiction. The rule applies with
equal force, albeit for somewhat different reasons, when fed-
eral courts review the claims of state prisoners in habeas
corpus proceedings, where ignoring procedural defaults
would circumvent the jurisdictional limits of direct review
and “undermine the State’s interest in enforcing its laws.”
Id., at 731.
Given these considerations of comity and federalism, a pro-
cedural ground will be deemed inadequate only when the

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state rule “force[s] resort to an arid ritual of meaningless
form.” Staub v. City of Baxley, 355 U. S. 313, 320 (1958).
Staub’s formulation was imprecise, but the cases that fol-
lowed clarified the two essential components of the adequate
state ground inquiry: First, the defendant must have notice
of the rule; and second, the State must have a legitimate
interest in its enforcement.
The Court need not determine whether the requirement
of Missouri Supreme Court Rule 24.09 that all continuance
motions be made in writing would withstand scrutiny under
the second part of this test (or, for that matter, whether Lee
had cause not to comply with it, cf. infra, at 405). Even if
it could be assumed, for the sake of argument, that Rule
24.09 would not afford defendants a fair opportunity to raise
a federal claim, the same cannot be said of Rule 24.10. The
latter Rule simply requires a party requesting a continuance
on account of missing witnesses to explain why it is needed,
and the Rule serves an undoubted and important state inter-
est in facilitating the orderly management of trials. Other
States have similar requirements. See, e. g., Ind. Code § 35–
36–7–1(b) (1993); La. Code Crim. Proc. Ann., Art. 709 (West
1981); Miss. Code Ann. § 99–15–29 (1972); Okla. Stat., Tit. 12,
§ 668 (1993); S. C. Rule Crim. Proc. 7(b) (1990); Tex. Code
Crim. Proc. Ann., Art. 29.06 (Vernon 1965); Vt. Rule Crim.
Proc. 50(c)(1) (1983); Wash. Rev. Code § 10.46.080 (1990).
The Court’s explicit deprecation of Rule 24.10—and implicit
deprecation of its many counterparts—is inconsistent with
the respect due to state courts and state proceedings.
A
The initial step of the adequacy inquiry considers whether
the State has put litigants on notice of the rule. The Court
will disregard state procedures not firmly established and
regularly followed. In James v. Kentucky, 466 U. S. 341,
346 (1984), for example, the rule was “not always clear or
closely hewn to”; in NAACP v. Alabama ex rel. Patterson,

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390 LEE v. KEMNA
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357 U. S. 449, 457 (1958), “petitioner could not fairly be
deemed to have been apprised of [the rule’s] existence.” As
the majority acknowledges, ante, at 367, Rule 24.10 is not
in this category, for unlike the practices at issue in James
and Patterson, Rule 24.10 is codified and followed in regu-
lar practice.
Several of the considerations offered in support of today’s
decision, however, would seem to suggest that the Court
believes Rule 24.10 was not firmly established or regularly
followed at the time of Lee’s trial. For example, the ma-
jority cites the lack of published decisions directing flaw-
less compliance with the Rule in the unique circumstances
this case presents. Ante, at 382. While this description of
Missouri law is dubious, see, e. g., State v. Scott, 487 S. W.
2d 528, 530 (Mo. 1972), the Court’s underlying, quite novel
argument ignores the nature of rulemaking. If the Court
means what it says on this point, few procedural rules will
give rise to an adequate state ground. Almost every case
presents unique circumstances that cannot be foreseen
and articulated by prior decisions, and general rules like
Rule 24.10 are designed to eliminate second-guessing about
the rule’s applicability in special cases. Rule 24.10’s plain
language admits of no exception, and the Court cites no
Missouri case establishing a judge-made exemption in any
circumstances, much less circumstances close to these. Its
applicability here was clear.
The Court also ventures into new territory by implying
that the trial judge’s failure to cite the Rule was meaning-
ful, ante, at 366, 380, 387, and by noting that he did not
give a reason for denying the continuance that could have
been addressed by a motion complying with the Rule, ante,
at 381. If these considerations were significant, however,
we would have relied upon them in previous cases where
the trial court’s denial of the defendant’s motion on the
merits was affirmed by the state appellate court because of
an uncited procedural defect. See, e. g., James v. Kentucky,

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supra, at 343–344; Staub v. City of Baxley, supra, at 317–
318. None of these decisions used this rationale to disre-
gard a state procedural rule, and with good reason. To re-
quire trial judges, as a matter of federal law, to cite their
precise grounds for decision would place onerous burdens
on the state courts, and it is well settled that an appellate
tribunal may affirm a trial court’s judgment on any ground
supported by the record. See Smith v. Phillips, 455 U. S.
209, 215, n. 6 (1982). Here, moreover, the uncited procedural
rule was designed both to “permi[t] the trial court to pass
on the merits,” State v. Robinson, 864 S. W. 2d 347, 349 (Mo.
App. 1993), and to facilitate the appellate court’s review of
asserted due process errors. Notwithstanding the Court’s
guess about the judge’s and prosecution’s inner thoughts con-
cerning the completeness of Lee’s motion, see ante, at 380,
the Missouri Court of Appeals tells us that Lee’s failure to
comply with the Rule is considered consequential as a matter
of state law. If Lee had complied with Rule 24.10, the trial
court might have granted the continuance or given a differ-
ent reason for denying it. The trial court, in effect, is
deemed to have relied on Rule 24.10 when it found Lee had
not made a sufficient showing.
Lee was on notice of the applicability of Rule 24.10, and
the Court appears to recognize as much. The consideration
most important to the Court’s analysis, see ante, at 382, re-
lates not to this initial question, but rather to the second
part of the adequacy inquiry, which asks whether the rule
serves a legitimate state interest. Here, too, in my respect-
ful view, the Court errs.
B
A defendant’s failure to comply with a firmly established
and regularly followed rule has been deemed an inadequate
state ground only when the State had no legitimate interest
in the rule’s enforcement. Osborne v. Ohio, 495 U. S. 103,
124 (1990); James v. Kentucky, supra, at 349; Michigan
v. Tyler, 436 U. S. 499, 512, n. 7 (1978). Most state pro-

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cedures are supported by various legitimate interests, so
established rules have been set aside only when they ap-
peared to be calculated to discriminate against federal law,
or, as one treatise puts it, they did not afford the defend-
ant “a reasonable opportunity to assert federal rights.” 16B
C. Wright, A. Miller, & E. Cooper, Federal Practice and Pro-
cedure § 4027, p. 392 (2d ed. 1996) (hereinafter Wright &
Miller). See, e. g., Douglas v. Alabama, 380 U. S. 415, 422–
423 (1965) (rule requiring continuous repetition of identi-
cal constitutional objections); Staub v. City of Baxley, 355
U. S., at 317–318 (rule requiring defendant to challenge
constitutionality of individual sections of statute); Davis v.
Wechsler, 263 U. S. 22, 24 (1923) (rule waiving jurisdictional
objections upon entry of appearance of federal defendant’s
successor-in-interest).
In light of this standard, the adequacy of Rule 24.10 has
been demonstrated. Delays in criminal trials can be “a dis-
tinct reproach to the administration of justice,” Powell v.
Alabama, 287 U. S. 45, 59 (1932), and States have a strong
interest in ensuring that continuances are granted only when
necessary. Rule 24.10 anticipates that at certain points dur-
ing a trial, important witnesses may not be available. In
these circumstances, a continuance may be appropriate if
the movant makes certain required representations demon-
strating good cause to believe the continuance would make a
real difference to the case.
The Court acknowledges, as it must, that Rule 24.10 does
not discriminate against federal law or deny defendants a
reasonable opportunity to assert their rights. Instead, the
Rule “serves a governmental interest of undoubted legiti-
macy” in “arm[ing] trial judges with the information needed
to rule reliably on a motion to delay a scheduled criminal
trial.” Ante, at 385. Nor is there any doubt Lee did not
comply with the Rule, for the Missouri court’s word on that
state-law question is final. See Elmendorf v. Taylor, 10
Wheat. 152, 159–160 (1825) (Marshall, C. J.). The Court’s

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Kennedy, J., dissenting
acceptance of these two premises should lead it to conclude
that Lee’s violation of the Rule was an adequate state
ground for the Missouri court’s decision.
Yet the Court deems Lee’s default inadequate because, it
says, to the extent feasible under the circumstances, he sub-
stantially complied with the Rule’s essential requirements.
Ante, at 385. These precise terms have not been used in the
Court’s adequacy jurisprudence before, and it is necessary
to explore their implications. The argument is not that
Missouri has no interest in enforcing compliance with the
Rule in general, but rather that it had no interest in en-
forcing full compliance in this particular case. This is so,
the Court holds, because the Rule’s essential purposes were
substantially served by other procedural devices, such as
opening statement, voir dire, and Lee’s testimony on the
stand. These procedures, it is said, provided the court
with the information the Rule requires the motion itself
to contain. Ante, at 382–385. So viewed, the Court’s
substantial-compliance terminology begins to look more fa-
miliar: It simply paraphrases the flawed analytical approach
first proposed by the Court in Henry v. Mississippi, 379 U. S.
443 (1965), but not further ratified or in fact used to set aside
a procedural rule until today.
Before Henry, the adequacy inquiry focused on the general
legitimacy of the established procedural rule, overlooking
its violation only when the rule itself served no legitimate
interest. See, e. g., Douglas v. Alabama, supra, at 422–423;
Davis v. Wechsler, supra, at 24. Henry was troubling, and
much criticized, because it injected an as-applied factor into
the equation. See, e. g., R. Fallon, D. Meltzer, & D. Shapiro,
Hart and Wechsler’s The Federal Courts and the Federal
System 584 (4th ed. 1996) (hereinafter Hart & Wechsler)
(calling this element of Henry “radical”); 16B Wright &
Miller § 4028, at 394 (arguing that Henry’s approach—under
which “state procedural rules may accomplish forfeiture
only if necessary to further a legitimate state interest in the

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394 LEE v. KEMNA
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actual circumstances of application to the very case before
the court”—“unduly subordinates state interests”); cf. ante,
at 376 (“There are . . . exceptional cases in which exorbitant
application of a generally sound rule renders the state
ground inadequate”). The petitioner in Henry had de-
faulted his Fourth Amendment claim in state court by failing
to lodge a contemporaneous objection to the admission of the
contested evidence. Despite conceding the legitimate state
interest in enforcing this common rule, the Court vacated
the state-court judgment, proposing that the default may
have been inadequate because the rule’s “purpose . . . may
have been substantially served by petitioner’s motion at the
close of the State’s evidence asking for a directed verdict.”
Henry v. Mississippi, supra, at 448. The suggestion, then,
was that a violation of a rule serving a legitimate state in-
terest may be ignored when, in the peculiar circumstances
of a given case, the defendant utilized some other procedure
serving the same interest.
For all Henry possessed in mischievous potential, how-
ever, it lacked significant precedential effect. Henry itself
did not hold the asserted state ground inadequate; instead
it remanded for the state court to determine whether
“petitioner’s counsel deliberately bypassed the opportunity
to make timely objection in the state court.” 379 U. S., at
449–453. The cornerstone of that analysis, the deliberate-
bypass standard of Fay v. Noia, 372 U. S. 391, 426–434
(1963), later was limited to its facts in Wainwright v. Sykes,
433 U. S. 72, 87–88 (1977), and then put to rest in Coleman
v. Thompson, 501 U. S., at 750. Subsequent cases main-
tained the pre-Henry focus on the general validity of the
challenged state practice, either declining to cite Henry or
framing its holding in innocuous terms. See, e. g., James v.
Kentucky, 466 U. S., at 349; Monger v. Florida, 405 U. S. 958
(1972); see also Hart & Wechsler 585–586 (describing the
“[d]emise of Henry”); 16B Wright & Miller § 4020, at 291
(“Later decisions, over a period now measured in decades,

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are more remarkable for frequently omitting any reference
to the Henry decision than for clarifying it”).
There is no meaningful distinction between the Henry
Court’s analysis and the standard the Court applies today,
and this surprising reinvigoration of the case-by-case ap-
proach is contrary to the principles of federalism under-
lying our habeas corpus jurisprudence. Procedural rules,
like the substantive laws they implement, are the products
of sovereignty and democratic processes. The States have
weighty interests in enforcing rules that protect the integ-
rity and uniformity of trials, even when “the reason for a
rule does not clearly apply.” Staub v. City of Baxley, 355
U. S., at 333 (Frankfurter, J., dissenting). Regardless of the
particular facts in extraordinary cases, then, Missouri has a
freestanding interest in Rule 24.10 as a rule.
By ignoring that interest, the majority’s approach invites
much mischief at criminal trials, and the burden imposed
upon States and their courts will be heavy. All require-
ments of a rule are, in the rulemaker’s view, essential to
fulfill its purposes; imperfect compliance is thus, by defini-
tion, not compliance at all. Yet the State’s sound judgment
on these matters can now be overridden by a federal court,
which may determine for itself, given its own understanding
of the rule’s purposes, whether a requirement was essential
or compliance was substantial in the unique circumstances
of any given case. Henceforth, each time a litigant does
not comply with an established state procedure, the judge
must inquire, even “in the midst of trial, . . . whether non-
compliance should be excused because some alternative pro-
cedure might be deemed adequate in the particular situa-
tion.” Hart & Wechsler 585. The trial courts, then the
state appellate courts, and, in the end, the federal habeas
courts in numerous instances must comb through the full
transcript and trial record, searching for ways in which the
defendant might have substantially complied with the essen-
tial requirements of an otherwise broken rule.

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The Court seeks to ground its renewal of Henry’s long-
quiescent dictum in our more recent decision in Osborne v.
Ohio, 495 U. S., at 122–125. Though isolated statements in
Osborne might appear to support the majority’s approach—
or, for that matter, Henry’s approach—Osborne’s holding
does not.
This case bears little resemblance, if any, to Osborne. The
Ohio statute in question there made it criminal to possess
a photograph of a minor in “a state of nudity.” Ohio Rev.
Code Ann. § 2907.323(A)(3) (Supp. 1989). In a pretrial mo-
tion to dismiss, Osborne objected to the statute as overbroad
under the First Amendment. The state trial court denied
the motion, allowed the case to proceed, and adopted no lim-
iting construction of the statute when it instructed the jury
on the elements of the crime.
In his appeal to the Ohio Supreme Court, Osborne argued
that the statute violated the First Amendment for two rea-
sons: First, it prohibited the possession of nonlewd material;
and second, it lacked a scienter requirement. In rejecting
the first contention, the appellate court did what the trial
court had not: It adopted a limiting construction so that “nu-
dity constitute[d] a lewd exhibition or involve[d] a graphic
focus on the genitals.” State v. Young, 37 Ohio St. 3d 249,
252, 525 N. E. 2d 1363, 1368 (1988). In addressing Osborne’s
second point, the Ohio Supreme Court noted that another
Ohio statute provided a mens rea of recklessness when-
ever, as was the case there, the criminal statute at issue was
silent on the question. Id., at 252–253, 525 N. E. 2d, at 1368
(citing Ohio Rev. Code Ann. § 2901.21(B) (1987)). Osborne
also argued that his due process rights were violated be-
cause the trial court had not instructed the jury on the ele-
ments of lewdness and recklessness that the Ohio Supreme
Court had just read into the statute. The appellate court
rejected this claim on procedural grounds, observing that
Osborne “neither requested such . . . charge[s] nor objected
to the instructions as given.” 37 Ohio St. 3d, at 254, 258,

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Kennedy, J., dissenting
525 N. E. 2d, at 1369, 1373 (citing Ohio Rule Crim. Proc.
30(A) (1989)).
When Osborne’s case reached this Court, the parties’ due
process discussion focused on the merits, not the procedural
bar. “It is a violation of due process,” Osborne’s brief ar-
gued, “where . . . a state supreme court adds new elements
to save a statute and then affirms the conviction.” Brief
for Appellant, O. T. 1989, No. 88–5986, p. 25. Ohio’s re-
sponse, contending that the appellate court’s limiting con-
struction was “foreseeable,” mentioned the procedural rule
in a short, conclusory paragraph. Brief for Appellee, O. T.
1989, No. 88–5986, pp. 43–44. Against this backdrop, we de-
cided the asserted procedural ground was adequate to block
our assessment of the scienter claim but not the lewdness
claim. Osborne v. Ohio, supra, at 125–126. This was not
the watershed holding today’s majority makes it out to be.
The procedure invoked by the State with respect to lewdness
required defendants in all overbreadth cases to take one
of two steps, neither of which comported with established
adequacy principles.
First, Ohio’s primary contention was, as we noted, “that
counsel should . . . have insisted that the court instruct the
jury on lewdness” by proposing an instruction mirroring
the unforeseeable limiting construction the Ohio Supreme
Court would later devise. 495 U. S., at 124. To the extent
the State required defendants to exhibit this sort of pre-
science, it placed a clear and unreasonable burden upon their
due process rights. Shuttlesworth v. Birmingham, 394 U. S.
147, 155–157 (1969); see also Osborne v. Ohio, supra, at 118
(“[W]here a State Supreme Court narrows an unconstitu-
tionally overbroad statute, the State must ensure that de-
fendants are convicted under the statute as it is subsequently
construed and not as it was originally written”). Osborne
might, for example, have guessed “obscenity” rather than
mere “lewdness,” or “focus on the genitals” without the
additional “lewdness” option; yet according to the State,

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398 LEE v. KEMNA
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neither proposed instruction would have preserved his fed-
eral claim. That our decision was based on this foreseeabil-
ity concern is evident from our discussion of the state court’s
treatment of the scienter question. This holding was sup-
ported by an adequate state ground, we found, because the
state statute cited by the Ohio Supreme Court “state[d] that
proof of scienter is required in instances, like the present
one, where a criminal statute does not specify the applicable
mental state.” 495 U. S., at 123. In other words, while the
recklessness element was foreseeable (and in fact established
by statute), the lewdness element was not.
Second, to the extent Ohio faulted the defendant for not
raising a more general objection to the jury instructions,
Osborne followed from Douglas v. Alabama, 380 U. S., at
420–423. In Douglas, the defendant was required to repeat,
again and again, the same Confrontation Clause objection
while his codefendant’s confession was read to the jury. The
trial court’s initial adverse ruling foreclosed the possibility
that the subsequent objections would be sustained. Ohio’s
treatment of overbreadth objections raised similar concerns.
By ruling on and rejecting the pretrial objection—at the
time when overbreadth challenges are generally made—the
trial court would make its position on lewdness clear. The
case would continue on the assumption that the statute was
not overbroad and that possession of nonlewd materials
could be a criminal offense. Any evidence the defendant in-
troduced to establish that the photographs were not lewd
would be irrelevant, and likely objectionable on this ground.
As both a logical and a practical matter, then, the ruling at
the trial’s outset would foreclose a lewdness instruction at
the trial’s close. Ohio’s requirement that the defendant
nonetheless make some sort of objection to the jury instruc-
tions, as we concluded, served “no perceivable state inter-
est.” 495 U. S., at 124 (internal quotation marks omitted).
On this point, too, the Osborne Court’s different conclusion
with respect to scienter is enlightening. Osborne did not

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argue in an appropriate pretrial motion that the other Ohio
statute supplied the recklessness element, so no ruling pre-
cluded him from admitting evidence on mens rea or request-
ing a recklessness instruction.
Osborne thus stands for the proposition that once a trial
court rejects an overbreadth challenge, the defendant cannot
be expected to predict an unforeseeable limiting construc-
tion later adopted by the state appellate court or to lodge a
foreclosed objection to the jury instructions. That holding,
of course, has no relevance to the case at hand. Rule 24.10
does not require defendants to foresee the unforeseeable, and
no previous ruling precluded the trial court from granting
Lee’s continuance motion. And though the Osborne Court’s
analysis was tailored to First Amendment overbreadth con-
cerns, it did not adopt the majority’s fact-specific approach.
Osborne’s rationale would apply to all overbreadth cases
without regard to whether their facts were unique or their
circumstances were extraordinary. The majority’s sugges-
tion to the contrary exaggerates the importance of certain
language employed by the Osborne Court. We did take note
of the “sequence of events,” id., at 124, but only because in
all overbreadth cases, Ohio procedure mandated a sequence
whereby defendants were required to predict unforeseeable
limiting constructions before they were adopted or to lodge
objections foreclosed by previous rulings. We also men-
tioned the trial’s brevity, id., at 123–124, but that fleeting
reference was not only unnecessary but also in tension with
the Osborne Court’s analysis. The adequacy doctrine would
have dictated the same result, brief trial or no.
The Osborne decision did not lay the groundwork for to-
day’s revival of Henry v. Mississippi. Yet even if it made
sense to consider the adequacy of state rules on a case-by-
case basis, the Court would be wrong to conclude that en-
forcement of Rule 24.10 would serve no purpose in this case.
Erroneous disregard of state procedural rules will be com-
mon under the regime endorsed by the Court today, for its

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400 LEE v. KEMNA
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basic assumption—that the purposes of a particular state
procedure can be served by use of a rather different one—
ignores the realities of trial. The Court here sweeps aside
as unnecessary a rule that would have produced the very
predicate the trial court needed to grant the motion: an as-
surance that the defense witnesses were still prepared to
offer material testimony.
The majority contends that Lee compensated for any in-
adequacies in his motion, even if through inadvertence, by
various remarks and observations made during earlier parts
of the trial. To reach this conclusion, the Court must con-
strue counsel’s statements with a pronounced liberality.
Even if we could assume, however, that Lee and his lawyer
provided all the required information at some point, we could
not conclude that “th[e] purpose of the . . . rule” was “sub-
stantially served,” Henry v. Mississippi, 379 U. S., at 448,
or, in the terms used by today’s majority, that “[t]he Rule’s
essential requirements . . . were substantially met,” ante,
at 385. The most critical information the Rule requires—
“What particular facts the affiant believes the witness will
prove”—was revealed not at the time of the motion, but at
earlier stages: voir dire, opening statements, and perhaps,
the majority speculates, the charge conference. Ante, at
383–384. To say the essential requirements of Rule 24.10
were met, then, is to assume the requirement that represen-
tations be made at the time of the motion is not central to
the Rule or its objectives.
This assumption ignores the State’s interest in placing all
relevant information before the trial court when the motion
is made, rather than asking the judge to rely upon his or her
memory of earlier statements. Cf. Ungar v. Sarafite, 376
U. S. 575, 589 (1964) (test for determining whether denial of
continuance violated due process considers “particularly . . .
the reasons presented to the trial judge at the time the re-
quest is denied”). The assumption looks past the State’s

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corresponding interest in facilitating appellate review by
placing all information relevant to the continuance motion
in a single place in the record. The assumption also ignores
the plain fact that the posture of this case was far different
when Lee made his continuance motion than it was at the
outset of the trial. Even if the judge recalled the precise
details of voir dire and opening statements (as the majority
believes, see ante, at 384), the State’s interest in requiring
Lee to make the representations after the prosecution rested
was no less pronounced.
As the very existence of rules like Rule 24.10 indicates,
seasoned trial judges are likely to look upon continuance mo-
tions based on the absence of witnesses with a considerable
degree of skepticism. This case was no different, for the
trial judge suspected that the witnesses had abandoned Lee.
The majority is simply wrong to suggest that no one in the
courtroom harbored a doubt about what Lee’s family mem-
bers would have said if they had returned. See ibid. On
the contrary, in light of the witnesses’ sudden disappearance,
it is more likely that no one in the courtroom would have
had any idea what to expect.
The Court fails to recognize that the trial judge was quite
capable of distinguishing between counsel’s brave promises
to the jury at various stages of the trial and what counsel
could in fact deliver when the continuance was sought.
There is nothing unusual about lawyers using hyperbole in
statements to the jury but then using careful and docu-
mented arguments when making representations to the
court in support of requests for specific rulings. Trial
judges must distinguish between the two on a daily basis.
In closing argument, for example, defense counsel told the
jury:
“I’m an old man, been in this business 43 years, seen
a little of criminal cases. Never seen one as weak as
this.” Tr. 618.

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402 LEE v. KEMNA
Kennedy, J., dissenting
Quite aside from the prosecutor’s predictable response—“He
said that in the last case I tried with him too,” id., at 620—
the rhetoric was an ill fit with the routine, mechanical way
defense counsel presented his motion for acquittal, with the
jury absent, at the close of the prosecution’s case. He gave
not one specific reason to grant the motion, his complete
argument consisting of the following:
“MR. McMULLIN: I’ll file it. I left it in the office.
There’s nothing exceptional in it. The defendant—that
we move for judgment of acquittal for the reason that
the State’s evidence is insufficient as a matter of law
to sustain a conviction and that should be easily dis-
posed of.” Id., at 489.
These are the customary dynamics of trial, perhaps; but
the whole course of these proceedings served to confirm
what the trial judge told counsel at the outset of the case:
“I don’t have a lot of faith in what’s said in opening state-
ment.” Id., at 173. Opening statements can be imprecise,
and are sometimes designed to force the opposition’s hand
or shape the jurors’ perception of events. When the time
came for presentation of the defense case, counsel faced sig-
nificant obstacles in establishing the alibi he had promised
before. Indeed, it is a fair inference to say the alibi de-
fense had collapsed altogether. Two witnesses with no
connection to the defendants or the crime identified Lee as
the driver of the automobile used by the passenger-gunman.
Any thought that difficulties with these eyewitnesses’ identi-
fication might give Lee room to present his alibi defense was
dispelled by two additional witnesses for the prosecution.
Both had known Lee for a considerable period of time, so the
chances of mistaken identity were minimal. Both saw him
in Kansas City—not in California—on the night before the
murder. He was not only in town, they testified, but also
with the shooter and looking for the victim.

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403 Cite as: 534 U. S. 362 (2002)
Kennedy, J., dissenting
Faced with this and other evidence adduced by the prose-
cution, defense counsel elected to open not with the alibi wit-
nesses whose testimony was supposed to be so critical, but
rather with two witnesses who attempted to refute a col-
lateral aspect of the testimony given by one of the prosecu-
tion’s eyewitnesses. Only then did the defense call the alibi
witnesses, who were to testify that Lee went to California
to attend a birthday party in July 1992 and did not return
to Kansas City until October. At this point the case was
far different from what defense counsel might have hoped
for at the opening.
When Lee’s witnesses were then reported missing, the
judge had ample reason to believe they had second thoughts
about testifying. All three of Lee’s family members had
traveled from California to testify, but all three left without
speaking to Lee or his lawyer. Two sets of witnesses, four
persons in all, had just placed Lee in Kansas City; and the
prosecution had said it had in reserve other witnesses pre-
pared to rebut the alibi testimony. Lee had been sentenced
to 80 years in Missouri prison for an unrelated armed assault
and robbery, and any witness who was considering perjury
would have had little inducement to take that risk—a risk
that would have became more pronounced after the prose-
cution’s witnesses had testified—if Lee would serve a long
prison term in any event. The judge’s skepticism seems
even more justified when it is noted that six weeks later,
during a hearing on Lee’s motion for a new trial, counsel
still did not explain where Lee’s family members had gone
or why they had left. It was not until 17 months later, in
an amended motion for postconviction relief, that Lee first
gave the Missouri courts an explanation for his family’s
disappearance.
Before any careful trial judge granted a continuance in
these circumstances, he or she would want a representa-
tion that the movant believed the missing witnesses were
still prepared to offer the alibi testimony. Cf. Avery v. Ala-

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404 LEE v. KEMNA
Kennedy, J., dissenting
bama, 308 U. S. 444, 446 (1940) (propriety of continuance, for
the purposes of the Fourteenth Amendment, must be “de-
cided by the trial judge in the light of facts then presented
and conditions then existing”). If Lee and his counsel had
any reason to believe his witnesses had not abandoned him,
this representation would not have been difficult to make,
and the trial judge would have had reason to credit it. Yet
defense counsel was careful at all stages to avoid making this
precise representation. In his opening statement he said:
“We will put on three witnesses for the defense, and you
will see them and be able to evaluate them and see
whether or not they’re liars or not. You can determine
for yourself.” App. 12.
When he moved for the continuance, Lee’s counsel, consist-
ent with his guarded approach, would not say the witnesses
would still testify as advertised:
“THE COURT: The folks were here today. They were
seen here on this floor of the courthouse, and they appar-
ently simply have abandoned—
MR. McMULLIN: Well—
THE COURT:—the defendant in—although they’re
family, despite the fact that they’re under subpoena.
MR. McMULLIN: It looks like that, Judge. I don’t
know. I would—I can neither confirm nor deny.” Id.,
at 22.
No one—not Lee, not his attorney—stood before the court
and expressed a belief, as required by Rule 24.10, that the
missing witnesses would still testify that Lee had been in
California on the night of the murder. Without that as-
surance, the judge had little reason to believe the continu-
ance would be of any use. In concluding that the purposes
of Rule 24.10 were served by promises made in an open-
ing statement, the majority has ignored one of the central
purposes of the Rule.

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405 Cite as: 534 U. S. 362 (2002)
Kennedy, J., dissenting
In sum, Rule 24.10 served legitimate state interests, both
as a general matter and as applied to the facts of this case.
Lee’s failure to comply was an adequate state ground, and
the Court’s contrary determination does not bode well for
the adequacy doctrine or federalism.
II
A federal court could consider the merits of Lee’s de-
faulted federal claim if he had shown cause for the default
and prejudice therefrom, see Wainwright v. Sykes, 433 U. S.,
at 90–91, or made out a compelling case of actual innocence,
see Schlup v. Delo, 513 U. S. 298, 314–315 (1995). He has
done neither.
As to the first question, Lee says the sudden disappear-
ance of his witnesses caused him to neglect Rule 24.10. In
one sense, of course, he is right, for he would not have re-
quested the continuance, much less failed to comply with
Rule 24.10, if his witnesses had not left the courthouse.
The argument, though, is unavailing. The cause component
of the cause-and-prejudice analysis requires more than a
but-for causal relationship between the cause and the de-
fault. Lee must also show, given the state of the trial when
the motion was made, that an external factor “impeded
counsel’s efforts to comply with the State’s procedural rule.”
Murray v. Carrier, 477 U. S. 478, 488 (1986). While the de-
parture of his key witnesses may have taken him by sur-
prise (and caused him not to comply with Rule 24.09’s writ-
ing requirement), nothing about their quick exit stopped
him from making a complete oral motion and explaining
their absence, the substance of their anticipated testimony,
and its materiality.
Nor has Lee shown that an evidentiary hearing is needed
to determine whether “a constitutional violation has prob-
ably resulted in the conviction of one who is actually in-
nocent.” Id., at 496. To fall within this “narrow class of
cases,” McCleskey v. Zant, 499 U. S. 467, 494 (1991), Lee

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406 LEE v. KEMNA
Kennedy, J., dissenting
must demonstrate “that it is more likely than not that
no reasonable juror would have convicted him in the light of
the new evidence.” Schlup v. Delo, supra, at 327, 314–315.
Lee would offer the testimony of his mother, stepfather,
and sister; but to this day, almost eight years after the
trial, Lee has not produced a shred of tangible evidence
corroborating their story that he had flown to California
to attend a 4-month long birthday party at the time of the
murder. To acquit, the jury would have to overlook this
problem, ignore the relatives’ motive to concoct an alibi for
their kin, and discount the prosecution’s four eyewitnesses.
Even with the relatives’ testimony, a reasonable juror could
vote to convict.
* * *
“Flying banners of federalism, the Court’s opinion actually
raises storm signals of a most disquieting nature.” So wrote
Justice Harlan, dissenting in Henry v. Mississippi, 379 U. S.,
at 457. The disruption he predicted failed to spread, not
because Henry’s approach was sound but because in later
cases the Court, heeding his admonition, refrained from fol-
lowing the course Henry prescribed. Though the Court
disclaims reliance upon Henry, it has in fact revived that
case’s discredited rationale. Serious doubt is now cast upon
many state procedural rules and the convictions sustained
under them.
Sound principles of federalism counsel against this result.
I would affirm the judgment of the Court of Appeals.