                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-2406
                                    ___________

Remon Lee,                              *
                                        *
                   Appellant,           *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
Mike Kemna, Superintendent; Jeremiah *
(Jay) Nixon, Attorney General, State of *      [PUBLISHED]
Missouri,                               *
                                        *
                   Appellees.           *
                                   ___________

                              Submitted: March 13, 2000

                                   Filed: May 25, 2000
                                    ___________

Before MORRIS SHEPPARD ARNOLD and FAGG, Circuit Judges, and BENNETT,*
      District Judge.
                          ___________

PER CURIAM.

      Remon Lee was tried in Missouri state court on charges of first degree murder
and armed criminal action. During his trial, Lee's alibi witnesses failed to appear and
Lee moved for a continuance until the witnesses could be brought to the courtroom.


      *
       The Honorable Mark W. Bennett, Chief Judge, United States District Judge for
the Northern District of Iowa, sitting by designation.
The continuance was denied and Lee was convicted and given a concurrent sentence
of life without parole on the murder charge and ten years on the armed criminal action
charge. The trial court denied Lee's motion for a new trial which alleged ineffective
assistance of trial counsel and violation of his due process rights.

        On direct appeal, Lee claimed his trial motion for a continuance and his
postconviction motion for a new trial were improperly denied. The Missouri Court of
Appeals found the continuance motion was properly denied because it did not comply
with Missouri Supreme Court Rule 24.09, which sets out the required form of the
motion, and Rule 24.10, which lists the required elements of the motion. The court also
found the new trial motion was properly denied because Lee failed to produce evidence
showing counsel was ineffective. Lee then filed a 28 U.S.C. § 2254 petition claiming
the denial of his motion for a continuance violated due process. The district court
denied Lee's habeas petition finding the claim procedurally defaulted. We granted a
certificate of appealability on the question of whether denial of Lee's motion for a
continuance was a due process violation.

      Lee first argues he did not procedurally default his claim. We disagree. Federal
habeas review is not available on Lee's due process claim if the Missouri Court of
Appeals "rest[ed] [its decision] on a state law ground that is independent of the federal
question and adequate to support the judgment," regardless of "whether the state law
ground is substantive or procedural." Coleman v. Thompson, 501 U.S. 722, 729
(1991); accord Hall v. Delo, 41 F.3d 1248, 1249-50 (8th Cir. 1994). The Missouri
Court of Appeals rejected Lee's claim because his motion for a continuance did not
comply with Missouri Supreme Court Rules 24.09 and 24.10 and thus the claim was
procedurally defaulted.

      We reach the merits of Lee's procedurally defaulted claim only if he can show
cause for his default and prejudice or actual innocence. See Wyldes v. Hundley, 69
F.3d 247, 253-54 (8th Cir. 1995). Lee claims his default should be excused because

                                          -2-
trial counsel's failure to follow Missouri's motion rules constituted ineffective assistance
of counsel. We reject Lee's claim because ineffective assistance of counsel must be
presented to the state court as an independent claim before it can be used to establish
cause for a procedural default. See id. at 253. Although Lee raised a claim of
ineffective assistance in his postconviction motion for a new trial, he did not
specifically allege failure of trial counsel to present properly the motion for a
continuance. See id. (habeas petitioner must present to state court same specific claim
of ineffective assistance made out in habeas petition). Thus, the Missouri courts had
no opportunity to consider whether Lee's trial lawyer was ineffective for failing to
present the motion properly and Lee cannot present that claim now. Because Lee has
not shown cause for his default, we do not reach the issue of prejudice.

       An actual innocence claim requires Lee to show "'new reliable evidence . . . not
presented at trial'" establishing "'that it is more likely than not that no reasonable juror
would have convicted him in the light of the new evidence.'" Id. at 254 (citations
omitted). Lee has failed to make the required showing because the factual basis for the
affidavits he relies on as new evidence existed at the time of the trial and could have
been presented earlier. See Meadows v. Delo, 99 F.3d 280, 282 (8th Cir. 1996). Even
assuming the alibi testimony was new evidence, Lee did not show with the required
likelihood that reasonable jurors would not have convicted based on the word of three
family members when the testimony of four prosecution witnesses refuted the alibi.

       We affirm the denial of Lee's habeas petition.

BENNETT, Chief District Judge, dissenting.

       As Justice Fortas observed, “There is no higher duty of a court, under our
constitutional system, than the careful processing and adjudication of petitions for writs
of habeas corpus.” Harris v. Nelson, 394 U.S. 286, 292 (1969). “Today, as in prior
centuries, the writ is a bulwark against convictions that violate ‘fundamental fairness.’”

                                            -3-
Engle v. Isaac, 456 U.S. 107, 126 (1982) (quoting Wainwright v. Sykes, 433 U.S. 72,
96-97 (1977) (Stevens, J., concurring)). With this view of the importance and purposes
of a writ of habeas corpus, I am unwilling to condone what I believe was a conviction
in Lee’s case that violates “fundamental fairness.” Furthermore, I do not believe that
Lee’s due process claim has been procedurally defaulted, as the majority concludes,
even under the current status of federal habeas law, which, in my view, increasingly
elevates tortuous and tangled procedural impediments over fundamental fairness. See
Coleman v. Thompson, 501 U.S. 722, 759 (1991) (Blackmun, J., dissenting) (“I believe
that the Court is creating a Byzantine morass of arbitrary, unnecessary, and
unjustifiable impediments to the vindication of federal rights” in habeas corpus
actions). For these reasons, I must respectfully dissent.

       To explain why I believe that the decision below must be reversed, I find that a
more detailed discussion of the circumstances of this case is required. Lee was tried
in Missouri state court on charges of first-degree murder and armed criminal action.
At the opening of his trial, Lee’s defense counsel promised the jury an alibi defense,
complete with three alibi witnesses, who would establish that Lee was not in Kansas
City, the location of the murder, on the day of the murder, but was instead in California.
Indeed, the promised alibi witnesses—Lee’s mother, stepfather, and sister—had
voluntarily traveled from California to Missouri to testify on Lee’s behalf at his trial
and were present at the courthouse as trial began. Moreover, these witnesses were
under subpoena and had previously met with defense counsel.

       In its case in chief, the government presented the testimony of two witnesses
who identified Lee as the getaway driver and two other witnesses who placed Lee in
Kansas City within the twenty-four hours preceding the murder. However, the
government presented no physical evidence linking Lee to the murder. On the
Thursday morning before the state rested its case, Lee’s alibi witnesses were present
at the courthouse. However, following a lunch recess, the three witnesses could not
be located. Lee’s alibi witnesses have since provided affidavits in which they aver that

                                           -4-
they left the courthouse only after being told by a court security officer that their
testimony would not be needed until the following day, because the state’s case would
take up the remainder of the day. No judge of any stripe, state or federal, trial or
appellate, has yet passed on the reason for the alibi witnesses’ sudden disappearance
from the courthouse just before Lee’s defense was to begin.

        Upon discovering that Lee’s three alibi witnesses were not present in the
courthouse after the lunch recess, Lee’s counsel orally informed the court of that fact
and requested that the court grant a continuance in order for him to attempt to secure
the testimony of the witnesses. Trial counsel also informed the court that the witnesses
were thought to be still in town, because Lee’s mother and stepfather had plans to
attend a religious activity in Kansas City that evening. The trial court announced that
the trial could not be continued to the following day, Friday, because the judge intended
to be at the hospital when his daughter had surgery. The trial court also informed the
parties that the trial could not be continued to the following Monday, because the judge
had another trial set to commence that day. The state trial judge concluded, without
a scintilla of evidence or a shred of information as to why the alibi witnesses were
absent, and without making any attempt to enforce the subpoenas for their attendance,
that the alibi witnesses had “abandoned” Lee and his defense. As a result of the denial
of Lee’s oral motion for a continuance, no alibi defense was presented, and not
surprisingly—indeed inevitably—Lee was convicted by the state court jury.

       On direct appeal, the Missouri Court of Appeals affirmed the denial of Lee’s
motion for a continuance, concluding that the denial of the motion was proper, because
Lee’s counsel failed to comply with two Missouri Supreme Court Rules, Rules 24.09
and 24.10. Rule 24.09 requires that motions for continuances be in writing and
supported by affidavits, unless the adverse party consents to an oral application. Rule
24.10 sets out the information that must be included in a motion for a continuance that
is grounded on the absence of a witness. The state trial court, however, had not relied


                                          -5-
upon either of these rules in denying Lee’s motion for a continuance, nor had the state
resisted the motion on these grounds.

        In this action for habeas corpus relief, Lee asserts that the denial of his motion
for a continuance violated his federal right to due process. The federal district court
to which Lee’s petition for habeas corpus relief was presented concluded from the
reliance by the state court of appeals upon its procedural rules that Lee’s due process
claim was procedurally defaulted. Specifically, the court below concluded that the
decision of the Missouri Court of Appeals was based on an adequate and independent
state law ground, which bars federal habeas corpus review. The majority agrees, and
concludes further that Lee cannot overcome this impediment, because Lee is unable to
demonstrate either “cause and prejudice” or “actual innocence.”

        A federal court’s review of a habeas petition is barred when a state court
dismisses or rejects a prisoner’s claims on adequate and independent state law grounds,
unless a petitioner can demonstrate either (1) cause and prejudice or (2) actual
innocence. Coleman v. Thompson, 501 U.S. 722, 750 (1991). I concur with the
majority’s conclusions that Lee is unable to demonstrate “cause and prejudice” or
“actual innocence.” Lee cannot establish the necessary “cause,” because he failed to
raise before the state court his asserted “cause,” which he alleges was his trial
counsel’s ineffective assistance in failing to follow Missouri’s procedural rules for a
continuance. Wyldes v. Hundley, 69 F.3d 247, 253 (1995), cert. denied, 517 U.S. 1172
(1996). I also agree that Lee cannot satisfy the demanding criteria of an “actual
innocence” claim, because he has failed to offer new, reliable evidence of his innocence
in light of which “it is more likely than not that no reasonable juror would have
convicted him.” Schlup v. Delo, 513 U.S. 298, 324 (1995); Knox v. Iowa, 131 F.3d
1278, 1282 (8th Cir. 1997). If Lee had been allowed a short continuance and had been
able to present his alibi defense, he might very well have been acquitted, but he might
also have been convicted. While the evidence against Lee was not strong, I recognize
that a jury would have been free either to accept or reject his alibi defense. Therefore,

                                           -6-
I cannot find that Lee meets Schlup’s high hurdle of “actual innocence”—even though
he may in fact be innocent.

      I nevertheless dissent, because I do not believe that we need to reach the
question of whether Lee can overcome denial of his due process claim on adequate and
independent state law grounds. Rather, I find that the decision of the Missouri Court
of Appeals did not rest on any such adequate and independent state law ground.
Therefore, I would hold that federal habeas review is not precluded in this case.

      A panel of this court recently discussed the nature of, and limitations to, the bar
to federal habeas review provided by denial of a claim on an “adequate and
independent state law ground” as follows:

             Procedural default of a claim under state law may constitute
             an independent and adequate state ground, Harris v. Reed,
             489 U.S. 255, 262 (1989), but only if the state procedural
             rule is firmly established, regularly followed, and readily
             ascertainable. Ford v. Georgia, 498 U.S. 411, 423-24
             (1991). The underlying principle is “that failure to follow
             state procedures will warrant withdrawal of a federal
             remedy only if those procedures provided the habeas
             petitioner with a fair opportunity to seek relief in state
             court.” Easter v. Endell, 37 F.3d 1343, 1347 (8th Cir.
             1994). Or, as Justice Holmes expressed it, “[w]hatever
             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.” Davis v.
             Wechsler, 263 U.S. 22, 24, 44 S. Ct. 13, 68 L. Ed. 143
             (1923).

White v. Bowersox, 206 F.3d 776, 780 (8th Cir. 2000).



                                          -7-
        The “adequacy” of a state procedure presents a question of federal law. Sloan
v. Delo, 54 F.3d 1371, 1379 (8th Cir. 1995), cert. denied sub nom. Sloan v. Bowersox,
516 U.S. 1056 (1996). A state law rule is not “adequate” to defeat federal habeas
review if the rule is “unclear,” “thwarts the assertion of federal rights,” is “confusing,”
or is not “firmly established and regularly followed.” Id. at 1379-80; see also White,
206 F.3d at 780 (to be “adequate” to bar federal habeas review, a rule must be “firmly
established, regularly followed, and readily ascertainable”). A state law ground is not
“independent” if it is in any way “linked to or dependent on any federal law.” Easter,
37 F.3d at 1345. I have no trouble joining the majority’s implicit conclusion that the
state procedural rules at issue here, Missouri Supreme Court Rules 24.09 and 24.10,
are not “linked to or dependent on any federal law,” and thus constitute “independent”
state law grounds for denial of Lee’s motion for a continuance. However, I strenuously
disagree that these rules present any “adequate” state law ground to bar federal habeas
review of Lee’s due process claim.

        In some recent decisions, this court has found certain state procedural rules were
not “adequate” to bar federal habeas claims. In White, this court concluded that the
petitioner was denied a fair opportunity to seek relief in his case, because the
procedural rule that barred his second amended petition for state post-conviction relief
was neither firmly established nor readily ascertainable. White, 206 F.3d at 780. The
court found that the Missouri Supreme Court had introduced for the first time in
White’s post-conviction proceedings two limitations on a recently-recognized remedy
for attorney abandonment of a petitioner in post-conviction proceedings. Id. at 781.
However, this court found that neither limitation could reasonably have been
anticipated in advance of its application in the petitioner’s case. Id. at 781.
Importantly, the court held that whether or not a limitation was “implicit in, and
correctly derived from, Missouri’s prior precedents,” or “appear[ed] in retrospect to
form part of a consistent pattern of procedures, it should not be applied as a procedural
default if the defendant could not be deemed to have been apprised of its existence.”
Id. (citing Ford, 498 U.S. at 423). Therefore, “even if . . . th[e state] rule forms a

                                           -8-
consistent pattern with prior [state] precedents, we could not apply it as a procedural
default in this [habeas] case.”

       Similarly, in Easter, this court concluded that Rule 37 of the Arkansas Rules of
Criminal Procedure did not meet the due process requirement of “adequacy” to bar a
federal habeas claim. See Easter, 37 F.3d at 1345-46. The rule in question reinstated
state post-conviction relief proceedings and set deadlines for the filing of state actions
for such relief. Id. at 1344. In Easter, although this court concluded that Rule 37
otherwise provided constitutionally adequate procedures, it nevertheless was not
adequate to bar federal habeas claims, because it was not a “firmly established rule
when it was applied to Easter.” Id. at 1346. This court reiterated that conclusion in
Pearson v. Norris, 52 F.3d 740 (8th Cir. 1995), holding,

             As in Easter, the state has not demonstrated that Pearson
             was put on notice that he had a Rule 37 remedy before his
             filing deadline passed. The availability of Rule 37 was not
             firmly established when Pearson needed to pursue it.
             Accordingly, Pearson’s Rule 37 default is not adequate to
             support a denial of federal review of the merits of Pearson’s
             constitutional claims.

Pearson, 52 F.3d at 742.

       The state procedural rules that purportedly stand as bars to Lee’s federal habeas
due process claim are Missouri Supreme Court Rules 24.09 and 24.10. Rule 24.09
requires that motions for continuances be in writing and supported by affidavits, unless
the opposing party consents to an oral application. Missouri Supreme Court Rule 24.10
states that a motion for a continuance, written or oral, based on the absence of a
witness must state specific matters, including the materiality of the evidence and
diligence to obtain it, reasonable grounds for belief that the attendance of the witness
can be obtained within a reasonable time, the facts the witness will prove and that no


                                           -9-
other person who could have been procured for trial can prove those facts or prove
them so fully, the applicant’s good faith, and that the witness is not absent by the
connivance, consent, or procurement of the applicant. The Missouri Court of Appeals
has explained that “the reason for this rule is obvious, it permits the trial court to pass
on the merits of the request.” State v. Robinson, 864 S.W.2d 347, 349 (Mo. Ct. App.
1993). However, to determine the “adequacy” of the bar to federal habeas claims
raised by these rules, I must determine whether the application of these rules by
Missouri appellate courts to the circumstances presented when Lee moved for a
continuance based on the sudden absence of his alibi witnesses in the midst of his trial
was firmly established, regularly followed, or readily ascertainable. White, 206 F.3d
at 780.

        I acknowledge that Missouri appellate courts have routinely held that “[f]ailure
to comply with Rules 24.09 and 24.10 alone is sufficient to sustain the trial court’s
ruling” denying a continuance. See, e.g., State v. Dodd, 10 S.W.3d 546, 555 (Mo. Ct.
App. 1999) (treating a motion for a continuance that was not accompanied by an
affidavit as an oral motion to which the state had not consented); accord Robinson, 864
S.W.2d at 349 (stating failure to comply with Rule 24.09 was sufficient to deny a
request for a continuance, citing State v. Diamond, 647 S.W.2d 806, 808 (Mo. Ct. App.
1982)); State v. Lopez, 836 S.W.2d 28, 32 (Mo. Ct. App. 1992) (citing non-compliance
with either rule, and stating “[d]efendant’s failure to request the continuance by written
motion accompanied by an affidavit is sufficient grounds to affirm the trial court’s
ruling”); State v. Fuller, 837 S.W.2d 304, 306 (Mo. Ct. App. 1992) (“The failure to
comply with rules prescribing means for requesting a continuance is sufficient grounds
to deny the request.”) (citing cases); State v. Anderson, 785 S.W.2d 299, 302 (Mo. Ct.
App. 1990) (“We agree that the defendant’s failure to request the continuance by a
written motion accompanied by an affidavit is sufficient ground for this court to affirm
the trial court’s ruling,” thus relying on failure to meet the requirements of Rule 24.09,
but finding “[m]ore important” was non-compliance with the requirement of Rule 24.10
that the personal presence of the witness could reasonably be obtained); State v.

                                           -10-
Fletcher, 758 S.W.2d 476, 478 (Mo. Ct. App. 1988) (“‘Defendant’s failure to file the
request in writing accompanied by an affidavit showing good cause as required by Rule
24.09 is sufficient ground to affirm the trial court’s action.”) (quoting Diamond, 647
S.W.2d at 808); State v. Gasaway, 720 S.W.2d 3, 5-6 (Mo. Ct. App. 1986) (“Where
a defendant fails to comply with Rule 24.10, the trial court does not abuse its discretion
in denying a continuance.”).

        I acknowledge further that Missouri appellate courts have routinely affirmed
denials of oral motions for continuances that were prompted by the absence of a
witness when the motions were made at or near the time of trial, or even during trial,
on the ground that the motions did not comply with Rule 24.09 or Rule 24.10. See
State v. Wolfe, 13 S.W.3d 248, 261 (Mo. 2000) (en banc) (affirming denial of an oral
motion for continuance made in the course of trial after the trial court’s denial of a
motion to introduce an affidavit by the absent witness); Dodd, 10 S.W.3d at 555 (not
indicating precisely when the oral motion for continuance was made, although it was
apparently made in proximity to or during trial, and affirming denial of the motion);
Robinson, 864 S.W.2d at 348 (affirming denial of a motion for continuance pursuant
to Rules 24.09 and 24.10 made at “docket call” three days before trial); Lopez, 836
S.W.2d at 31-32 (affirming denial of an oral motion for a continuance based on the
absence of a witness apparently made on the second day of trial as an alternative to a
request for late endorsement of another witness); Fuller, 837 S.W.2d at 306 (affirming
denial of an oral motion for a continuance owing to the absence of a witness made on
the day of trial); State v. McCarter, 820 S.W.2d 587, 588 (Mo. Ct. App. 1993)
(affirming denial of an oral motion for a continuance owing to the absence of a witness
made on the morning of trial); Anderson, 785 S.W.2d at 302 (affirming denial of an oral
motion made on the day of trial); Fletcher, 758 S.W.2d at 478 (affirming denial of an
oral motion for a continuance made “[a]fter the jury was seated”); Gasaway, 720
S.W.2d at 5 (affirming denial of an oral motion for a continuance made on the third day
of trial); Smith, 633 S.W.2d at 416 (affirming denial of an oral motion for a continuance
made “at the close of trial, before submission to the jury”).

                                          -11-
        However, in not one of these cases was the absence of the witness sudden or
unexpected. Wolfe, 13 S.W.3d at 261 (“Defense counsel told the judge that she had
been trying to contact the [absent witness], but no one had seen her in weeks” and
“[t]he State replied [to the motion for continuance] that it also could not find the
[absent witness].”); Dodd, 10 S.W.3d at 555 (both the state and the defendant had
attempted to subpoena the absent witnesses for prior proceedings and the defendant
“conceded in his motion that he had not been able to locate the [absent witnesses] for
several months before his trial”); Robinson, 864 S.W.2d at 348 (in premature reliance
on a plea agreement that fell through, the defendant had not availed himself of the
opportunity to depose the state’s witnesses, even though the state had made those
witnesses available); Lopez, 836 S.W.2d at 31-32 (nothing indicated the absence of the
witness was a surprise); Fuller, 837 S.W.2d at 306 (the absent witness “had been
missing for more than a year, despite extensive efforts to locate her by both sides”);
McCarter, 820 S.W.2d at 588-89 (in the oral motion, defendant alleged that the absent
witness had not been located, had left town, and had no exact address at which he
could be located, and counsel stated further that “[w]e are not sure if we can . . . find
this man,” and the court concluded that the motion was “insufficient on the matter well
known before trial” and “the factual basis for the motion was not a last minute or
unexpected surprise”); Anderson, 785 S.W.2d at 302 (it appeared that the absent
witness “had fled the jurisdiction and that a 2-year effort to locate her had been
unsuccessful”); Gasaway, 720 S.W.2d at 5 (although the oral motion for continuance
was made on the third day of trial, the absent witness, who had appeared pursuant to
a subpoena on the first day, had been absent the second day of trial, the trial court had
issued a writ of body attachment, and the sheriff had made a “diligent” but unsuccessful
effort to locate the witness); Smith, 633 S.W.2d at 416 (trial counsel had not shown
“due diligence in securing the attendance of the witness, or his testimony by deposition
for a year before trial,” even though the testimony the absent witness was intended to
impeach was known to counsel for about a year before trial). The situation was slightly
different in Fletcher:


                                          -12-
             Counsel stated that she was not aware of two of the
             potential alibi witnesses until a very short time ago. She
             was unaware of the third until the morning of the trial. The
             defendant stated he expected an alibi witness to appear but
             she had been subpoenaed to a child support hearing and
             could not appear.

Fletcher, 758 S.W.2d at 478. Nevertheless, the absence of the alibi witnesses in that
case appeared to have more to do with lack of diligence than sudden and unexpected
absence of a witness who had already presented himself or herself at the time of trial.
See id.

       Indeed, the reliance in all of these decisions on the defendant’s prior knowledge
of the unavailability of the witness, or circumstances that should have suggested to
counsel that the witness would be unavailable at trial, implies that a truly unexpected
absence of a witness, as occurred in this case, might excuse failure to comply or relax
compliance with the written motion requirements of Rule 24.09 and the content
requirements of Rule 24.10. See, e.g., McCarter, 820 S.W.2d at 589 (specifically
noting that failure to comply with the requirements of Rule 24.09 was sufficient
grounds to deny a motion for continuance, stating that this was “particularly true where
the factual basis for the motion was not a last minute or unexpected surprise”).

       Thus, I do not find that the application of Rules 24.09 and 24.10 was “firmly
established” or “regularly followed” in the circumstances in which Lee made his motion
for continuance, that is, circumstances involving the sudden and unexplained absence
of alibi witnesses who had been in attendance just prior to a recess after which their
testimony was required and who were under subpoena to appear at that time. Cf.
White, 206 F.3d at 780 (the limitations on the newly-recognized claim of attorney
abandonment were introduced only in the petitioner’s case, and therefore were not
“firmly established” at the time his claim was denied on the basis of those limitations);
Pearson, 52 F.3d at 742 (“The availability of Rule 37 [of the Arkansas Rules of

                                          -13-
Criminal Procedure] was not firmly established when Pearson needed to pursue it.”);
Easter, 37 F.3d at 1346 (Rule 37 of the Arkansas Rules of Criminal Procedure
otherwise provided constitutionally adequate procedures, but nevertheless was not
adequate to bar federal habeas claims, because it was not a “firmly established rule
when it was applied to Easter”).

        Moreover, the possibility that application of Rules 24.09 and 24.10 to the
circumstances presented in Lee’s case was somehow “implicit in, and correctly derived
from, Missouri’s prior precedents,” or “appear[ed] in retrospect to form part of a
consistent pattern of procedures,” is not sufficient to bar his federal habeas claims,
because those rules “should not be applied as a procedural default if the defendant
could not be deemed to have been apprised of” their applicability. White, 206 F.3d at
780 (citing Ford, 498 U.S. at 423). The circumstances in which Lee moved for a
continuance make it particularly unlikely that he could be deemed to have been
apprised of the applicability Rules 24.09 and 24.10. As a practical matter, it is simply
unrealistic to suppose that, when confronted during trial with the sudden and
unexplained absence of witnesses who have previously been in attendance, both
voluntarily and under subpoena, counsel will be able to produce a written motion,
supported by an affidavit, as required by Rule 24.09, detailing expressly the
information required by Rule 24.10. Indeed, it appears that neither the trial judge,
Lee’s counsel, nor opposing counsel considered the applicability of these rules in the
circumstances, although the Missouri Court of Appeals later relied upon them to affirm
the trial court’s denial of a continuance. Therefore, I would hold that applicability of
these rules in Lee’s circumstances was not only not “firmly established” or “regularly
followed,” it was not “readily ascertainable.” Id.

       There are yet more grounds on which I would hold that failure to comply with
Rules 24.09 and 24.10 does not constitute an “adequate and independent state law
ground” for denial of federal habeas review. I would also hold that application of these
rules in Lee’s circumstances stands as no bar, because the rules would “thwar[t] the

                                         -14-
assertion of federal rights” in the circumstances of this case. Sloan v. Delo, 54 F.3d
1371, 1379 (8th Cir. 1995), cert. denied sub nom. Sloan v. Bowersox, 516 U.S. 1056
(1996). In Henry v. Mississippi, 379 U.S. 443 (1965), the United States Supreme
Court held that a state procedural ground was “adequate” to preclude federal review
of a constitutional claim only if it outweighed the strong federal interest in hearing
federal claims. Henry, 379 U.S. at 447; cf. Sykes, 433 U.S. at 88-90 (holding Florida’s
“contemporaneous objection rule” to be an adequate state ground based on the
important state interests it serves). A review of case law reveals instances in which
federal courts have found the state interest furthered by the rule in question was not
adequate to bar federal habeas claims, because that state interest had already been
fulfilled. See Smart v. Scully, 787 F.2d 816, 820 (2d Cir. 1986); see also Caston v.
Costello, 74 F. Supp. 2d 262, 274 (E.D.N.Y. 1999) (holding that a state appellate
court’s application of the “contemporaneous objection rule” did not preclude habeas
review); United States ex re. Smith v. DiBella, 314 F. Supp. 446, 447 (D. Conn. 1970)
(holding that rigid adherence to a state procedural rule, which required an appellant to
submit a motion to correct a trial court’s findings within two weeks after the findings
are filed, was “so lacking in fundamental fairness as to constitute ‘a miscarriage of
justice which should not be permitted to occur.’”) (quoting Christoffel v. United States,
190 F.2d 585, 594 (D.C. Cir. 1950)).

       This line of authorities is exemplified by the decision of the Second Circuit Court
of Appeals in Smart, 787 F.2d 816. In Smart, a petitioner prosecuting his habeas
action pro se sought federal review on the ground that his incompetence at the time he
entered his guilty plea had rendered his guilty plea involuntary. Id. at 817. In response,
the state asserted that the petitioner had procedurally defaulted, because he had not
sworn to his allegations of fact, as required by state procedure. Id. at 818. The district
court denied the petition on the ground that the failure to include sworn allegations
constituted procedural default. Id.




                                          -15-
       The Second Circuit Court of Appeals, however, reached the merits of the
petitioner’s claim, finding that the state court’s denial was not based on an “adequate
and independent” state ground warranting federal refusal to consider the federal issues.
Id. at 820. The appellate court reasoned that the state interest in having petitioners
swear to their allegations of fact was not sufficient to preclude federal consideration of
the petitioner’s habeas claim, because the petitioner’s pleading, “while not in
compliance with state procedure, notified the court as to his constitutional claim and
gave the state court a clear opportunity to address his claim or allow him to replead.”
Id. The court reasoned further that “Smart’s type of error does not at all implicate the
concerns expressed in [Wainwright v. Sykes, 433 U.S. 72 (1977)],” which related to
improper diminution of “the significance of the state proceeding as the appropriate
forum for the adjudication of all claims in a state criminal prosecution” to obtain some
“strategic advantage.” Id. at 820-21. Instead, the court could “perceive of no tactical
benefit to be derived from Smart’s failure,” where “[h]is noncompliance with a
threshold requirement of post-conviction relief caused him to suffer dismissal of his
motion without providing any opportunity for a favorable outcome.” Id. at 821. Thus,
the appellate court in Smart found that this was not a situation in which a defendant
“could preserve an opportunity for success at the state level while embedding in the
state record a basis for possible future habeas relief.” Id at 821.

      Likewise, I can perceive of no situation under which Lee “could preserve an
opportunity for success at the state level while embedding in the state record a basis for
possible future habeas relief.” Id. Here, Lee informed the court of all the information
he had regarding his witnesses’ surprising disappearance. Given the three witnesses’
sudden, unexplained absence from the courthouse during the middle of a trial day, it is
impossible to imagine that counsel could have done more to meet the requirements of
Missouri Supreme Court Rules 24.09 and 24.10.

       Furthermore, it is difficult to understand what part of Rule 24.10 was not
satisfied, either by counsel’s representations at the time he moved for a continuance or

                                          -16-
by the circumstances otherwise known to the court; therefore, the trial court was
notified of the grounds for the motion for a continuance and was given a clear
opportunity to address its merits. Cf. Smart, 787 F.2d at 820 (the petitioner’s
pleadings, “while not in compliance with state procedure, notified the court as to his
constitutional claim and gave the state court a clear opportunity to address his claim or
allow him to replead,” and thus non-compliance with the state procedure was not an
“adequate and independent state ground” to bar habeas claims). The materiality of the
testimony of alibi witnesses in Lee’s case was obvious, when counsel had detailed in
his opening statements that the alibi witnesses would testify that Lee was in California,
not Kansas City, at the time of the murders, and the diligence of the applicant in
attempting to obtain the presence of the witnesses was equally apparent, because the
witnesses had previously been present and were under subpoena. See MO. SUP. CT. R.
24.10(a). Counsel’s representation that he believed the witnesses were still in town,
because they intended to attend a religious service, in my opinion, established
reasonable grounds for belief that the attendance of the witnesses could be procured
within a reasonable time. See MO. SUP. CT. R. 24.10(b). Counsel’s indication in his
opening statement of the critical content of the alibi witnesses’ testimony adequately
indicated what facts the witnesses would prove, and it should have been obvious that
no other testimony could adequately establish Lee’s alibi defense. See MO. SUP. CT.
R. 24.10(c). Counsel’s representations that the witnesses had been present at the
courthouse before the lunch recess and that he had no idea why they had not returned
was sufficient, in my view, under the circumstances, to satisfy the requirements of the
rule that the witnesses not be absent by connivance, consent, or procurement of the
applicant, and that Lee was seeking a continuance in good faith and not simply for
purposes of delay. See MO. SUP. CT. R. 24.10(d).

       However, after quoting the provisions of the rule, the Missouri Court of Appeals
stated only, “After a careful review of the record, we find appellant’s motion was made
without the factual showing required by Rule 24.10,” and that denial of a motion based
on a deficient application was not an abuse of discretion.” State v. Lee, No. WD

                                          -17-
49456, slip op. at 5 (Memorandum Supplementing Order Affirming Judgment Pursuant
To Rule 84.16(b) and 30.25(b)). Thus, the court that relied on Rule 24.10 failed to
specify in what respect Lee’s motion for a continuance owing to the sudden absence
of alibi witnesses was deficient. Furthermore, as I believe any seasoned trial lawyer
would agree, requiring that a motion for a continuance be in writing, with supporting
affidavits, as required by Rule 24.09, when the motion is made in the midst of trial
upon the discovery that subpoenaed witnesses are suddenly absent, would be so bizarre
as to inject an Alice-in-Wonderland quality into the proceedings.

       It must be remembered that these three witnesses had voluntarily traveled from
California to Missouri for Lee’s trial and had been present, and apparently ready and
willing to testify on Lee’s behalf, that very morning. Moreover, Lee’s witnesses’
affidavits raise a serious factual issue, which no court has addressed, as to whether
state action was responsible for the disappearance of the witnesses from the courthouse
in the middle of the day on which their testimony was required. The trial court,
however, did not even attempt to enforce the subpoenas for these witnesses or
otherwise attempt to ascertain why they were suddenly absent. Cf. Gasaway, 720
S.W.2d at 5 (the oral motion for continuance was not denied until the day after the
absence of the witness under subpoena was discovered, the trial court had issued a writ
of body attachment, and the sheriff had made a “diligent” but unsuccessful effort to
locate the witness).

        In short, this is not a case in which Lee was “sandbagging” the state trial court
in a strategic maneuver to forgo adjudication of issues in state court while embedding
in the record a ground for future federal habeas corpus relief. See Smart, 787 F.2d at
821 (considering whether the petitioner’s non-compliance with state rules is simply an
attempt to embed in the state record a basis for possible future habeas relief). Rather,
Lee effectively placed the state court on notice as to the grounds for his motion for a
continuance such that the state court had the opportunity to address the merits of his
request. Id. at 820 (mere non-compliance with state rules should not preclude federal

                                          -18-
review, where the petitioner’s defective motion nevertheless gave the state court a clear
opportunity to address his contentions). I conclude that, under these unique
circumstances, Lee’s failure to comply fully with Missouri Supreme Court Rules 24.09
and 24.10 is insufficient to preclude federal consideration of Lee’s habeas claim. See
id. at 820-21. Rather, strict compliance with these rules would “thwar[t] the assertion
of federal rights” in the circumstances of this case. Sloan, 54 F.3d at 1379.

        To put it another way, applying these rules in the circumstances of Lee’s case
is not “fundamentally fair.” Engle, 456 U.S. at 126; accord Strickland v. Washington,
466 U.S. 668, 697 (1984) (observing that “fundamental fairness is the central concern
of the writ of habeas corpus”); Sykes, 433 U.S. at 96-97 (Stevens, J., concurring)
(measuring the appropriateness of habeas corpus relief against a “fundamental
fairness” standard). It is instead rampant elevation of procedure over substance. Cf.
Coleman, 501 U.S. at 759 (Blackmun, J., dissenting) (decrying the elevation of
procedural impediments to vindication of federal rights in habeas corpus actions). We
must not lose sight of the underlying principle behind the bar raised by an “adequate
and independent state law ground,” which is “‘that failure to follow state procedures
will warrant withdrawal of a federal remedy only if those procedures provided the
habeas petitioner with a fair opportunity to seek relief in state court.’” White, 206 F.3d
at 780 (quoting Easter, 37 F.3d at 1347). The procedural rules raised as a bar here
provided Lee with no such fair opportunity, in the circumstances of his case, to obtain
a continuance and mount his alibi defense.

       This case, in no small measure, reflects the current status of federal habeas
corpus jurisprudence. Judicial interpretation of the Great Writ during the past three
decades has spun a cascading web of confounding and labyrinthine procedural
obstacles, see Coleman, 501 U.S. at 759 (Blackmun, J., dissenting); Murray v.
Carrier, 477 U.S. 478, 497 (1986) (Stevens, J., concurring in the judgment) (“The
heart of this case is a prisoner’s claim that he was denied access to material that might
have established his innocence. The significance of such a claim can easily be lost in

                                          -19-
a procedural maze of enormous complexity.”), notwithstanding that the Supreme Court
once recognized that “habeas corpus is not ‘a static, narrow, formalistic remedy . . .,
but one which must retain the ‘ability to cut through barriers of form and procedural
mazes.’” Hensley v. Municipal Court, San Jose Milpitas Jud. Dist., Santa Clara
County, Cal., 411 U.S. 345, 349-350 (1973) (quoting Jones v. Cunningham, 371 U.S.
236, 243 (1963), and Harris v. Nelson, 394 U.S. 286, 291(1969)). This large and
increasingly complex web has now virtually obscured the core purpose of the Writ.

        Not only has this procedural web taken on a life of its own, it has developed its
own unique nomenclature, a procedural cant further obscuring the merits of most
habeas corpus actions: Rather than addressing the underlying merits of the
constitutional claims asserted by a petitioner for habeas corpus relief, opinions in
habeas actions are now riddled (in both the primary and secondary sense of the word)
with terms like “procedural default,” “cause and prejudice,” “abuse of the writ,”
“successive petitions,” “mixed petitions,” “adequate and independent state law
grounds,” “the ‘look through’ presumption,” “the total exhaustion rule,” “state waiver
of the exhaustion defense,” “non-retroactivity,” “non-cognizable constitutional claims,”
“fairly presented claims,” “unintended claims,” “objective factors external to the
defense,” and “the presumption of correctness.” The vast majority of federal habeas
petitioners find themselves entangled in this omnipresent and perplexing procedural
web, which effectively precludes federal courts from ever reaching the merits of their
constitutional claims. For example, when the Third Circuit Court of Appeals
recognized that a case before it “illustrate[d] the complexity engendered by the current
federal habeas corpus doctrine of procedural default,” Hull v. Feeman, 991 F.2d 86,
88 (3d Cir. 1993), the court also expressed its concern that its method for breaking free
of the procedural web, so that it could reach the merits of the petitioner’s claim, might
instead “have placed [the petitioner] into an enclosed loop from which he cannot
escape.” Id. at 94 n.6.




                                          -20-
       With the inevitable focus on this bewildering array of convoluted procedural
obstacles, it is all too easy to look past some crucial, simple truths. First, the
mystifying procedural web most often traps and snares all but the most sophisticated
or just plain lucky petitioners, and Lee is neither. Second, there is a reasonable
possibility that Lee is in fact innocent. The case against him, based primarily on shaky
eye-witness testimony with no corroborating physical evidence, was not strong. Third,
his state court conviction was virtually assured by the trial judge’s denial of his oral
motion for a short continuance, because he was thereby precluded from presenting his
alibi defense. The prejudicial effect of the denial of his motion for a continuance is
especially apparent in light of defense counsel’s promise, in his opening statement, to
present an alibi defense and witnesses. Fourth, the trial court’s summary denial of a
continuance—on grounds that appear to me to be unreasonable and completely
arbitrary, and hence fundamentally unfair, in the circumstances presented and in the
face of a justifiable request for a brief delay—most probably amounts to an
unconstitutional denial of due process. See, e.g., McMiller v. Lockhart, 915 F.2d 368,
372 (8th Cir. 1990) (a habeas petitioner’s due process claim founded on denial of a
motion for continuance of his criminal trial was judged against “fundamental fairness”
and “abuse of discretion” standards, in light of the circumstances of the case), cert.
denied, 498 U.S. 1108 (1991); White v. Lockhart, 857 F.2d 1218, 1220 (8th Cir. 1988)
(where the habeas petitioner asserted a due process violation in the trial court’s refusal
to continue his criminal trial, the court noted that “‘[o]nly an unreasoning and arbitrary
“insistence upon expeditiousness in the face of justifiable request for delay”’ rises to
the level of a constitutional violation,” quoting Morris v. Slappy, 461 U.S. 1, 11-12
(1983), and stating that, to prevail, the petitioner “must show that in denying his request
for a continuance the district court acted in a manner ‘so egregious that it was
fundamentally unfair,’” quoting Wade v. Armontrout, 798 F.2d 304, 307 (8th Cir.
1986)); Loggins v. Frey, 786 F.2d 364, 366-67 (8th Cir.) (where a habeas petitioner
asserts a violation of due process based on denial of a continuance, “‘[o]nly an
unreasoning and arbitrary “insistence upon expeditiousness in the face of a justifiable
request for delay”’. . . . may give rise to a violation of due process”) (quoting Morris,

                                           -21-
461 U.S. at 11-12, in turn quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)), cert.
denied, 479 U.S. 842 (1986). Lastly, it is hard to conceive of a more arbitrary action
of a trial judge that could inflict greater prejudice to a defendant in a criminal case than
the actions of the trial judge in Lee’s case.

        In sum, I would reverse the decision of the district court. I would hold that there
is no procedural default, because there is no “adequate and independent state law
ground” barring federal habeas review. Consequently, I would remand this habeas
action for an evidentiary hearing on Lee’s claim that he was denied due process when
the state trial court refused to grant him a continuance in order to permit him to secure
the testimony of his three subpoenaed alibi witnesses. The district court should have
the first opportunity to decide the merits of Lee’s federal constitutional claim.

       A true copy.

              Attest:

                      CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                           -22-
