534 U.S. 362122 S.Ct. 877151 L.Ed.2d 820
REMON LEE, PETITIONERv.MIKE KEMNA, SUPERINTENDENT, CROSSROADS CORRECTIONAL CENTER
No. 00-6933.
United States Supreme Court
Argued October 29, 2001Decided January 22, 2002

Syllabus
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 Lees  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. Lees 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 procedural flaw in the motions presentation or content. The trial  judge denied the motion, stating that it looked as though the witnesses had in  effect abandoned Lee, that his daughters hospitalization would prevent the judge  from being in court the next day, and that he would be unavailable on the  following business day because he had another trial scheduled. The trial resumed  without pause, no alibi witnesses testified, the jury found Lee guilty as  charged, and he was sentenced to prison for life without possibility of parole.  Lees new trial motion, grounded in part on the denial of his continuance motion,  was denied, as was his motion for state post-conviction 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 post-conviction 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 Lees 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 consider the  merits of Lees due process plea, the Missouri Court of Appeals affirmed his  conviction and the denial of post-conviction relief. He then filed a federal  habeas application, which the District Court denied. The Eighth Circuit  affirmed, ruling that federal review of Lees due process claim was unavailable  because the state courts rejection 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.1225.
(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 objection ample and timely to bring an alleged federal error  to the attention 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 Lees case also guides  the Courts judgment. The asserted procedural oversights, Lees 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 courts 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 Lees 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 24.09s writing requirements on its own motion. Pp.12-17.
(b)Three considerations, in combination, lead to the conclusion that the  asserted state grounds are inadequate to block adjudication of Lees federal  claim. First, when the trial judge denied Lees 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 Lees 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 unique  circumstances of this case the sudden, unanticipated, and at the time unexplained  disappearance of critical, subpoenaed witnesses on what became the trials last  day. Third and most important, the purpose of the Rules was served by Lees  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 Rules components were stressed  by the State. Missouri asserted, first, that Lees counsel never mentioned in his  oral motion the testimony he expected from the missing witnesses, and second,  that Lees counsel gave the trial court no reason to believe that those witnesses  could be located within a reasonable time. These matters, however, were either  covered by the oral continuance motion or otherwise conspicuously apparent on  the record. Thus, the Rules essential requirements were substantially met in  this case, and nothing would have been gained by requiring Lees 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 adjudication of Lees due  process claim on the merits. Pp.1725.
213 F.3d 1037, vacated and remanded.
On writ of certiorari to the united states court of appeals for the eighth circuit
Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C.J.,  and Stevens, O'Connor, Souter, and Breyer, JJ., joined.
Justice Ginsburg delivered the opinion of the Court.


1
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 continuance to locate subpoenaed, previously present, but  suddenly 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 States  rules. It therefore declined to consider the merits of Lees plea that the trial  court had denied him a fair opportunity to present a defense. Whether the state  ground dispositive in the Missouri Court of Appeals is adequate to preclude  federal habeas corpus review is the question we here consider and decide.


2
On the third day of his trial, Lee was convicted of first-degree murder and  armed criminal action. His sole affirmative defense was an alibi; Lee maintained  he was in California, staying with his family, when the Kansas City crimes for  which he was indicted occurred. Lees mother, stepfather, and sister voluntarily  came to Missouri to testify on his behalf. They were sequestered in the  courthouse at the start of the trials 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.


3
The trial judge denied the motion, stating that it looked to him as though  the witnesses had in effect abandoned 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.


4
Neither the trial judge nor the prosecutor identified any procedural flaw  in the presentation or content of Lees motion for a continuance. The Missouri  Court of Appeals, however, held the denial of the motion proper because Lees  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.


5
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 un-alerted to any  procedural defect in his presentation, defense counsel could hardly be expected  to divert his attention from the proceedings rapidly unfolding 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 States 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.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).


6
* 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.


7
Lees 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--surfaced at each stage of the proceedings. During voir dire on the  first day of trial, Lees 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 well put on evidence I cant go into it now that he  was somewhere else, he couldn't commit the crime and I believe the judge will  give an instruction on alibi at the conclusion of my case.). Later in the voir  dire, defense counsel identified the three alibi witnesses as Lees mother,  Gladys Edwards, Lees sister, Laura Lee, and Lees stepfather, James Edwards, a  minister. Id., at 11-13.


8
The planned alibi defense figured prominently in counsels opening  statements on day two of Lees trial. The prosecutor, 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,  described the alibi defense in detail, telling the jury that the evidence would  show Lee was not in Kansas City, and therefore 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 Ventura, California,  in July 1992 and stayed through the end of October. Lees 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. Lees 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.


9
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 Lees 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 interviewer. 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.


10
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 443487. The State offered no  physical evidence connecting Lee to the murder and did not suggest a motive.


11
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 submitted by Lee. Id., at  571.1


12
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 counsels 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 California to testify on his behalf. Id., at 16. He affirmed his  counsels representations that the three witnesses, then staying with Lees uncle  in Kansas City, had met with Lees counsel and received subpoenas from him; he  similarly affirmed that the witnesses had met with a Kansas City police officer,  who interviewed them on behalf of the prosecutor. Id., at 1618. Lee said he had  seen his sister, mother, and stepfather in the courthouse that morning at 8:30  and later during a recess.


13
On discovering the witnesses absence, Lee could not call them at his uncles  house because there was no phone on the premises. He asked his girlfriend to try  to find the witnesses, but she was unable to do so. Id., at 17. Although Lee did  not know the witnesses whereabouts at that moment, he said he knew in fact they  didn't go back to California 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 its very valuable to my case. Ibid.  Defense 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 responded 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.


14
After a brief further exchange between court and counsel,2 the judge denied  the continuance request. The judge observed:


15
It looks to me as though the folks were here and then in effect abandoned the    defendant. And that, of course, we cant--we cant blame that on the State. The    State had absolutely nothing to do with that. That's its too bad. The Court will    not be able to be here tomorrow to try the case. Id., at 22.


16
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.


17
In a final colloquy before the jury returned to the courtroom, 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.


18
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, Lees 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.


19
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.


20
The trial court later denied Lees new trial motion, which Lee grounded, in  part, on the denial of the continuance motion. Id., at 31-32, 42. Lee, at first  pro se but later represented by appointed counsel, next filed a motion for state  post-conviction relief. Lee argued, inter alia, that the refusal to grant his  request for an overnight continuance deprived him of his federal constitutional  right to a defense. Id., at 56-59.3 In his post-conviction motion, Lee asserted  that the three witnesses had left the courthouse because an unknown person, whom  he later identified as an employee of the prosecutors office, had told them they  were not needed to testify. Id., at 56-58. The post-conviction 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.


21
Lees 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 courts 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 Lees  continuance request had a fatal procedural flaw. Id., at 110-115. In particular,  the State contended that Lees application failed to comply with Missouri Supreme  Court Rule 24.10 (Rule 24.10), which lists the showings required in a  continuance request based on the absence of witnesses.4 By the States reckoning,  Lees request did not show the materiality of the California witnesses testimony  or the grounds for believing that the witnesses could be found within a  reasonable time; in addition, the prosecution urged, Lee failed to testify that  the witnesse[s] absence was not due to his own procurement. App. 113.


22
The Missouri Court of Appeals affirmed Lees conviction and the denial of  post-conviction relief. State v. Lee, 935 S.W. 2d 689 (1996); App. 123-131. The  appellate court first noted that Lees 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 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 Lees 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 continuance is based on a deficient application,  the Court of Appeals next said, it does not constitute an abuse of discretion.  Ibid. Lees subsequent motions for rehearing and transfer to the Missouri Supreme  Court were denied.


23
In January 1998, Lee, proceeding pro se, filed an application for writ of  habeas corpus in the United States District 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 Lees 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 168174.6 Lee  maintained that the State had engineered the witnesses departure; accordingly,  he asserted that prosecutorial misconduct, not anything over which he had  control, prompted the need for a continuance. Id., at 148, 155-156.


24
The District Court denied the writ. No. 980074CVW6P (WD Mo., Apr. 19,  1999), App. 212218. 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 Lees continuance  claim, finding in the Missouri Court of Appeals invocation of Rule 24.10 an  adequate and independent state-law ground barring further review. App. 217.


25
The Court of Appeals for the Eighth Circuit granted a certificate of  appealability, limited to the question whether Lees due process rights were  violated by the state trial courts failure to allow him a continuance, id., at  232, and affirmed the denial of Lees habeas petition. 213 F.3d 1037 (2000) (per  curiam). Federal review of Lees due process claim would be unavailable, the  court correctly observed, if the state courts rejection of that claim rest[ed]  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. Id., at 1038 (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). The Missouri Court of Appeals rejected Lees 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  defaulted. 213 F.3d, at 1038.7


26
Chief District Judge Bennett, sitting by designation from the District  Court for the Northern District of Iowa, dissented. 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 10411049.


27
We granted Lees 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

28
This Court will not take up a question of federal law presented in a case  if the decision of [the state] court rests on a state law ground that is  independent of the federal question 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 assertion of federal questions, we have recognized, is not within  the States prerogative finally to decide; rather, adequacy is itself a federal  question. Douglas v. Alabama, 380 U.S. 415, 422 (1965).


29
Lee does not suggest that Rules 24.09 and 24.10, as brought to bear on this  case by the Missouri Court of Appeals, 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 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 dispositive issue.8


30
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, 422424 (1991). There are, however, 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 (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.


31
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 objections procedurally barred because Osborne had failed to  object contemporaneously to the judges 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.).


32
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  States contemporaneous objection rule, we observed, serves the States important  interest in ensuring that counsel do their part in preventing trial courts from  providing juries with erroneous instructions. Id., at 123.


33
With respect to the trial courts 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 counsels argument. After a brief trial, the judge charged the jury in  line with his ruling against Osborne on the pretrial motion to dismiss. Counsels  failure to object to the charge by reasserting the argument 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 States failure of proof on lewdness before the  trial court and nothing would be gained by requiring Osborne's lawyer to 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 requiring contemporaneous objection to jury charges, we nevertheless  concluded that, in this atypical instance, the Rule would serve no perceivable  state interest. Ibid. (internal quotation marks omitted).


34
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 therefore 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.


35
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  Courts analysis, post, at 13.


36
As attentive reading of the relevant pages of Osborne will confirm, 495  U.S., at 123125, we here rely not on isolated statements from the opinion, post,  at 9, 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  (internal quotation marks omitted) (quoting Douglas, 380 U.S., at 422).


37
According to the dissent in this case, Osborne's discrete section trained on  the adequacy of state-law grounds to bar federal review had two bases. First,  the dissent views as central to Osborne the unforeseeab[ility] of the Ohio  Supreme Courts limiting construction of the child pornography statute at issue  there, i.e., that courts addition of the lewdness element on which Osborne  failed to request a jury charge. Post, at 10-11; see also post, at 12. The  dissent here is characteristically inventive. Osborne spoke not of the  predictability vel non of the Ohio Supreme Courts 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, Osborne noted, without criticism, the  Ohio Supreme Courts own indication that the limiting construction of the child  pornography statute was not unpredictable, for it flowed from the proper  purposes exceptions set out by the Legislature. Id., at 113, n.10.


38
Second, the dissent suggests that Osborne is enlightening only as to Ohio's  treatment of over-breadth objections. Post, at 11-12. Osborne, the dissent  contends, stands for the proposition that once a trial court rejects an  over-breadth challenge, the defendant cannot be expected to lodge a foreclosed  objection to the jury instructions. Post, at 12. In truth, Ohio had no  special-to-the-First Amendment requirement. Ibid.9 Rather, Ohio's firmly  established, generally applicable practice was a standard contemporaneous  objection rule for challenges to jury charges. See Ohio Rule Crim. Proc. 30(A)  (1989). As Osborne paradigmatically illustrates, that Rule is unassailable in  most instances, i.e., it ordinarily serves a legitimate governmental interest;  in rare circumstances, however, unyielding application of the general rule would  disserve any perceivable interest.


39
The asserted procedural oversights in Lees case, his alleged failures fully  to comply with Rules 24.09 and 24.10, were first raised more than two and a half  years after Lees trial. The two Rules, Missouri maintains, work together to  enhance the reliability of a trial courts determination of whether to delay a  scheduled criminal trial due to the absence of a witness. Brief for Respondent  29 (footnote omitted) (emphasis added). Nevertheless, neither the prosecutor nor  the trial judge so much as mentioned the Rules as a reason for denying Lees  continuance motion.10 If either prosecutor or judge considered supplementation  of Lees motion necessary, they likely would have alerted the defense at the  appropriate time, and Lee would have had an opportunity 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 insufficient it shall permit  it to be amended.


40
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 motions oral form. App. 107-108, 110-115.  The Missouri Court of Appeals, it seems, raised Rule 24.09s writing requirements  (a written motion accompanied by [an] affidavit) on its own motion.11


41
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 adjudication of a federal claim. First, when the trial judge  denied Lees 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 Lees case on the following 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


42
Second, no published Missouri decision directs flawless compliance with  Rules 24.09 and 24.10 in the unique circumstances this case presents the sudden,  unanticipated, and at the time unexplained disappearance of critical, subpoenaed  witnesses on what became the trials last day.13 Lees predicament, 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).


43
Third and most important, given the realities of trial, post, at 13, Lee  substantially complied with Missouris key Rule. As to the written motion  requirement, Missouris 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. Brief for Respondent  30.14 At oral argument, however, Missouris counsel edged away from this  position. Counsel stated: Im 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 proceedings, see supra, at 3,  enabled an appellate court to comprehend 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 written continuance application,  supported by an affidavit, 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. 213 F.3d, at 1047.


44
Regarding Rule 24.10, the only Rule raised on appeal by the prosecution,  see supra, at 89, 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: Lees counsel never mentioned during his oral  motion for continuance the testimony 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.


45
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 counsels opening  statement delivered just one day before the continuance motion. App. 10-13; see  Osborne, 495 U.S., at 123 (defense counsels 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 immediately before brief trial). Two of  the prosecutions 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 5, n.1. When defense counsel moved for a continuance, the  judge asked a question indicating his recognition that alibi witness Gladys  Edwards was Lees mother. See supra, at 6, n.2.


46
Given the repeated references to the anticipated alibi witness testimony  each day of trial, it is inconceivable that anyone in the courtroom harbored a  doubt about what the witnesses had traveled from California to Missouri to say  on the stand or why their testimony was material, indeed indispensable, 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 particular facts the affiant believes  the witness will prove, and that no other person available to the movant could  so fully prove the same facts).


47
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 days  continuance to enforce the subpoenas for their attendance. App. 16-18.


48
Concerning his diligence to obtain the alibi testimony, 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  interviewed them in Kansas City; the witnesses had telephoned 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.


49
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 Rules 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 Lees 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 sections 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


50
The dissent critiques at great length Henry v. Mississippi, 379 U.S. 443  (1965), a case on which we do not rely in reaching our decision.16 See post, at  69, 20. This protracted exercise is a prime example of the dissents vigorous  attack on an imaginary opinion that bears scant, if any, resemblance 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  dissents shrill prediction that today's decision will disrupt our federal system  were accurate, we would have seen clear signals of such disruption in the eleven  years since Osborne. The absence of even dim distress signals demonstrates both  the tight contours of Osborne and the groundlessness of the dissents 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).


51
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  case. See post, at 69. If that theory holds, it would matter not at all why the  witnesses left. Even if the evidence would show beyond doubt that the witnesses  left because a court functionary told them to go, saying their testimony would  not be needed until the next day, see supra, at 10, n.6, Lee would lose under  the dissents 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 6. The  particular application, 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.


52
To summarize, there was in this case no reference whatever 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 courts  decision. Furthermore, no published Missouri decision demands unmodified  application of the Rules in the urgent situation Lees case presented. Finally,  the purpose of the Rules was served by Lees submissions both immediately before  and at the short trial. Under the special circumstances so combined, we conclude  that no adequate state-law ground hinders consideration of Lees federal claim.17


53
Because both the District Court and the Court of Appeals held Lees 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.  Smith, 525 U.S. 459, 470 (1999) (We ordinarily do not decide in the first  instance issues not decided below.).


54
* * *


55
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.


56
It is so ordered.


57
Kennedy, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined.



Notes:


1
  That Lee had submitted an alibi instruction during the charge conference became  apparent when the trial judge, delivering the charge, began to read the proposed  instruction. He was interrupted by the prosecutor and defense counsel, who  reminded him that the instruction was no longer necessary. Tr. 594595.


2
  Responding to the courts questions, Lees counsel said he had copies of the  witnesses written statements and their subpoenas. App. 2021. Counsel next began  to describe the subpoenas. When counsel listed Gladys Edwards, the court asked  [i]s she the mother? Id., at 21.


3
  Missouri procedure at the time required Lee to file his post-conviction 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 considering direct appeal). The  direct appeal was suspended while the trial court considered the post-conviction  motion. See Rule 29.15(l).


4
  Rule 24.10 reads:



58
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:


59
(a) The facts showing the materiality of the evidence sought to be obtained and  due diligence upon the part of the applicant to obtain such witness or  testimony;


60
(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;


61
(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;


62
(d) That such witness is not absent by the connivance, consent, or procurement  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 impartial 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 setting forth  the facts upon which the application is based, unless the adverse 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.


7
  Lee had asked the federal appeals court to excuse the procedural lapse,  suggesting that trial counsels failure to follow Missouris 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. Furthermore, the federal  appeals court ruled, Lee could not rest on a plea of 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.


8
  Missouri argues in two footnotes to its brief that Lees 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 response, 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. 8687, 9095). Missouri did not advance its current  contention in the States Eighth Circuit brief or in its brief in opposition to  the petition for certiorari. We therefore exercise our discretion to deem the  [alleged] defect waived. Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985).


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, 122125 (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, 421422 (1965)).


10
  By contrast, the judge specifically directed Lees counsel to supplement counsels  oral motion for judgment of acquittal with a written motion. See supra, at 67.


11
  The belated assertion of these Rules also explains why Lee did not contend in  his state post-conviction motion that counsel was constitutionally ineffective  for failing meticulously to comply with Rules 24.09 and 24.10. That  post-conviction 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 7, n. 3.


12
  The dissent suggests that Lees counsel decided not to put on the alibi  defense promised in his opening statement because the prosecutions witnesses  caused that planned defense to collaps[e] altogether. See post, at 16. The  record refutes that suggestion. Lees counsel knew before he promised an alibi  defense in his opening that the State planned to rebut it: The prosecutors  opening statement--given prior to defense counsels--outlined the rebuttal witnesses  expected testimony. Tr. 178187. Likewise, the prosecutors statement that she had  in reserve other witnesses prepared to rebut the alibi testimony, post, at 17,  was part of her opening statement, see Tr. 187. Furthermore, the alibi witnesses  would have known of Lees sentence in an unrelated case--a fact that the dissent  suggests gave them second thoughts about testifying, post, at 16a month before  they traveled to Missouri. Tr. 2526.
Utterly confounding are the dissents depictions of the realities of trial,  post, at 13, 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 17. 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 witnesses were still  prepared to offer material testimony. Post, at 13; see post, at 17. No motion in  the immediacy of the witnesses sudden disappearance, however, could have  provided assurance that they were still prepared to offer material testimony.  The careful trial judge does not 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 valuable to [Lees] case. See supra, at 6.


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 2526. The five cases are: State v. Gadwood, 342 Mo. 466, 479, 116 S.  W. 2d 42, 49 (1937) (defendants 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) (defendant arrived at court  on first day of trial with a letter from a doctor explaining 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, 1314 (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 adequacy of a state ground, of course, does not depend on an  appellate decision 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 Lees.


14
  Missouris brief did not address the requirement that the affidavit be notarized.


15
  The dissent, indulging in hyperbole, describes our narrow opinion as a comb and  searc[h] order to lower courts. Post, at 9. We hold, simply and only, that Lee  satisfied Rule 24.10s essential elements. Just as in Osborne, see supra, at  1415, we place no burden on courts to rummage through a ponderous trial  transcript in search of an excuse for a defense counsels lapse. The dissent, in  this and much else, tilts at a windmill of its own invention.


16
   Henry has been called radical, post, at 7 (quoting R. Fallon, D. Meltzer, & D.  Shapiro, Hart and Wechslers The Federal Courts and the Federal System 584 (4th  ed. 1996)), not for pursuing an as applied approach, as the dissent states, but  for suggesting that the failure to comply with an anterior procedure was cured  by compliance with some subsequent procedure. See id., at 584585. In Henry, the  Court indicated that although there was no contemporaneous objection at trial to  the admission of evidence alleged to have been derived from an unconstitutional  search, a directed verdict motion made at the end of the prosecutions case was  an adequate substitute. 379 U.S., at 448449. 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 continuance motion. The question  here is whether the movant must enunciate again, when making the right motion at  the right time, supporting statements plainly and repeatedly made the days  before. See supra, at 35. On whether such repetition serves a legitimate state  interest, Osborne, not Henry, controls.


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, 9091 (1977), or has made sufficient 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.



63
Justice Kennedy, with whom Justice Scalia and Justice Thomas join,  dissenting.


64
The Courts 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.


65
* 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  ensuring 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 federal 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 States interest in enforcing its laws. Id., at 731.


66
Given these considerations of comity and federalism, a procedural ground  will be deemed inadequate only when the 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 followed 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.


67
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 19). 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 interest in facilitating the orderly management of trials.  Other States have similar requirements. See, e.g., Ind. Code 353671(b) (1993);  La. Code Crim. Proc. Ann., Art. 709 (West 1981); Miss. Code Ann. 991529 (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 Courts explicit deprecation of  Rule 24.10and implicit deprecation of its many counterparts is inconsistent with  the respect due to state courts and state proceedings.


68
* 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, 357 U.S. 449, 457 (1958), petitioner  could not fairly be deemed to have been apprised of [the rules] existence. As  the majority acknowledges, ante, at 13, 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 regular practice.


69
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 Lees trial. For example, the  majority cites the lack of published decisions directing flawless compliance  with the Rule in the unique circumstances this case presents. Ante, at 19. While  this description of Missouri law is dubious, see, e.g., State v. Scott, 487 S.W.  2d 528, 530 (Mo. 1972), the Courts underlying, quite novel argument ignores the  nature of rule-making. 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 rules applicability in special cases. Rule 24.10s  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.


70
The Court also ventures into new territory by implying that the trial  judges failure to cite the Rule was meaningful, ante, at 2, 1617, 24, 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 18. If these  considerations were significant, however, we would have relied upon them in  previous cases where the trial courts denial of the defendants motion on the  merits was affirmed by the state appellate court because of an uncited  procedural defect. See, e.g., James v. Kentucky, supra, at 343344; Staub v. City  of Baxley, supra, at 317318. None of these decisions used this rationale to  disregard a state procedural rule, and with good reason. To require 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 courts 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. Ct.  App. 1993), and to facilitate the appellate courts review of asserted due  process errors. Notwithstanding the Courts guess about the judges and  prosecutions inner thoughts concerning the completeness of Lees motion, see  ante, at 17, the Missouri Court of Appeals tells us that Lees 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 different 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.


71
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 Courts analysis,  see ante, at 19, relates 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 respectful view, the Court errs.

B

72
A defendants 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 rules 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 procedures are supported by various legitimate  interests, so established rules have been set aside only when they appeared to  be calculated to discriminate against federal law, or, as one treatise puts it,  they did not afford the defendant a reasonable opportunity to assert federal  rights. 16B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure,  4027, p.392 (2d ed. 1996) (hereinafter Wright & Miller). See, e.g., Douglas v.  Alabama, 380 U.S. 415, 422423 (1965) (rule requiring continuous repetition of  identical constitutional objections); Staub v. City of Baxley, 355 U.S., at  317318 (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 defendants  successor-in-interest).


73
In light of this standard, the adequacy of Rule 24.10 has been  demonstrated. Delays in criminal trials can be a distinct 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 during a trial,  important witnesses may not be available. In these circumstances, a continuance  may be appropriate if the movant makes certain required representations  demonstrating good cause to believe the continuance would make a real difference  to the case.


74
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 legitimacy  in arm[ing] trial judges with the information needed to rule reliably on a  motion to delay a scheduled criminal trial. Ante, at 21. Nor is there any doubt  Lee did not comply with the Rule, for the Missouri courts word on that state-law  question is final. See Elmendorf v. Taylor, 10 Wheat. 152, 159160 (1825)  (Marshall, C.J.). The Courts acceptance of these two premises should lead it to  conclude that Lees violation of the Rule was an adequate state ground for the  Missouri courts decision.


75
Yet the Court deems Lees default inadequate because, it says, to the extent  feasible under the circumstances, he substantially complied with the Rules  essential requirements. Ante, at 22. These precise terms have not been used in  the Courts 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  enforcing full compliance in this particular case. This is so, the Court holds,  because the Rules essential purposes were substantially served by other  procedural devices, such as opening statement, voir dire, and Lees 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 1922. So viewed, the  Courts substantial-compliance terminology begins to look more familiar: 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.


76
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 422423;  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 Weschslers'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 actual circumstances of  application to the very case before the court--unduly subordinates state  interests); cf. ante, at 13 (There are exceptional cases in which exorbitant  application of a generally sound rule renders the state ground inadequate). The  petitioner in Henry had defaulted 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 rules purpose may have been  substantially served by petitioners motion at the close of the States 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  interest may be ignored when, in the peculiar circumstances of a given case, the  defendant utilized some other procedure serving the same interest.


77
For all Henry possessed in mischievous potential, however, 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  petitioners counsel deliberately bypassed the opportunity to make timely  objection in the state court. 379 U.S., at 449453. The cornerstone of that  analysis, the deliberate-bypass standard of Fay v. Noia, 372 U.S. 391, 426434  (1963), later was limited to its facts in Wainwright v. Sykes, 433 U.S. 72, 8788  (1977), and then put to rest in Coleman v. Thompson, 501 U.S., at 750.  Subsequent cases maintained 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 585586 (describing the  [d]emise of Henry); 16B Wright & Miller 4020, at 291 (Later decisions, over a  period now measured in decades, are more remarkable for frequently omitting any  reference to the Henry decision than for clarifying it).


78
There is no meaningful distinction between the Henry Courts analysis and  the standard the Court applies today, and this surprising reinvigoration of the  case-by-case approach is contrary to the principles of federalism underlying 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 integrity and  uniformity of trials, even when the reason for the 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.


79
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 requirements of a rule are, in the rulemaker's view, essential to  fulfill its purposes; imperfect compliance is thus, by definition, not  compliance at all. Yet the States sound judgment on these matters can now be  overridden by a federal court, which may determine for itself, given its own  understanding of the rules 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  noncompliance should be excused because some alternative procedure might be  deemed adequate in the particular situation. 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 essential requirements of an otherwise broken rule.


80
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 122125. 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.


81
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 motion 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 limiting construction of the statute when it instructed the jury on  the elements of the crime.


82
In his appeal to the Ohio Supreme Court, Osborne argued that the statute  violated the First Amendment for two reasons: first, it prohibited the  possession of non-lewd 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 nudity 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 whenever, as was the case there, the criminal statute  at issue was silent on the question. Id., at 252253, 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 because the trial court had not instructed the jury  on the elements 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, 525 N.E. 2d,  at 1369, 1373 (citing Ohio Rule Crim. Proc. 30(A) (1989)).


83
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 argued, where a state supreme court adds new elements to save a  statute and then affirms the conviction. Brief for Appellant, O.T. 1989, No.  885986, p.25. Ohio's response, contending that the appellate courts limiting  construction was foreseeable, mentioned the procedural rule in a short,  conclusory paragraph. Brief for Appellee, O.T. 1989, No. 885986, pp.4344.  Against this backdrop, we decided the asserted procedural ground was adequate to  block our assessment of the scienter claim but not the lewdness claim. Osborne  v. Ohio, supra, at 125126. 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 over-breadth cases to take one of two steps, neither  of which comported with established adequacy principles.


84
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 prescience, it placed a clear and  unreasonable burden upon their due process rights. Shuttlesworth v. Birmingham,  394 U.S. 147, 155157 (1969); see also Osborne v. Ohio, supra, at 118 ([W]here a  State Supreme Court narrows an unconstitutionally overbroad statute, the State  must ensure that the defendants 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,  neither proposed instruction would have preserved his federal claim. That our  decision was based on this foreseeability concern is evident from our discussion  of the state courts treatment of the scienter question. This holding was  supported 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.


85
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 420423. In Douglas, the defendant was required to repeat,  again and again, the same Confrontation Clause objection while his co-defendants  confession was read to the jury. The trial courts initial adverse ruling  foreclosed the possibility that the subsequent objections would be sustained.


86
Ohio's treatment of over-breadth objections raised similar concerns. By ruling on  and rejecting the pretrial objection--at the time when over-breadth 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 non-lewd materials could be a criminal offense. Any evidence  the defendant introduced 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 trials outset would foreclose a  lewdness instruction at the trials close. Ohio's requirement that the defendant  nonetheless make some sort of objection to the jury instructions, as we  concluded, served no perceivable state interest. 495 U.S., at 124 (internal  quotation marks omitted). On this point, too, the Osborne Courts different  conclusion with respect to scienter is enlightening. Osborne did not argue in an  appropriate pretrial motion that the other Ohio statute supplied the  recklessness element, so no ruling precluded him from admitting evidence on mens  rea or requesting a recklessness instruction.


87
Osborne thus stands for the proposition that once a trial court rejects an  over-breadth challenge, the defendant cannot be expected to predict an  unforeseeable limiting construction 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 Lees continuance motion. And though the Osborne Courts  analysis was tailored to First Amendment over-breadth concerns, it did not adopt  the majority's fact-specific approach. Osborne's rationale would apply to all  over-breadth cases without regard to whether their facts were unique or their  circumstances were extraordinary. The majority's suggestion to the contrary  exaggerates the importance of certain language employed by the Osborne Court. We  did take note of the sequence of events, 495 U.S., at 124, but only because in  all over-breadth 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 mentioned  the trials brevity, id., at 123124, but that fleeting reference was not only  unnecessary but also in tension with the Osborne Courts analysis. The adequacy  doctrine would have dictated the same result, brief trial or no.


88
The Osborne decision did not lay the groundwork for today'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  enforcement of Rule 24.10 would serve no purpose in this case. Erroneous  disregard of state procedural rules will be common under the regime endorsed by  the Court today, for its 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  assurance that the defense witnesses were still prepared to offer material  testimony.


89
The majority contends that Lee compensated for any inadequacies 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  construe counsels 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  substantially served, Henry v. Mississippi, 379 U.S., at 448, or, in the terms  used by today's majority, that the Rules essential requirements were  substantially met, ante, at 22. The most critical information the Rule  requires--[W]hat 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 21. To say the essential requirements of Rule 24.10 were met, then, is  to assume the requirement that representations be made at the time of the motion  is not central to the Rule or its objectives.


90
This assumption ignores the States 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 request is denied). The assumption looks past  the States 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 21), the States  interest in requiring Lee to make the representations after the prosecution  rested was no less pronounced.


91
As the very existence of rules like Rule 24.10 indicates, seasoned trial  judges are likely to look upon continuance motions 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 Lees family members would have said if they had returned. See ante, at 21.  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.


92
The Court fails to recognize that the trial judge was quite capable of  distinguishing between counsels 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 documented 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:


93
Im an old man, been in this business 43 years, seen a little of criminal    cases. Never seen one as weak as this. Tr. 618.


94
Quite aside from the prosecutors 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 prosecutions case. He gave not one specific  reason to grant the motion, his complete argument consisting of the following:


95
MR. McMULLIN: Ill 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 States evidence is insufficient as a matter of law to sustain a conviction    and that should be easily disposed of. Id., at 489.


96
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  statement. Id., at 173. Opening statements can be imprecise, and are sometimes  designed to force the oppositions hand or shape the jurors perception of events.


97
When the time came for presentation of the defense case, counsel faced  significant obstacles in establishing the alibi he had promised before. Indeed,  it is a fair inference to say the alibi defense 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 identification 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.


98
Faced with this and other evidence adduced by the prosecution, defense  counsel elected to open not with the alibi witnesses whose testimony was  supposed to be so critical, but rather with two witnesses who attempted to  refute a collateral aspect of the testimony given by one of the prosecutions  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.


99
When Lees witnesses were then reported missing, the judge had ample reason  to believe they had second thoughts about testifying. All three of Lees 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 prepared 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 prosecutions  witnesses had testified--if Lee would serve a long prison term in any event. The  judges skepticism seems even more justified when it is noted that six weeks  later, during a hearing on Lees motion for a new trial, counsel still did not  explain where Lees family members had gone or why they had left. It was not  until 17 months later, in an amended motion for post-conviction relief, that Lee  first gave the Missouri courts an explanation for his family's disappearance.


100
Before 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. Cf.  Avery v. Alabama, 308 U.S. 444, 446 (1940) (propriety of continuance, for the  purposes of the Fourteenth Amendment, must be decided 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:


101
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.


102
When he moved for the continuance, Lees counsel, consistent with his guarded  approach, would not say the witnesses would still testify as advertised:


103
THE COURT:     The folks were here today. They were seen here on this floor of    the courthouse, and they apparently simply have abandoned

MR. McMULLIN: Well

104
THE COURT: the defendant in--although they're family, despite the fact that    they're under subpoena.


105
MR. McMULLIN:     It looks like that, Judge. I don't know. I would--I can neither    confirm nor deny. Id., at 22.


106
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 assurance, the  judge had little reason to believe the continuance would be of any use. In  concluding that the purposes of Rule 24.10 were served by promises made in an  opening statement, the majority has ignored one of the central purposes of the  Rule.


107
In sum, Rule 24.10 served legitimate state interests, both as a general  matter and as applied to the facts of this case. Lees failure to comply was an  adequate state ground, and the Courts contrary determination does not bode well  for the adequacy doctrine or federalism.

II

108
A federal court could consider the merits of Lees defaulted federal claim  if he had shown cause for the default and prejudice therefrom, see Wainwright v.  Sykes, 433 U.S., at 9091, or made out a compelling case of actual innocence, see  Schlup v. Delo, 513 U.S. 298, 314315 (1995). He has done neither.


109
As to the first question, Lee says the sudden disappearance of his  witnesses caused him to neglect Rule 24.10. In one sense, of course, he is  right, for he would not have requested 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 default. Lee must also show, given the state of the trial when the motion  was made, that an external factor impeded counsels efforts to comply with the  States procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). While the  departure of his key witnesses may have taken him by surprise (and caused him  not to comply with Rule 24.09s writing 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.


110
Nor has Lee shown that an evidentiary hearing is needed to determine  whether a constitutional violation has probably resulted in the conviction of  one who is actually innocent. Id., at 496. To fall within this narrow class of  cases, McCleskey v. Zant, 499 U.S. 467, 494 (1991), Lee must demonstrate that it  is more likely than not that no reasonable juror would have convicted him in  light of the new evidence. Schlup v. Delo, supra, at 327, 314315. 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 prosecutions four eyewitnesses. Even with the  relatives testimony, a reasonable juror could vote to convict.


111
* * *


112
Flying banners of federalism, the Courts 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 following the course Henry  prescribed. Though the Court disclaims reliance upon Henry, it has in fact  revived that cases discredited rationale. Serious doubt is now cast upon many  state procedural rules and the convictions sustained under them.


113
Sound principles of federalism counsel against this result. I would affirm  the judgment of the Court of Appeals.

