Lee v. Kemna, 534 U.S. 362, 15 (2002)

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Opinion of the Court

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

Ordinarily, violation of "firmly established and regularly followed" state rules—for example, those involved in this case—will be adequate to foreclose review of a federal claim. James v. Kentucky, 466 U. S. 341, 348 (1984); see Ford v. Georgia, 498 U. S. 411, 422-424 (1991). There are, however, exceptional cases in which exorbitant application of a 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.

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

8 Missouri argues in two footnotes to its brief that Lee's federal claim fails for a reason independent of Rules 24.09 and 24.10, namely, that he raised only state-law objections to denial of the continuance motion in state court. Brief for Respondent 16, n. 2, 32, n. 7. Lee urges, in 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. 86-87, 90-95). Missouri did not advance its current contention in the State's Eighth Circuit brief or in its brief in opposition to the petition for certiorari. We therefore exercise "our discretion to deem the [alleged] defect waived." Oklahoma City v. Tuttle, 471 U. S. 808, 816 (1985).

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