Lee v. Kemna, 534 U.S. 362, 25 (2002)

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Opinion of the Court

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 393-395, 406. This protracted exercise is a prime example of the dissent's 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 dissent's shrill prediction that today's decision will disrupt our federal system were accurate, we would have seen clear signals of such disruption in the 11 years since Osborne. The absence of even dim distress signals demonstrates both the tight contours of Osborne and the groundlessness of the dissent's frantic forecast of doom. See United States v. Travers, 514 F. 2d 1171, 1174 (CA2 1974) (Friendly, J.) ("Cassandra-like predictions in dissent are not a sure guide to the breadth of the majority's ruling").

It may be questioned, moreover, whether the dissent, put to the test, would fully embrace the unyielding theory that it is never appropriate to evaluate the state interest in a procedural rule against the circumstances of a particular

16 Henry has been called "radical," post, at 393 (quoting R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 584 (4th ed. 1996)), not for pursuing an "as applied" 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 584-585. 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 prosecution's case was an adequate substitute. 379 U. S., at 448-449. Nothing of the sort is involved in this case. Lee is not endeavoring to designate some later motion, e. g., one for a new trial, as an adequate substitute for a 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 367-368. On whether such repetition serves a legitimate state interest, Osborne, not Henry, controls.

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