Lee v. Kemna, 534 U.S. 362, 27 (2002)

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Kennedy, J., dissenting

Smith, 525 U. S. 459, 470 (1999) (We ordinarily "do not decide in the first instance issues not decided below.").

* * *

For the reasons stated, the judgment of the United States Court of Appeals for the Eighth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

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

The Court's decision commits us to a new and, in my view, unwise course. Its contextual approach places unnecessary and unwarranted new responsibilities on state trial judges, injects troubling instability into the criminal justice system, and reaches the wrong result even under its own premises. These considerations prompt my respectful dissent.


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 State's interest in enforcing its laws." Id., at 731.

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

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