390
Kennedy, J., dissenting
357 U. S. 449, 457 (1958), "petitioner could not fairly be deemed to have been apprised of [the rule's] existence." As the majority acknowledges, ante, at 367, 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.
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 Lee's 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 382. While this description of Missouri law is dubious, see, e. g., State v. Scott, 487 S. W. 2d 528, 530 (Mo. 1972), the Court's underlying, quite novel argument ignores the nature of rulemaking. 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 rule's applicability in special cases. Rule 24.10's 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.
The Court also ventures into new territory by implying that the trial judge's failure to cite the Rule was meaningful, ante, at 366, 380, 387, 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 381. If these considerations were significant, however, we would have relied upon them in previous cases where the trial court's denial of the defendant's motion on the merits was affirmed by the state appellate court because of an uncited procedural defect. See, e. g., James v. Kentucky,
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