Lee v. Kemna, 534 U.S. 362, 44 (2002)

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Cite as: 534 U. S. 362 (2002)

Kennedy, J., dissenting

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

II

A federal court could consider the merits of Lee's defaulted federal claim if he had shown cause for the default and prejudice therefrom, see Wainwright v. Sykes, 433 U. S., at 90-91, or made out a compelling case of actual innocence, see Schlup v. Delo, 513 U. S. 298, 314-315 (1995). He has done neither.

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 counsel's efforts to comply with the State's 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 24.09's 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.

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

405

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