Harris v. Reed

LOCATION: Kansas City Missouri School District

DOCKET NO.: 87-5677
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 489 US 255 (1989)
ARGUED: Oct 12, 1988
DECIDED: Feb 22, 1989

Kimball R. Anderson - on behalf of the Petitioner
Robert V. Shuff, Jr. - on behalf of the Respondent

Facts of the case


Media for Harris v. Reed

Audio Transcription for Oral Argument - October 12, 1988 in Harris v. Reed

William H. Rehnquist:

We'll hear argument next in No. 87-5677, Warren Lee Harris v. Marvin Reed.

Mr. Anderson, you may proceed whenever you're ready.

Kimball R. Anderson:

Mr. Chief Justice, and may it please the Court.

I am here today to urge that the Court apply the plain statement rule of Michigan v. Long to Federal habeas review of state court convictions under 28 USC Sec. 2254.

I suggest that if a state court plainly relies on a procedural default, then Federal habeas review should ordinarily be foreclosed, absent cause and prejudice.

On the other hand, if, as in this case, the state court is ambiguous or obscure concerning whether it relied on the procedural default, then I suggest that that ambiguity should be resolved in favor of preserving the Federal issue for habeas review.

William H. Rehnquist:

Mr. Anderson--

--Do you think that... excuse me.

Mr. Anderson, if the state court opinion says there has been a procedural default here and we need not reach this question, nonetheless, you know, for guidance, or whatever, then they go ahead and express an opinion on it... how does that come out under your rule?

Kimball R. Anderson:

Well, this Court has said on several occasions that merely noting a procedural default is not the same as actually relying on the procedural default.

Oftentimes state courts... and indeed, in Illinois, the state court will note a procedural default but then go on to excuse it, and consider and dispose of the case on the merit.

William H. Rehnquist:

And that is your view, as to how this ought to be handled too?

Kimball R. Anderson:


My view is that absent a plain statement clearly invoking the procedural default, as opposed to merely noting it, that absent a plain statement invoking the default and finding the issue waived, then the Federal issue that's been discussed by the appellate court ought to be preserved for review by the--

William H. Rehnquist:

So in order to rely on procedural default, the state court opinion must say nothing about the merits of the question?

Kimball R. Anderson:

--Oh, no.

In order to... the rule would be the same as this Court has articulated in Michigan v. Long, and also in the context of a procedural default that Caldwell v. Mississippi.

If the state court plainly relies on a procedural default, then that would foreclose--

William H. Rehnquist:


But... okay.


Kimball R. Anderson:

--No, not necessarily alone.

If they... yes.

If they do that, then Federal habeas review is foreclosed absent cause and prejudice, even if they go on to discuss the Federal issue in dicta.

Byron R. White:


So if the Court says, we have two reasons here for decision: one, a procedural default, two, you haven't got anything on the merits anyway.

Kimball R. Anderson:

That's correct, Your Honor.

And that is--

Byron R. White:

Then what?

Kimball R. Anderson:

--Well, that's the circumstances that arises occasionally where you have alternative reliance.