(Slip Opinion)              OCTOBER TERM, 2009                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 

, 337.


SUPREME COURT OF THE UNITED STATES

                                       Syllabus

BEARD, SECRETARY, PENNSYLVANIA DEPARTMENT
       OF CORRECTIONS, ET AL. v. KINDLER

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                  THE THIRD CIRCUIT

  No. 08–992.      Argued November 2, 2009—Decided December 8, 2009
Respondent Kindler was convicted of capital murder in Pennsylvania
  state court, and the jury recommended a death sentence. Kindler
  filed postverdict motions challenging his conviction and sentence, but
  before the trial court could consider the motions or the jury’s death
  recommendation, Kindler escaped and fled to Canada. The state trial
  court subsequently dismissed Kindler’s postverdict motions because
  of his escape. Canadian authorities ultimately captured Kindler and
  held him in jail pending extradition. But before Kindler could be
  transferred from Canadian custody, he escaped again, this time re
  maining at large for more than two years. He was eventually recap
  tured and transferred to the United States. Once back in this coun
  try, Kindler sought to reinstate his postverdict motions, but the trial
  court denied relief, holding that the judge who had dismissed the mo
  tions had not abused his discretion under Pennsylvania’s fugitive for
  feiture law. Kindler argued on direct appeal that the trial court
  erred in declining to address the merits of his postverdict motions,
  but the Pennsylvania Supreme Court affirmed. Kindler’s claims
  were rejected on state habeas, and he sought federal habeas relief.
  Under the adequate state ground doctrine, a federal habeas court will
  not review a claim rejected by a state court “if the decision of [the
  state] court rests on a state law ground that is independent of the
  federal question and adequate to support the judgment.” Coleman v.
  Thompson, 

, 729. The District Court nonetheless
  granted Kindler’s habeas petition, determining that the state fugitive
  forfeiture rule did not provide an adequate basis to bar federal review
  of Kindler’s habeas claims. The Third Circuit affirmed, and the
  Commonwealth petitioned for certiorari. It argued that the Third
2                         BEARD v. KINDLER

                                Syllabus

    Circuit had held the state fugitive forfeiture rule automatically in
    adequate because the state courts had discretion in applying it, and
    the Commonwealth sought review of that holding. The Court
    granted that petition.
Held: A state procedural rule is not automatically “inadequate” under
 the adequate state ground doctrine—and therefore unenforceable on
 federal habeas review—because the state rule is discretionary rather
 than mandatory. The question whether a state procedural ruling is
 adequate is itself a question of federal law. Lee v. Kemna, 

, 375. This Court has framed the adequacy inquiry by asking
 whether the state rule was “firmly established and regularly fol
 lowed.” Id., at 376. A discretionary state procedural rule can serve
 as an adequate ground to bar federal habeas review even if the ap
 propriate exercise of discretion may permit consideration of a federal
 claim in some cases but not others. A contrary holding would pose an
 unnecessary dilemma for the States: They could preserve flexibility
 by granting courts discretion to excuse procedural errors, but only at
 the cost of undermining the finality of state-court judgments. Or
 States could preserve the finality of their judgments by withholding
 such discretion, but only at the cost of precluding any flexibility in
 applying the rules. If forced to choose, many States would opt for
 mandatory rules to avoid the high costs of plenary federal review.
 That would be unfortunate in many cases, as discretionary rules are
 often desirable. The federal system, for example, often grants the
 trial judge broad discretion when his ringside perspective at the main
 event offers him a comparative advantage in decisionmaking. The
 States have followed suit. Given the federalism and comity concerns
 motivating the adequate state ground doctrine in the habeas context,
 see Coleman, supra, at 730, this Court should not disregard discre
 tionary state procedural rules that are in place in nearly every State
 and are substantially similar to those given full force in federal
 courts. Cf. Francis v. Henderson, 

, 541–542. Pp. 7–9.

, vacated and remanded.

  ROBERTS, C. J., delivered the opinion of the Court, in which all other
Members joined, except ALITO, J., who took no part in the consideration
or decision of the case. KENNEDY, J., filed a concurring opinion, in
which THOMAS, J., joined.
                        Cite as: 558 U. S. ____ (2009)                              1

                             Opinion of the Court

     NOTICE: This opinion is subject to formal revision before publication in the
     preliminary print of the United States Reports. Readers are requested to
     notify the Reporter of Decisions, Supreme Court of the United States, Wash
     ington, D. C. 20543, of any typographical or other formal errors, in order
     that corrections may be made before the preliminary print goes to press.


SUPREME COURT OF THE UNITED STATES
                                   _________________

                                   No. 08–992
                                   _________________


 JEFFREY A. BEARD, SECRETARY, PENNSYLVANIA

     DEPARTMENT OF CORRECTIONS, ET AL.,

      PETITIONERS v. JOSEPH J. KINDLER 

 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

            APPEALS FOR THE THIRD CIRCUIT

                              [December 8, 2009] 


   CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
   A federal habeas court will not review a claim rejected
by a state court “if the decision of [the state] court rests on
a state law ground that is independent of the federal
question and adequate to support the judgment.” Cole
man v. Thompson, 

, 729 (1991). We granted
certiorari to decide the following question: “Is a state
procedural rule automatically ‘inadequate’ under the
adequate-state-grounds doctrine—and therefore unen
forceable on federal habeas corpus review—because the
state rule is discretionary rather than mandatory?” Pet.
for Cert. i. Petitioners argue the correct answer is “no.”
At oral argument, respondent—consistent with his posi
tion below—expressly agreed. We do too, and accordingly
vacate the judgment of the Court of Appeals.
                          I
  In 1982, Joseph Kindler, along with Scott Shaw and
David Bernstein, burglarized a music store in Bucks
County, Pennsylvania. Police stopped the getaway car
2                   BEARD v. KINDLER

                     Opinion of the Court

and arrested Shaw and Bernstein. In a harbinger of
things to come, Kindler escaped. Commonwealth v. Kin
dler, 

, 236, 

, 5, cert. denied, 

 (1994).
  Police later arrested Kindler and charged him with
burglary. He was released on bail. Bernstein agreed to
testify against Kindler, but Kindler had other plans. At
about 2:30 a.m. on July 25, 1982, Kindler and Shaw at
tacked Bernstein outside his apartment. Kindler beat
Bernstein with a baseball bat approximately 20 times, and
Shaw shocked Bernstein 5 times with an electric prod.
Bernstein at that point was still alive but unable to move,
and Kindler and Shaw dragged their victim to their
nearby car, loaded him in the trunk, and drove to the
Delaware River. At the river, Kindler tied a cinder block
around Bernstein’s neck and dumped him in the water. A
forensic examiner later determined that Bernstein died of
drowning and massive head injuries. 536 Pa., at 236–239,

, at 5–6.
  Kindler was brought to trial and convicted of capital
murder. The jury recommended a death sentence, and
Kindler filed postverdict motions. Id., at 230–231, 

, at 2.
  But on September 19, 1984, before the trial court could
consider the motions or the jury’s death recommendation,
Kindler escaped. Ibid. In an organized effort to saw
through the external prison bars with smuggled tools,
Kindler broke out of the maximum-security wing of the
prison and headed for Canada. See Commonwealth v.
Kindler, 

, 517–518, and n. 4, 

,
145, and n. 4 (1998).
  Kindler remained a fugitive in Canada until April 26,
1985, when he was arrested in Quebec for separate bur
glary offenses. The United States sought Kindler’s return,
but an extradition treaty allowed Canada to refuse to
hand over anyone likely to face execution. See Kindler v.
                 Cite as: 558 U. S. ____ (2009)           3

                     Opinion of the Court

Canada (Minister of Justice), [1991] 2 S. C. R. 779.
  Kindler turned into something of a local celebrity. He
even appeared on Canadian television, explaining, among
other things, how he had escaped and why he chose Can
ada: “I knew there was no death penalty here.” CTV
National News: Joseph Kindler’s Fate Unresolved (Cana
dian television broadcast Sept. 22, 1985) (videos available
in Clerk of Court’s case file). Canadian authorities ulti
mately acquiesced to overtures from the United States and
agreed to extradite Kindler. Kindler, supra, at 231, 

, at 2.
  But before Kindler could be transferred from Canadian
custody, he escaped again. On the night of October 23,
1986, Kindler broke through a skylight on the 13th floor of
the jail (his fellow inmates had hoisted him up to the
skylight 15 feet above the floor) and escaped to the roof,
where he stood 175 feet above ground. Armed with 13
stories’ worth of bedsheets tied together, Kindler safely
rappelled down the side of the jail. (A fellow escapee was
not as lucky—the sheets ripped on his way down, causing
him to fall 50 feet to his death.) Kindler, 554 Pa., at 517–
519, 

, at 145.
  This time, Kindler remained on the lam for more than
two years, until he was featured on the popular television
show, “America’s Most Wanted.” Characterizing Kindler
as “an above average criminal” and “a chess player who
understands when to make his move,” the show asked
viewers for information to help capture him. America’s
Most Wanted, Sept. 4, 1988, Season 1, Episode 30, at
10:01. Several viewers recognized Kindler and notified
Canadian authorities, who arrested him in September
1988. 554 Pa., at 519, 

, at 145.
  Kindler again fought extradition. On September 16,
1991, after three years of litigation, the Supreme Court of
Canada rejected Kindler’s efforts. See Kindler, 2 S. C. R.
779. That same day, Canadian officials extradited Kindler
4                    BEARD v. KINDLER

                     Opinion of the Court

to the United States. Kindler v. Horn, 

, 334 (ED Pa. 2003).
   In the meantime, in 1984, the Pennsylvania trial court
had dismissed Kindler’s postverdict motions because of his
original escape. Once back in the United States, Kindler
filed a motion to reinstate those challenges to his convic
tion and sentence. The trial court denied the reinstate
ment motion, holding that the trial court judge who had
dismissed the postverdict motions in 1984 had not abused
his discretion. In October 1991—more than seven years
after the jury’s death recommendation—the court formally
imposed the death sentence. Commonwealth v. Kindler,
No. 2747 etc. (Pa. Ct. Common Pleas, Feb. 28, 1992), App.
66–70.
   Kindler appealed, arguing that the trial court erred in
declining to address the merits of his postverdict motions.
The Pennsylvania Supreme Court affirmed. Kindler, 536
Pa., at 232–234, 

, at 3. That court recognized
that “trial courts, when faced with a defendant in fugitive
status, . . . have every right to fashion an appropriate
response[,] which can include the dismissal of pending
post-verdict motions.” Id., at 233, 

, at 3. The
court then determined that the trial court’s decision to
dismiss Kindler’s claims fell within its authority: The
“dismiss[al] [of] the post-verdict motions was a reasonable
response to Appellant’s ‘flouting’ of the authority of the
court.” Id., at 233–234, 

, at 3. Under Pennsyl
vania’s fugitive forfeiture law, the court concluded, Kin
dler’s case therefore came to it “without any allegations of
error (direct or collateral) preserved.” Id., at 234, 

, at 4.
   The Pennsylvania Supreme Court nonetheless con
ducted the “limited review” mandated for death sentences
under Pennsylvania law. Under that review, the court
was required to confirm that the evidence was sufficient to
support the conviction of first-degree murder and at least
                 Cite as: 558 U. S. ____ (2009)            5

                     Opinion of the Court

one aggravating factor, and that the sentence was not
excessive, disproportionate, or the product of passion or
prejudice. Id., at 234–235, 

, at 4. Satisfied that
Kindler’s conviction met these standards, the court af
firmed his conviction and sentence. We denied certiorari.
Kindler v. Pennsylvania, 

 (1994).
   On state habeas, the Court of Common Pleas rejected
Kindler’s claims. That court held that the Pennsylvania
Supreme Court had already ruled that Kindler’s escape
forfeited all claims challenging his conviction and sentence
that Kindler may once have been entitled to bring. Com
monwealth v. Kindler, No. 2747 etc. (July 23, 1997), App.
183, 187–188. The Pennsylvania Supreme Court affirmed.
Kindler, 554 Pa., at 514, 

, at 143.
   Kindler then sought federal habeas relief. The District
Court determined that the fugitive forfeiture rule did not
provide an adequate basis to bar federal review of Kin
dler’s habeas claims. 

, at 340–343. The
District Court then proceeded to address the merits,
granting Kindler’s petition on the grounds that he was
sentenced based on jury instructions that were unconsti
tutional under Mills v. Maryland, 

 (1988),
and that the prosecutor improperly introduced an aggra
vating factor at sentencing. 

, at 346–351,
357–358. The court rejected Kindler’s ineffective assis
tance of counsel claim. Id., at 356.
   The Third Circuit affirmed. That court began by recog
nizing that “[a] procedural rule that is consistently applied
in the vast majority of cases is adequate to bar federal
habeas review even if state courts are willing to occasion
ally overlook it and review the merits of a claim for relief
where the rule would otherwise apply.” Kindler v. Horn,

, 79 (2008). The Court of Appeals then con
sidered the Pennsylvania fugitive forfeiture rule in place
at the time of Kindler’s first escape: “Pennsylvania courts
had discretion to hear an appeal filed by a fugitive who
6                    BEARD v. KINDLER

                     Opinion of the Court

had been returned to custody before an appeal was initi
ated or dismissed. . . . Accordingly, the fugitive forfeiture
rule was not ‘firmly established’ and therefore was not an
independent and adequate procedural rule sufficient to
bar review of the merits of a habeas petition in federal
court.” Ibid. (citing Doctor v. Walters, 

, 684–
686 (CA3 1996)). The court thus determined that “the
state trial court still had discretion to reinstate his post
verdict motions. Accordingly, we conclude that, under
Doctor, Pennsylvania’s fugitive waiver law did not pre
clude the district court from reviewing the merits of the
claims raised in Kindler’s habeas petition.” 

, at
80. Turning to the merits, the Court of Appeals disagreed
with the District Court on the improper aggravating factor
claim, but held that Kindler was entitled to relief based on
his Mills and ineffective assistance of counsel claims. 

, at 80–87.
   The Commonwealth petitioned for certiorari, arguing
that the Court of Appeals’ determination that state discre
tionary rules are automatically inadequate conflicted with
the holdings of other Courts of Appeals and warranted
this Court’s review. Pet. for Cert. 6–11. Kindler coun
tered that the Commonwealth had mischaracterized the
Third Circuit’s holding. Relying on the court’s citation of
the Doctor opinion, Kindler argued that the Third Circuit
did not hold that discretionary state rules are automati
cally inadequate; rather the court determined that the
state courts applied “a new and different rule from that in
existence at the time of the alleged default.” Brief in
Opposition 3. It was that new rule, Kindler maintained,
that the Third Circuit found inadequate. Ibid.
   We granted the Commonwealth’s petition for certiorari.
556 U. S. ___ (2009). That petition asks us to decide
whether discretionary procedural rulings are automati
cally inadequate to bar federal court review on habeas.
                 Cite as: 558 U. S. ____ (2009) 
          7

                     Opinion of the Court 


                               II 

    The question whether a state procedural ruling is ade
quate is itself a question of federal law. Lee v. Kemna, 

, 375 (2002). We have framed the adequacy
inquiry by asking whether the state rule in question was
“ ‘firmly established and regularly followed.’ ” Id., at 376
(quoting James v. Kentucky, 

, 348 (1984)).
    We hold that a discretionary state procedural rule can
serve as an adequate ground to bar federal habeas review.
Nothing inherent in such a rule renders it inadequate for
purposes of the adequate state ground doctrine. To the
contrary, a discretionary rule can be “firmly established”
and “regularly followed”—even if the appropriate exercise
of discretion may permit consideration of a federal claim
in some cases but not others. See Meltzer, State Court
Forfeitures of Federal Rights, 99 Harv. L. Rev. 1128, 1140
(1986) (“[R]efusals to exercise discretion do not form an
important independent category under the inadequate
state ground doctrine”).
    A contrary holding would pose an unnecessary dilemma
for the States: States could preserve flexibility by granting
courts discretion to excuse procedural errors, but only at
the cost of undermining the finality of state court judg
ments. Or States could preserve the finality of their
judgments by withholding such discretion, but only at the
cost of precluding any flexibility in applying the rules.
    We are told that, if forced to choose, many States would
opt for mandatory rules to avoid the high costs that come
with plenary federal review. See, e.g., Brief for State of
California et al. as Amici Curiae 19; Brief for Criminal
Justice Legal Foundation as Amicus Curiae 14. That
would be unfortunate in many cases, as discretionary
rules are often desirable. In some circumstances, for
example, the factors facing trial courts “are so numerous,
variable and subtle that the fashioning of rigid rules
would be more likely to impair [the trial judge’s] ability to
8                    BEARD v. KINDLER

                     Opinion of the Court

deal fairly with a particular problem than to lead to a just
result.” United States v. McCoy, 

, 44 (CA7)
(Stevens, J.), cert. denied, 

 (1975); see also
Friendly, Indiscretion About Discretion, 31 Emory L. J.
747, 760–761 (1982). The result would be particularly
unfortunate for criminal defendants, who would lose the
opportunity to argue that a procedural default should be
excused through the exercise of judicial discretion. See
Henry v. Mississippi, 

, 463, n. 3 (1965)
(Harlan, J., dissenting) (“If, in order to insulate its deci
sions from reversal by this Court, a state court must strip
itself of the discretionary power to differentiate between
different sets of circumstances, the [adequate state
ground] rule operates in a most perverse way”).
   It is perhaps unsurprising, then, that the federal system
often grants broad discretion to the trial judge when his
ringside perspective at the “ ‘main event’ ” offers him a
comparative advantage in decisionmaking. Wainwright v.
Sykes, 

, 90 (1977); cf. United States v. Poynter,

, 351–352 (CA6 2007). The States seem to
value discretionary rules as much as the Federal Govern
ment does. See Brief for State of California et al. as Amici
Curiae 16–17 (citing various state discretionary proce
dural rules). In light of the federalism and comity con
cerns that motivate the adequate state ground doctrine in
the habeas context, see Coleman, 501 U. S., at 730, it
would seem particularly strange to disregard state proce
dural rules that are substantially similar to those to which
we give full force in our own courts. Cf. Francis v. Hen
derson, 

, 541–542 (1976). Even stranger to
do so with respect to rules in place in nearly every State,
and all at one fell swoop.
   We take our holding in this case to be uncontroversial—
so uncontroversial, in fact, that both parties agreed to the
point before this Court. See Tr. of Oral Arg. 29–31.
Rather than defending the question on which we granted
                  Cite as: 558 U. S. ____ (2009)            9

                      Opinion of the Court

certiorari—whether discretionary rules are automatically
inadequate—Kindler argues that the Pennsylvania courts
did not apply a discretionary rule at all, but instead ap
plied a new rule mandating dismissal. Such a mandatory
dismissal, Kindler contends, constituted a break from past
discretionary practice, and thus does not provide an ade
quate state ground to bar his federal claims. We leave it
to the Court of Appeals to address that argument, and any
others Kindler may have preserved, on remand.
  For its part, the Commonwealth urges us not only to
reject a per se rule about discretionary rulings, but also to
undertake “[a] new effort to state a standard for inade
quacy.” Brief for Petitioners 25. Amici supporting the
Commonwealth join in that request. See Brief for Crimi
nal Justice Legal Foundation as Amicus Curiae 6–10. We
decline that invitation as well. The procedural default at
issue here—escape from prison—is hardly a typical proce
dural default, making this case an unsuitable vehicle for
providing broad guidance on the adequate state ground
doctrine.
  If our holding in this case is narrow, it is because the
question we granted certiorari to decide is narrow. An
swering that question is sufficient unto the day.
  The judgment of the Court of Appeals for the Third
Circuit is vacated, and the case is remanded for further
proceedings consistent with this opinion.
                                             It is so ordered.

  JUSTICE ALITO took no part in the consideration or
decision of this case.
                 Cite as: 558 U. S. ____ (2009)           1

                   KENNEDY, J., concurring

SUPREME COURT OF THE UNITED STATES
                         _________________

                          No. 08–992
                         _________________


 JEFFREY A. BEARD, SECRETARY, PENNSYLVANIA

     DEPARTMENT OF CORRECTIONS, ET AL.,

      PETITIONERS v. JOSEPH J. KINDLER 

 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

            APPEALS FOR THE THIRD CIRCUIT

                      [December 8, 2009] 


  JUSTICE KENNEDY, with whom JUSTICE THOMAS joins,
concurring.
  Due consideration of the phrasing in the question pre
sented and of the arguments and concessions by counsel
leads to the conclusion that this case should be vacated
and remanded, and I join the Court’s opinion. The appar
ent difficulty the Court of Appeals for the Third Circuit
found in accepting the Supreme Court of Pennsylvania’s
procedural bar conclusion, however, invites this further
comment.
  The adequate state ground doctrine cannot be applied
without consideration of the purposes it is designed to
serve. By refraining from deciding cases that rest on an
adequate and independent state ground, federal courts
show proper respect for state courts and avoid rendering
advisory opinions. Michigan v. Long, 

, 1040
(1983). The claimed adequate and independent state
ground at issue in this case is a state procedural rule. We
have not allowed state courts to bar review of federal
claims by invoking new procedural rules without adequate
notice to litigants who, in asserting their federal rights,
have in good faith complied with existing state procedural
law. “Novelty in procedural requirements cannot be per
mitted to thwart review in this Court applied for by those
2                    BEARD v. KINDLER

                    KENNEDY, J., concurring

who, in justified reliance upon prior decisions, seek vindi
cation in state courts of their federal constitutional
rights.” NAACP v. Alabama ex rel. Patterson, 

, 457–458 (1958). We have also been mindful of the
danger that novel state procedural requirements will be
imposed for the purpose of evading compliance with a
federal standard. See, e.g., NAACP v. Alabama ex rel.
Flowers, 

, 293–302 (1964).
   Neither of these concerns applies here. First, no one
could seriously entertain the notion that Kindler acted in
“justified reliance” when he fled beyond the jurisdiction of
the Pennsylvania courts. Even if a hypothetical escapee
studiously examined the case law before making an in
formed decision that flight was worth it, that is not the
reliance the law should be required to consider. There is
no justification for an unlawful escape, which “operates as
an affront to the dignity of [a] court’s proceedings.” Or
tega-Rodriguez v. United States, 

, 246 (1993).
And if some prior court rulings allowed a former escapee
to reinstate forfeited claims, there is no convincing reason
to say a future escapee is entitled to similar treatment.
Nor is there any indication that the Supreme Court of
Pennsylvania adopted its forfeiture rule out of any hostil
ity toward legitimate constitutional claims.
   It is most doubtful that, in light of its underlying pur
poses, the adequate state ground doctrine ought to prevent
a State from adopting, and enforcing, a sensible rule that
the escaped felon forfeits any pending postverdict motions.
The law is entitled to protect the regularity and predict
ability of its own processes, and its own interest in the
prompt adjudication of disputed issues, by imposing a rule
of waiver quite without regard to some notion of express or
constructive reliance by the one who escapes. And if that
principle had not been fully explicated in prior decisions, it
seems to me that the State can establish a new baseline
without later having its procedural bar ignored by the
                 Cite as: 558 U. S. ____ (2009)           3

                   KENNEDY, J., concurring

federal courts. This should be true even if the principles
barring the postverdict motions are first elaborated in the
instant case.
  The process of elaborating, defining, and then shaping a
State’s decisional law after considering the competing
arguments in a specific case rests on this premise: Novel
facts and circumstances may disclose principles that,
while consistent with the logic and rationality the law
seeks and in that sense predictable, still have not yet been
defined with precision in earlier cases. This is the dy
namic of the case system we rely upon to explain the law.
  The adequate state ground doctrine ought not to fore
close the case process in the separate States. A too
rigorous or demanding insistence that procedural re
quirements be established in all of their detail before they
can be given effect in federal court would deprive the
States of the case law decisional dynamic that the Judici
ary of the United States finds necessary and appropriate
for the elaboration of its own procedural rules. See, e.g.,
Smith v. United States, 

 (1876). Save where
there is exclusive jurisdiction or federal supremacy, a
proper constitutional balance ought not give federal courts
latitude in the interpretation and elaboration of its law
that it then withholds from the States. There is no sense
in applying the adequate state ground rule without its
being informed by these principles.
  Whether the structure of this case either permits or
requires consideration of these matters is not clear at this
stage. In a proper case, however, these concerns should be
addressed. It seems most doubtful that this Court can or
should require federal courts to disregard a state proce
dural ground that was not in all respects explicit before
the case when it was first announced, absent a showing of
a purpose or pattern to evade constitutional guarantees.
And this is particularly so when the state procedural
requirement arose from the necessity, in new circum
4                   BEARD v. KINDLER

                   KENNEDY, J., concurring

stances, to prevent a travesty of the State’s own respected
system. In this context, the objecting party ought not to
have the power to block federal courts from honoring
state-law determinations that were otherwise valid, en
forceable, and consistent with constitutional guarantees.