The black letter law is that “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.” A state procedural ruling is adequate if it is “firmly established and regularly followed.” In Beard, Secretary, Pennsylvania Department Of Corrections, et al. v. Kindler the Supreme Court decided whether a rule giving the courts discretion could be “regularly followed.”

Joseph Kindler, Scott Shaw and David Bernstein, burglarized a music store. Shaw and Bernstein were arrested while attempting a get away. Kindler escape but was found and arrested. Bernstein turned state evidence. Kindler and Shaw killed him. They were tried and sentenced to death for the murder.

While post trial motions were pending, Kindler escaped to Canada. He was arrested in Canada and the United Stated moved to extradite him. He escaped for a third time and it took two years to find him but he was arrested after committing another burglary. This time he was extradited.

While he was on the lam Pennsylvania courts threw out his post trial motions since he was not legally before the court. After he was returned to the United States he moved to reinstate his motions. The court refused and he filed writs of habeas corpus first in the state courts and then in the Federal Courts.

The Third Circuit Court of Appeals granted his habeas finding that since Pennsylvania law gave the judge discretion on whether or not to dismiss the motions when he fled the jurisdiction the law was not “regularly followed.”

The Supreme Court reversed. It pointed out that laws that give judges discretion are often valuable and provide beneficial rights to defendants. The court felt that the Third Circuit position would would discourage states from discretionary laws and the system would be harmed as a result.

Justice Kennedy in a concurring decision pointed out that the purpose of the “the adequate state grounds” requirement is not to aid escapees and that if for no other reasons this requires the reversal of the Third Circuit ruling.