No. 89-7662


[June 24, 1991]

Justice White, concurring and concurring in the judgment.

I concur in the judgment of the Court and I join in its opinion, but add a few words concerning what occurred below. Harris v. Reed stated that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ` "clearly and expressly" ' states that its judgment rests on a state procedural bar. " 489 U.S. 255, 263 (1989), quoting Caldwell v. Mississippi, 472 U.S. 320, 327 (1985), and Michigan v. Long, 463 U.S. 1032, 1041 (1983). If there were nothing before us but the order granting the State's motion to dismiss for untimeliness, it would be clear enough that the dismissal was based on a procedural default.

But the state court did not grant the State's explicit request for an early ruling on the motion. Instead, the court delayed ruling on the motion to dismiss, and hence briefs on both the motion and the merits were filed. Six months later, the court "upon consideration whereof" granted the State's motion to dismiss the appeal. Hence petitioner's argument that the court studied the merits of the federal claims to determine whether to waive the procedural default, found those claims lacking, and only then granted the motion to dismiss; it is as though the court had said that it was granting the motion to dismiss the appeal as untimely because the federal claims were untenable and provided the court no reason to waive the default.

The predicate for this argument is that on occasion the Virginia Supreme Court waives the untimeliness rule. If that were true, the rule would not be an adequate and independent state ground barring direct or habeas review. Cf. Ake v. Oklahoma, 470 U.S. 68, 75 (1985). The filing of briefs and their consideration would do no more than buttress the claim that the rule is not strictly enforced.

Petitioner argues that the Virginia court does in fact waive the rule on occasion, but I am not now convinced that there is a practice of waiving the rule when constitutional issues are at stake, even fundamental ones. The evidence is too scanty to permit a conclusion that the rule is no longer an adequate and independent state ground barring federal review. The fact that merits briefs were filed and were considered by the court, without more, does not justify a different conclusion.