502ORD$$1G 02-10-99 16:45:47 PGT•ORD1BV (Bound Volume)
998
OCTOBER TERM, 1991 Opinion of Blackmun, J.
502 U. S.
Under Ake v. Oklahoma, 470 U. S. 68, 74–75 (1985), the Virginia Supreme Court’s rejection may not be based on an independent state ground because Tharp v. Commonwealth, 211 Va. 1, 175 S. E. 2d 277 (1970), requires the Virginia Supreme Court to consider whether a constitutional right was abridged before denying an extension of time for filing a petition for appeal.5 The Virginia Supreme Court’s rejection of O’Dell’s appeal may also be an inadequate state ground. In James v. Kentucky, 466 U. S. 341 (1984), this Court held that only firmly established state procedural rules interpose a bar to the adjudication of federal constitutional claims. The ambiguity of the Virginia statute, Va. Code Ann. § 17–116.05:1B (1988), as to whether capital appeals are discretionary or as of right may preclude its use as a procedural bar.6 See also Ford v. Georgia, 498 U. S. 411 (1991) (state practice must be firmly established and regularly followed in order to prevent subsequent review by this Court); NAACP v. Alabama ex rel. Flowers, 377 U. S. 288, 297 (1964) (application of procedural rule was pointless, severe, and consequently inadequate as jurisdictional bar to review). Finally, federal review of O’Dell’s claims is possible if it is necessary to prevent a fundamental miscarriage of justice, see Coleman v. Thompson, 501 U. S. 722, 757 (1991), or if the constitutional violation caused the conviction of an innocent person. See McCleskey v. Zant, 499 U. S. 467, 502 (1991). In short, there are serious questions as to whether O’Dell committed the crime or was capable of representing himself—questions rendered all the more serious by the fact that O’Dell’s life depends upon their answers. Because of the gross injustice that 5 While this Court rejected a similar argument in Coleman v. Thompson, 501 U. S. 722, 742 (1991), this case may be distinguishable. Coleman dealt with an untimely notice of appeal, not an untimely petition for appeal. Since the notice and assignments were timely, the Commonwealth was not unaware of petitioner’s arguments, as it arguably was in Coleman. The Commonwealth’s initial willingness to extend petitioner’s time to perfect his appeal provides additional evidence that Virginia can waive the untimeliness rule when fundamental constitutional issues are at stake. 6 As has been noted, see n. 4, supra, the wording of this statute—“appeals lie directly to the Supreme Court”—suggests an appeal as of right, rather than a discretionary petition for appeal. According to petitioner’s counsel, even the Clerk’s office and the Commonwealth’s attorney were uncertain as to whether petitioner was entitled to an appeal as of right.
