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Respondent’s position on Petitioners’ fee motion, the
Arkansas Supreme Court denied Respondent’s request
to file a belated response. Supp. App. 2a. Moreover, the
court denied Petitioners’ motion before Petitioners
were required to submit timesheets and other evidence
in support of their fee request. Thus, the court had no
basis for evaluating whether the estimated fee requested by Petitioners was reasonable under federal
law. Given those circumstances, it is inappropriate to
simply assume—as Petitioners must in seeking this
Court’s review—that the Arkansas Supreme Court’s
order denying fees rested on federal law considerations
absent from the face of the Arkansas Supreme Court’s
order and which it appears that the court never considered. Instead, it is clear that decision rested on state
law.
Because the Arkansas Supreme Court’s decision is
supported by the adequate and independent state law
ground of Petitioners’ procedural default, this Court
should deny the petition for lack of jurisdiction. See
N.C.P. Mktg. Grp., Inc. v. BG Star Prods., Inc., 129 S. Ct.
1577, 1578 (2009) (statement of Kennedy, J., respecting
the denial of certiorari) (even where a petition for certiorari raises an important question of federal law, it is
not a suitable case for resolution of that question if it
would require the Court to “resolve . . . antecedent
questions under state law”); Ylst v. Nunnemaker, 501
U.S. 797, 801 (1991) (“When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in
federal court.”); Wolf v. Weinstein, 372 U.S. 633, 636