BROWN V. ALLEN, 344 U. S. 443 (1953) -- US Supreme Court Cases from Justia & Oyez

1. Where, on direct review of his conviction, a state prisoner's claim of federal constitutional right has been decided adversely to him by the state supreme court and an application to this Court for certiorari has been denied, he has satisfied the requirement of 28 U.S.C. § 2254 that state remedies be exhausted before a federal court may grant an application for habeas corpus. Pp. 344 U. S. 446-450.

(a) It is not necessary in such circumstances that he pursue in the state courts a collateral remedy based on the same evidence and issues. Pp. 344 U. S. 447-450.

(b) Section 2254 is not to be construed as requiring repetitious applications to state courts for relief. P. 344 U. S. 448, n. 3.

2. A denial of certiorari by this Court (with no statement of reasons therefor) to review a decision of a state supreme court affirming a conviction in a criminal prosecution should be given no weight by a federal court in passing upon the same petitioner's application for a writ of habeas corpus . (Opinion of MR. JUSTICE FRANKFURTER, stating the position of a majority of the Court on this point.) Pp. 344 U. S. 489-497.

3. On a state prisoner's application for habeas corpus on federal constitutional grounds, the federal district court may take into consideration the proceedings and adjudications in the state trial and appellate courts. Pp. 344 U. S. 457-458.

(a) Where the state decision was based on an adequate state ground, no further examination is required unless no state remedy for the deprivation of federal constitutional rights ever existed. P. 344 U. S. 458.

(b) Where there is material conflict of fact in the transcript of evidence as to deprivation of constitutional rights, the district court

Page 344 U. S. 444

may properly depend upon the state's resolution of the issue. P. 344 U. S. 458.

(c) In other circumstances, the state adjudication carries the weight that federal practice gives to the conclusion of a court of last resort of another jurisdiction on federal constitutional issues, although res judicata is not applicable. P. 344 U. S. 458.

4. Although in each of these cases the District Court erroneously gave consideration to this Court's prior denial of certiorari, it affirmatively appears from the record that the error could not have affected the result, and such error may be and is disregarded as harmless. Fed.Rules Crim.Proc., 52. Pp. 344 U. S. 458-460.

5. On the application of a state prisoner to a federal district court for habeas corpus, when the records of the state trial and appellate courts are before the district court, it is within the discretion of the district court whether to take evidence and hear argument on the federal constitutional issues, and the action of the district court in not taking evidence or hearing argument in the case here involved was not an abuse of that discretion. Pp. 344 U. S. 460-465.

6. In 28 U.S. C. §§ 2243 and 2244, the word "entertain" means a federal district court's conclusion, after examination of the habeas corpus application with such accompanying papers as the court deems necessary, that a hearing on the merits, legal or factual, is proper. Pp. 344 U. S. 460-461.

7. In No. 32, petitioner, a Negro, was not denied due process or equal protection in violation of the Fourteenth Amendment by the method of selecting grand and petit juries from lists limited by state statute to taxpayers, though the lists had a higher proportion of white than Negro citizens. Pp. 344 U. S. 466-474.

8. In No. 32, petitioner was not denied due process by the admission in evidence against him of confessions not shown to have been coerced. Pp. 344 U. S. 474-476.

9. In No. 22, petitioner, a Negro, did not show by clear evidence that, in the selection of jurors which was actually made in his case, there was discrimination based solely on race; and petitioner's conviction cannot be set aside on that ground as violative of the Equal Protection Clause of the Fourteenth Amendment. The comparatively small number of names of Negroes in the jury box was insufficient, in itself, to establish such discrimination. Pp. 344 U. S. 477-482.

10. In No. 20, the State Supreme Court had refused review on the merits of petitioners' conviction and death sentence (challenged on federal constitutional grounds) because of petitioners' failure to perfect their appeal within the 60-day limit applicable under state

Page 344 U. S. 445

law, the appeal not having been perfected until the 61st day. Held: a failure to use a state's available remedy, in the absence of some interference or incapacity, bars federal habeas corpus. Pp. 344 U. S. 482-487.

192 F.2d 477, 763, affirmed.

For Opinion of the Court, see post, p. 344 U. S. 446.

For notation of MR. JUSTICE JACKSON, concurring in the result, see post, p. 344 U. S. 487.

For notation of position of MR. JUSTICE BURTON and MR. JUSTICE CLARK, see post, p. 344 U. S. 487.

For opinion of MR. JUSTICE FRANKFURTER as to the legal significance of this Court's denial of certiorari and the bearing of proceedings in state courts on disposition of application for writ of habeas corpus in a federal district court, see post, p. 344 U. S. 488.

For notation of position of MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS on the same two points, see post, p. 344 U. S. 513.

For opinion of MR. JUSTICE JACKSON, concurring in the result announced by the Opinion of the Court, see post, p. 344 U. S. 532.

For dissenting opinion of MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, see post, p. 344 U. S. 548.

For dissenting opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS, see post, p. 344 U. S. 554.

No.32. Petitioner, a state prisoner, applied to the Federal District Court for habeas corpus, after his petition to this Court for certiorari to review the State Supreme Court's affirmance of his conviction had been denied. 341 U.S. 943. The District Court dismissed the application. 98 F. Supp. 866. The Court of Appeals affirmed. 192 F.2d 477. This Court granted certiorari. 343 U.S. 903. The case was argued at the October 1951 Term, but was restored to the docket for reargument. 343 U.S. 973. Judgment affirmed, p. 344 U. S. 487.

No. 22. Petitioner, a state prisoner, applied to the Federal District Court for habeas corpus, after his petition to this Court for certiorari to review the State Supreme Court's affirmance of his conviction had been denied. 340 U.S. 835. The District Court dismissed

Page 344 U. S. 446

the application. 99 F.Supp. 92. The Court of Appeals affirmed. 192 F.2d 477. This Court granted certiorari. 342 U.S. 953. The case was argued at the October 1951 Term, but was restored to the docket for reargument. 343 U.S. 973. Judgment affirmed, p. 487.

No. 20. Petitioners, state prisoners, applied to the Federal District Court for habeas corpus after this Court had denied their petition for certiorari to review the State Supreme Court's refusal to consider on the merits an appeal from their conviction. 339 U.S. 954. The District Court dismissed the application. 99 F.Supp. 208. The Court of Appeals affirmed. 192 F.2d 763. This Court granted certiorari. 342 U.S. 941. The case was argued at the October 1951 Term, but was restored to the docket for reargument. 343 U.S. 973. Judgment affirmed, p. 344 U. S. 487.

MR. JUSTICE REED delivered the opinion of the Court.

Certiorari was granted to review judgments of the United States Court of Appeals for the Fourth Circuit. Brown v. Allen, 343 U.S. 903; Speller v. Allen, 342 U.S. 953; Daniels v. Allen, 342 U.S. 941. These cases

Page 344 U. S. 447

were argued last year. As the records raised serious federal constitutional questions upon which the carrying out of death sentences depended and procedural issues of importance in the relations between states and the federal government upon which there was disagreement in this Court, we decided to set the cases for reargument. 343 U.S. 973. We have now heard the cases again.

The judgments of affirmance were entered October 12, 1951, on appeal from three judgments of the United States District Court for the Eastern District of North Carolina, refusing writs of habeas corpus sought by prisoners convicted in that state. We conclude that all required procedure for state review of the convictions had been exhausted by petitioners in each case before they sought the writs of habeas corpus in the federal courts. In each case, petitions for certiorari to this Court for direct review of the state judgments rendered by the highest court of the state in the face of the same federal issues now presented by habeas corpus had been denied. [Footnote 1]

It is not necessary in such circumstances for the prisoner to ask the state for collateral relief, based on the same evidence and issues already decided by direct review with another petition for certiorari directed to this Court. [Footnote 2] It is to be noted that an applicant is barred unless he has "exhausted the remedies available in the courts of the State . . . by any available procedure." The legislative history shows that this paragraph, in haec verba, was presented to the Congress with the recommendation of

Page 344 U. S. 448

the Judicial Conference. The legislative history of § 2254 has no discussion of the considerations which moved congressional enactment other than that contained in S.Rep.No. 1559. But see a similar clause § 2254 in H.R. 3214, 80th Cong., 1st Sess.; H.R. 3214, 80th Cong., 2d Sess.; S.Rep.No. 1559, 80th Cong., 2d Sess., p. 9; Report of the Judicial Conferences of Senior Circuit Judges, 1947, pp. 17-20.

The second paragraph of § 2254 has been construed by several courts of appeals. In Ekberg v. McGee, 191 F.2d 625, the Ninth Circuit refused to consider that the statute meant to deny a federal forum where state procedures were inexhaustible. The Third Circuit in Master v. Baldi, 198 F.2d 113, 116, held that the exhaustion of one of several available alternative state remedies with this Court's denial of certiorari therefrom is all that is necessary. In Bacom v. Sullivan, 181 F.2d 177, and Bacom v. Sullivan, 194 F.2d 166, the Fifth Circuit ruled that, when a federal question had been presented to the state courts by at least one post-conviction procedure, certiorari on the same question having been once denied by this Court, there appeared a unique and extraordinary circumstance justifying federal examination under Darr v. Burford, 339 U. S. 200. [Footnote 3]

Page 344 U. S. 449

When, in April 1948, Judge Maris presented the Judicial Conference draft of § 2254 to the Senate Judiciary Subcommittee, the language of the revision of 28 U.S.C., on which the hearings were being held, set out three bases for exercise of federal jurisdiction over applications for habeas corpus from state prisoners. Under the language of the bill as it then read, an application might have been entertained where it appeared (1) that the applicant had exhausted the remedies available in the courts of the state, or (2) where there was no adequate remedy available in such courts, or (3) where such courts had denied the applicant a fair adjudication of the legality of his detention under the Constitution and laws of the United States. In accepting the recommendation of the Judicial Conference, the Congress eliminated the third basis of jurisdiction. S.Rep.No. 1559, p. 9, shows the reason for this as follows:

"The second purpose is to eliminate, as a ground of Federal jurisdiction to review by habeas corpus judgments of State courts, the proposition that the State court has denied a prisoner a 'fair adjudication of the legality of his detention under the Constitution and laws of the United States.' The Judicial Conference believes that this would be an undesirable

Page 344 U. S. 450

ground for Federal jurisdiction in addition to exhaustion of State remedies or lack of adequate remedy in the State courts because it would permit proceedings in the Federal court on this ground before the petitioner had exhausted his State remedies. This ground would, of course, always be open to a petitioner to assert in the Federal court after he had exhausted his State remedies or if he had no adequate State remedy."

"The third purpose is to substitute detailed and specific language for the phrase 'no adequate remedy available.' That phrase is not sufficiently specific and precise, and its meaning should, therefore, be spelled out in more detail in the section as is done by the amendment."

If the substitution for "adequate remedy available" of the present definition was intended by the Congress to eliminate the right of a state prisoner to apply for relief by habeas corpus to the lower federal courts, we do not think that the report would have suggested that a remedy for denial of a "fair adjudication" was in the federal court. The suggested elimination of district and circuit courts does not square with the other statutory habeas corpus provisions. See 28 U.S.C. §§ 2241, 2242, 2251, 2252, 2253, 3d paragraph. We are unwilling to conclude without a definite congressional direction that so radical a change was intended.

In each of these cases, the District Court in determining the propriety of its granting the writ, considered the effect of our refusal of certiorari on the same questions upon direct review of the judgments of the highest court of the state. As that question, pretermitted in our ruling in Darr v. Burford, 339 U. S. 200, 339 U. S. 214-217, a case where no certiorari was sought here from state denial of collateral relief by habeas corpus from imprisonment, had given rise to definite differences of opinion in the federal

Page 344 U. S. 451

courts, a ruling here was necessary. [Footnote 4] There is a similar difference in this Court. [Footnote 5] As other issues command a majority that upholds the judgments of the Court of Appeals, this opinion is that of the Court although it represents the minority view on the effect of our denial

Page 344 U. S. 452

of certiorari. The position of the majority upon that point is expressed by the opinion of Mr. Justice Frankfurter, Daniels v. Allen, 344 U. S. 443. A summary review of habeas corpus practice in the federal courts in relation to state criminal convictions will be found in Hawk v. Olson, 326 U. S. 271, 326 U. S. 274, and Darr v. Burford, 339 U. S. 200, 339 U. S. 203. It is hoped the conclusions reached herein will result in the improvement of the administration of justice and leave the indispensable function of the Great Writ unimpaired in usefulness.

II

. Effect of Former Proceedings

The effect to be given this Court's former refusal of certiorari in these cases was presented to the District Court which heard the applications for federal habeas corpus upon full records of the state proceedings in the trial and appellate courts. In No. 32, Brown v. Allen, the District Court, upon examination of the application, the answer, and the exhibits, adopted, without hearing argument or testimony, the findings of the sentencing judge with respect to both the composition of the grand jury and the voluntary character of the confession. These were the federal constitutional issues involved in the state trial. The record which the District Judge had before him embraced the record of the case in the North Carolina courts and this Court, including all the relevant portions of the transcript of proceedings in the sentencing court. The District Court then dismissed the petition. Sub nom. Brown v. Crawford, 98 F.Supp. 866.

In No. 22, Speller v. Allen, the petition for habeas corpus in the District Court raised again the same federal question which had been passed upon by the trial and appellate

Page 344 U. S. 453

courts in North Carolina and which had been offered to this Court on petition for certiorari, to-wit, the jury commissioners had, "pursuant to a long and continuous practice, discriminated against Negroes in the selection of juries, solely on account of race and/or color." The District Court had before it the record which had been filed in the Supreme Court of North Carolina on appeal. State v. Brown, 233 N.C. 202, 63 S.E.2d 99. Included in this record was the same transcript of proceedings in the trial court which had been before the State Supreme Court. In addition, the District Court took further evidence by way of testimony and stipulation. The District Court, upon examination of all the evidence and the stipulations, adopted the findings of the sentencing judge with respect to the composition of the trial jury. It added that petitioner "failed to substantiate the charge that he did not have a trial according to due process, . . ." The court then vacated the writ and held that, while the petition could be dismissed "solely in the light of the procedural history", there was the added alternative ground of failure to substantiate the charge. Sub nom. Speller v. Crawford, 99 F.Supp. 92, 97.

In No. 20, Daniels v. Allen, petitioners at the state trial made a timely motion to quash the indictment and challenged the array, alleging discrimination against Negroes in the selection of both grand and petit jurors in contravention of the guarantees of the Fourteenth Amendment. Timely objection was also made to admission in evidence of what were alleged to be coerced confessions. Petitioners contend that the admission of these confessions violated their due process rights under the Fourteenth Amendment. They also urge that the refusal of the Supreme Court of North Carolina to examine the merits of the trial record in the state courts because of their failure to serve a statement of the case on appeal until one day beyond the period of limitation, is a denial of equal protection under the Fourteenth Amendment. In their

Page 344 U. S. 454

application to the District Court, petitioners repeated once again those federal constitutional questions which had earlier been presented to the sentencing court and the Supreme Court of North Carolina, and which had also been repeated in their petition for certiorari filed in this Court.

In examining the application, the District Court Judge studied the records of the trial and appellate courts of North Carolina, including a transcript of the proceedings in the sentencing court. He concluded that the findings of the judge of the sentencing court on the matter of whether the jury had been properly selected were "supported by all the evidence," and that it was not shown that there was a "purposeful and systematic exclusion of negroes solely on account of race." He also found that the trial judge correctly determined that the confessions were voluntary and that the instruction concerning the confessions was adequate. In addition, the District Judge heard all evidence offered by the prosecution or defense.

The District Court Judge did advert to the circumstance that this Court had denied a petition for certiorari on the same questions, and he further observed that, to his mind, the procedural history of the case did not make it appear that petitioners were denied the substance of a fair trial. He added that petitioners "failed to substantiate the charges made." 99 F.Supp. at 216. The writ was vacated and the application dismissed. On the procedural history, the District Court refused to entertain the request. Sub nom. Daniels v. Crawford, 99 F.Supp. 208.

The records of the former proceedings thus determined the action of the United States District Court. The fact that further evidence was heard in two of the cases was to assure the judge that the prisoners were not held in custody in violation of the Constitution. In dismissing these petitions for habeas corpus, the District Court did not treat our denial of certiorari as conclusive.

Page 344 U. S. 455

In the Brown case, the last one decided, Judge Gilliam based his decision on this finding of fact:

"12. The facts found by the trial Judge, in respect to the composition of the grand jury, are supported by the evidence before him, and these findings and the conclusion thereon are adopted as findings in this respect, and the facts found by that Court in respect to the question of admission of statements made by the defendant are also supported by the evidence, and these findings and the conclusions thereon are likewise adopted."

98 F.Supp. 866, 870. The court cited from Stonebreaker v. Smyth, 163 F.2d 498, 499, in support of the above statement that this is the proper rule:

"'While action of the Virginia courts and the denial of certiorari by the Supreme Court were not binding on the principle of res judicata, they were matters entitled to respectful consideration by the court below, and, in the absence of some most unusual situation, they were sufficient reason for that court to deny a further writ of habeas corpus.'"

98 F.Supp. at 868.

In the Speller case, the pith of his conclusion is stated as follows:

"'The Court now concludes that the writ should be vacated and the petition dismissed upon the procedural history and the record in the State Courts, for the reason that habeas corpus proceeding is not available to the petitioner for the purpose of raising the identical question passed upon in those Courts.'"

99 F.Supp. 92, 95. To this was added the alternative ground of agreement with the conclusions of the sentencing court. See pp. 345 U. S. 452-453 supra.

Page 344 U. S. 456

In the Daniels case, decided the same day, the District Court left open the question of its power to reexamine, 99 F.Supp. at 213, and concluded on the record that the State had afforded a fair trial.

A. Effect of Denial of Certiorari. -- In cases such as these, a minority of this Court is of the opinion that there is no reason why a district court should not give consideration to the record of the prior certiorari in this Court and such weight to our denial as the District Court feels the record justifies. This is the view of the Court of Appeals. 192 F.2d 763, 768 et seq.; Speller v. Allen, 192 F.2d 477. This is, we think, the teaching of Ex parte Hawk, 321 U. S. 114, 321 U. S. 118, and White v. Ragen, 324 U. S. 760, 324 U. S. 764, 324 U. S. 765. We have frequently said that the denial of certiorari "imports no expression of opinion upon the merits of a case." House v. Mayo, 324 U. S. 42, 324 U. S. 48; Hamilton Brown Shoe Co. v. Wolf Bros. & Co., 240 U. S. 251, 240 U. S. 258. Cf. Ex parte Abernathy, 320 U. S. 219. When, on review of proceedings no res judicata or precedential effect follows, the result would be in accord with that expression, that statement is satisfied. But denial of certiorari marks final action on state criminal proceedings. In fields other than habeas corpus, with its unique opportunity for repetitious litigation, as demonstrated in Dorsey v. Gill, 80 U.S.App.D.C. 9, 148 F.2d 857, see 7 F.R.D. 313, the denial would make the issues res judicata. The minority thinks that, where a record distinctly presenting a substantial federal constitutional question disentangled from problems of procedure is brought here by certiorari and denied, courts dealing with the petitioner's future applications for habeas corpus on the same issues presented in earlier applications for writs of certiorari to this Court should have the power to take the denial into consideration in determining their action. We indicated as much in House v. Mayo, supra, p. 324 U. S. 48, and Ex parte Hawk, supra,

Page 344 U. S. 457

p. 321 U. S. 117, when we specifically approved a district court's refusal to reexamine ordinarily the questions passed upon by our denial. Permitting a district court to dismiss an application for habeas corpus on the strength of the prior record should be a procedural development to reduce abuse of the right to repeated hearings such as were permitted during the period when there was no review of the refusal of a habeas corpus application, Salinger v. Loisel, 265 U. S. 224. See 61 Harv.L.Rev. 657, 670. Compare the protection given by statute against abuse of habeas corpus in federal criminal proceedings, 28 U.S.C. § 2244. Since a federal district court has power to intervene, there is a guard against injustice through error. Darr v. Burford, supra, at 339 U. S. 214. It should be noted that the minority does not urge that the denial of certiorari here is res judicata of the issues presented. It is true, as is pointed out in the opinion of MR. JUSTICE FRANKFURTER, the records of applications for certiorari to review state criminal convictions, directly or collaterally, through habeas corpus or otherwise, are not always clear and full. Some records, however, are. It seems proper for a district court to give to these refusals of certiorari on adequate records the consideration the district court may conclude these refusals merit. This would be a matter of practice to keep pace with the statutory development of 1867 that expanded habeas corpus. We think it inconsistent to allow a district court to dismiss an application on its appraisal of the state trial record, as we understand those do who oppose our suggestion (see MR. JUSTICE FRANKFURTER's opinion, post, pp. 344 U. S. 500-501 and 344 U. S. 503-506), but to refuse to permit the district court to consider relevant our denial of certiorari.

B. Effect of State Court Adjudications. -- With the above statement of the position of the minority on the weight to be given our denial of certiorari, we turn to another question. The fact that no weight is to be given

Page 344 U. S. 458

by the Federal District Court to our denial of certiorari should not be taken as an indication that similar treatment is to be accorded to the orders of the state courts. So far as weight to be given the proceedings in the courts of the state is concerned, a United States district court, with its familiarity with state practice, is in a favorable position to recognize adequate state grounds in denials of relief by state courts without opinion. A fortiori, where the state action was based on an adequate state ground, no further, examination is required unless no state remedy for the deprivation of federal constitutional rights ever existed. Mooney v. Holohan, 294 U. S. 103; Ex parte Hawk, 321 U. S. 114. Furthermore, where there is material conflict of fact in the transcripts of evidence as to deprivation of constitutional rights, the District Court may properly depend upon the state's resolution of the issue. Malinski v. New York, 324 U. S. 401, 324 U. S. 404. In other circumstances, the state adjudication carries the weight that federal practice gives to the conclusion of a court of last resort of another jurisdiction on federal constitutional issues. It is not res judicata. [Footnote 6]

Furthermore, in view of the consideration that was given by the District Court to our denial of certiorari in these cases, should we return them to that court for reexamination in the light of this Court's ruling upon the effect to be given to the denial? We think not. From the findings of fact and the judgments of the District Court, we cannot see that such consideration as was given by that court to our denials of certiorari could have had any effect on its conclusions as to whether the respective defendants had been denied federal constitutional protection. [Footnote 7]

Page 344 U. S. 459

It is true, under the Court's ruling today, that the District Court in each of the three cases erroneously gave consideration to our denial of certiorari. It is also true that its rulings, set out above, show that, without that consideration, it found from its examination of the state records and new evidence presented that the conduct of the respective state proceedings was in full accord with due process. Such conclusions make immaterial the fact that the trial court gave consideration to our denial of certiorari.

The District Court and the Court of Appeals recognized the power of the District Court to reexamine federal constitutional issues even after trial and review by a state and refusal of certiorari in this Court. Darr v. Burford, 339 U.S. at 339 U. S. 214. The intimation to the contrary in the Speller case, 99 F.Supp. at 95, see p. 344 U. S. 453, supra, must be read as the Court's opinion after the hearing.

"In the review of judicial proceedings, the rule is settled that, if the decision below is correct, it must be affirmed although the lower court relied upon a wrong ground or gave a wrong reason. [Footnote 8]"

Certainly the consideration given by the District Court to our former refusals of certiorari on the issues presented cannot affect its determinations that there was no merit in any of the applications for habeas corpus. 98 F.Supp. 868, 870; 99 F.Supp.

Page 344 U. S. 460

97, 99; 99 F.Supp. at 216. Where it is made to appear affirmatively, as here, that the alleged error could not affect the result, such errors may be disregarded even in the review of criminal trials. [Footnote 9] Whether we affirm or reverse in these cases, therefore, does not depend upon the trial court's consideration of our denial of certiorari, but upon the soundness of its decisions upon the issues of alleged violation of federal procedural requirements or of petitioner's constitutional rights by the North Carolina proceedings. We now take up those problems.

III

. Right to Plenary Hearing

Petitioner alleges a procedural error in No. 32, Brown v. Allen. As we stated in the preceding subdivision, the writ of habeas corpus was refused on the entire record of the respective state and federal courts. 98 F.Supp. 866. It is petitioner's contention, however, that the District Court committed error when it took no evidence and heard no argument on the federal constitutional issues. He contends he is entitled to a plenary trial of his federal constitutional issues in the District Court. He argues that the Federal District Court, with jurisdiction of the particular habeas corpus, must exercise its judicial power to hear again the controversy notwithstanding prior determinations of substantially identical federal issues by the highest state court, either on direct review of the conviction or by post-conviction remedy, habeas corpus, coram nobis, delayed appeal, or otherwise. [Footnote 10]

Jurisdiction over applications for federal habeas corpus is controlled by statute. [Footnote 11] The Code directs a court entertaining

Page 344 U. S. 461

an application to award the writ. [Footnote 12] But an application is not "entertained" by a mere filing. Liberal as the courts are and should be as to practice in setting out claimed violations of constitutional rights, the applicant must meet the statutory test of alleging facts that entitle him to relief. [Footnote 13]

The word "entertain" presents difficulties. Its meaning may vary according to its surroundings. [Footnote 14] In § 2243 and § 2244, we think it means a federal district court's conclusion, after examination of the application with such accompanying papers as the court deems necessary, that a hearing on the merits legal or factual is proper. See Walker v. Johnston, 312 U. S. 275, 312 U. S. 283, First and Second; United States v. Baldi, 344 U. S. 561, 344 U. S. 568. Even after deciding to entertain the application, the District Court may determine later from the return or otherwise that the hearing is unnecessary.

It is clear by statutory enactment that a federal district court is not required to entertain an application for habeas corpus if it appears that

"the legality of such detention has been determined by a judge or court of the

Page 344 U. S. 462

United States on a prior application for a writ of habeas corpus [Footnote 15]"

The Reviser's notes to this section in House Report No. 308, 80th Cong., 1st Sess., say that no material change in existing practice is intended. Nothing else indicates that the purpose of Congress was to restrict by the adoption of the Code of 1948 the discretion of the District Court, if it had such discretion before, to entertain petitions from state prisoners which raised the same issues raised in the state courts. [Footnote 16]

Furthermore, in enacting 28 U.S.C. § 2254, dealing with persons in custody under state judgments, Congress made no reference to the power of a federal district court over federal habeas corpus for claimed wrongs previously passed upon by state courts. [Footnote 17] See discussion at p. 344 U. S. 447, supra. A federal judge, on a habeas corpus application, is required to "summarily hear and determine the facts, and dispose of the matter as law and justice require," 28 U.S.C. § 2243. This has long been the law. R.S. § 761,

Page 344 U. S. 463

old 28 U.S.C. § 461. It was under this general rule that this Court approved, in Salinger v. Loisel, 265 U. S. 224, 265 U. S. 231, the procedure that a federal judge might refuse a writ where application for one had been made to and refused by another federal judge and the second judge is of the opinion that in the light of the record a satisfactory conclusion has been reached. [Footnote 18] That principle is also applicable to state prisoners. Darr v. Burford, supra, 339 U. S. 214-215.

Applications to district courts on grounds determined adversely to the applicant by state courts should follow the same principle -- a refusal of the writ without more, if the court is satisfied, by the record, that the state process has given fair consideration to the issues and the offered evidence, and has resulted in a satisfactory conclusion. Where the record of the application affords an adequate opportunity to weigh the sufficiency of the allegations and the evidence, and no unusual circumstances calling for a hearing are presented, a repetition of the trial is not required. See p. 344 U. S. 457, supra. However, a trial may be had in the discretion of the federal

Page 344 U. S. 464

court or judge hearing the new application. A way is left open to redress violations of the Constitution. See p. 344 U. S. 447, supra. Moore v. Dempsey, 261 U. S. 86. Although they have the power, it is not necessary for federal courts to hold hearings on the merits, facts or law a second time when satisfied that federal constitutional rights have been protected. [Footnote 19] It is necessary to exercise jurisdiction to the extent of determining by examination of the record whether or not a hearing would serve the ends of justice.

Page 344 U. S. 465

Cf. 28 U.S.C. § 2244. See note 15 supra. As the state and federal courts have the same responsibilities to protect persons from violation of their constitutional rights, we conclude that a federal district court may decline, without a rehearing of the facts, to award a writ of habeas corpus to a state prisoner where the legality of such detention has been determined, on the facts presented, by the highest state court with jurisdiction, whether through affirmance of the judgment on appeal or denial of post-conviction remedies. See White v. Ragen, 324 U. S. 760, 324 U. S. 764.

As will presently appear, this case involves no extraordinary situation. Since the complete record was before the District Court, there was no need for rehearing or taking of further evidence. Treating the State's response to the application as a motion to dismiss, the court properly granted that motion. Discharge from conviction through habeas corpus is not an act of judicial clemency, but a protection against illegal custody.

The need for argument is a matter of judicial discretion. All issues were adequately presented. There was no abuse.

IV

. Disposition of Constitutional Issues

Next we direct our attention to the records which were before the District Court in order to review that court's conclusions that North Carolina accorded petitioners a fair adjudication of their federal questions. Questions of discrimination and admission of coerced confessions lie in the compass of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Have petitioners received hearings consonant with standards accepted by this Nation as adequate to justify their convictions? Hebert v. Louisiana, 272 U. S. 312; Adamson v. California, 332 U. S. 46.

Page 344 U. S. 466

First. We take up Brown v. Allen, No. 32, a case that turns more generally than the others on the constitutional issues.

Petitioner, a Negro, was indicted on September 4, 1950, and tried in the North Carolina courts on a charge of rape, and, having been found guilty, he was sentenced to death on September 15, 1950. In the sentencing court, petitioner made a timely motion to quash the bill of indictment, alleging discrimination against Negroes in the selection of grand jurors in contravention of the guarantees of the Fourteenth Amendment to the Federal Constitution. After the verdict, but before sentencing, petitioner, by a motion to set aside the verdict, sought to expand his constitutional attack on the selection of the grand jury to embrace the petit jury also. On appeal, the State Supreme Court treated, as we do, petitioner's motions as adequate to challenge the selection of both juries. 233 N.C. 202, 205-206, 63 S.E.2d 99. A second federal question was raised in the sentencing court when petitioner opposed admission into evidence of a confession which he alleged had been given involuntarily. Following sentencing, petitioner took an appeal to the State Supreme Court, and there presented for review the issues of jury discrimination and admission of a coerced confession. On this appeal, that court had before it both a brief on behalf of petitioner and a transcript of all those portions of the sentencing court proceedings which petitioner deemed relevant to a review of his federal questions. [Footnote 20] Dealing with the federal constitutional questions on their merits, the State Supreme Court

Page 344 U. S. 467

affirmed the conviction. State v. Brown, 233 N.C. 202, 63 S.E.2d 99.

A. Petitioner's charge of discrimination against Negroes in the selection of grand and petit jurors in violation of his constitutional rights attacks the operation of a method used by North Carolina in selecting juries in Forsyth County. The statutes detailing the method of selection are cited below. [Footnote 21] It is petitioner's contention that no more than one or two Negroes at a time have ever served on a Forsyth County grand jury, and that no more than five Negroes have ever previously served on a petit jury panel in the county. These contentions are the basis of the allegation that a system of discrimination is being employed against the Negro residents of the county. Petitioner offered no evidence to support his charge of limitation against the jury service of Negroes except the fact that fewer Negroes than whites, having regard for their proportion of the population, appeared on the jury panels.

The 1940 Census shows the following figures in respect to the population of Forsyth County.

Population Percent 21 Plus Percent

White 85,323 67.5 50,499 66.5

Negro 41,152 32.5 25,057 33.5

Total 126,475 100.0 75,556 100.0

According to the unchallenged testimony of the IBM Supervisor in the office of the Tax Supervisor of Forsyth County, a list of names is compiled from a tabulation of all the county property and poll taxpayers who make returns and is thereafter tendered to the County Commissioners for use in jury selection. All males

Page 344 U. S. 468

between 21 and 50 years of age are required to list themselves for poll tax, as well as to list their property. Gen.Stat. of North Carolina, Recompiled 1950, §§ 105-307, 105-341. In 1948, Winston Township, the most heavily populated in Forsyth County, had 7,659 white males and 2,752 colored males who listed polls. In the County of Forsyth outside Winston Township, 10,319 white males and 587 colored males listed polls. This indicates that Negroes number approximately 16% of the listed taxpayers. No figures appear in the record of the percentage of Negroes on the property tax lists.

In June, 1949, a list of approximately 40,000 names compiled from all the tax lists was handed to the Commissioners by the office of the Tax Supervisor. There is uncontradicted testimony by the IBM Supervisor that the list of jurors was prepared without regard to color, and that it constituted a complete compilation of the names of all resident, adult, listed taxpayers of Forsyth County. Both the grand and petit jury panels employed in this case were drawn from that pool. All the names on that list and no others (the list having been cut up into individual slips of uniform size bearing only one person's name) were put into a jury box. The selection from the jury box of names of persons subject to a summons to serve as grand jurors in a term of court is made by lot, as is the selection of panels of persons subject to summons for duty on petit juries. As the drawings were made by a small child and recorded in public, there is no claim or evidence of chicanery in the drawings.

Grand jurors in Forsyth County are selected in January and July for a six months' term. See c. 206, 1937 Pub. Local Laws, as amended by c. 264, 1947 Session Laws, as amended by c. 577, 1949 N.C. Session Laws. A panel of 60 names is drawn from the jury box each December and June by a child in the presence of the County Commissioners. At the June 5, 1950, meeting of the

Page 344 U. S. 469

Commissioners, 60 names were drawn. These 60 names constituted the panel of persons subject to summons for service on the grand jury which returned the indictment against petitioner. After such a drawing, a jury order is immediately prepared and given to the sheriff, who then summons all the parties he can find to appear for drawings for grand or petit jury service, as the case may be. All persons whose names were drawn were summoned if they could be found. Although there is no evidence as to how many persons were summoned by the sheriff, there is evidence to show that at least four or five Negroes were summoned. The final drawing for grand jury service is conducted in the court room in the presence of the Superior Court Judge. When the July, 1950, grand jury was selected from the panel of 60, the drawing was again made by a child. The names of all the persons summoned by the sheriff were put into a special section of the jury box, and the 18-man grand jury was then drawn. The name of one of the four or five Negroes summoned was drawn in the group of 18, and that Negro served on the grand jury. The remaining names are used for the petit jury panel.

When they are needed, petit jury panels in Forsyth County are drawn from the same jury box in groups of 44 persons. C. 206, Public-Laws, supra. After a drawing, the names are given to a deputy sheriff who then summons those persons on the list whom he can find. On the lists supplied to the deputies there are no indications as to whether the persons named are Negro or white. According to the statute, all summoned persons must report for jury service. At the selection of the petit jurors for the trial of this case, 8 of the 37 persons summoned on the panel were Negroes, as were 3 of a special venire of 20. Challenges, peremptory or for cause, eliminated all Negroes. No objections are made to the legality of these challenges. Uncontradicted evidence by a state witness

Page 344 U. S. 470

shows that, in the two years 1949 and 1950, the percentages of Negroes drawn on grand jury panels in Forsyth County varied between 7% and 10% of all persons drawn. In 1950, the percentage of Negroes drawn on petit jury panels varied between 9% and 17% of all persons drawn.

Prior to 1947, the jury list was composed of those taxpayers who had "paid all the taxes assessed against them for the preceding year." N.C.Gen.Stat.1943, § 9-1; cf. State v. Davis, 109 N.C. 780, 14 S.E. 55; State v. Dixon, 131 N.C. 808, 42 S.E. 944. This requirement has now been removed, as is shown by comparing the earlier statutes with the present wording of § 9-1 which was put into law in 1947. No change was made in the duty of all males between 21 and 50 to list their polls for assessment, nor of the requirement for the county to collect an annual poll tax. Gen.Stat. 105-307, 105-336, 105-339 and 105-341; cf. State v. Brown, 233 N.C. 202, 205, 63 S.E.2d 99. The pool of eligible jurors was thus enlarged. This enlargement and the practice of selecting jurors under the new statute worked a radical change in the racial proportions of drawings of jurors in Forsyth County. As is shown by the record in this Court of Brunson v. North Carolina, 333 U.S. 851, tried in North Carolina in October, 1946, Forsyth County, with its large Negro population, at that time had a jury pool of 10,622 white and 255 colored citizens. At that time, a sheriff, then in office for 10 years, testified that he had summoned only about twelve Negroes for jury service in that time. In 1949, the jury box was purged. All those listing taxes and eligible were listed for jury service, with the result in this case shown above.

Discriminations against a race by barring or limiting citizens of that race from participation in jury service are odious to our thought and our Constitution. This has long been accepted as the law. Brunson v. North Carolina, 333 U.S. 851; Cassell v. Texas, 339 U. S. 282, 339 U. S. 286-

Page 344 U. S. 471

287; State v. Peoples, 131 N.C. 784, 42 S.E. 814. Such discrimination is forbidden by statute, 18 U.S.C. § 243, and has been treated as a denial of equal protection under the Fourteenth Amendment to an accused, of the race against which such discrimination is directed. Neal v. Delaware, 103 U. S. 370. The discrimination forbidden is racial discrimination, however, directed to accomplish the result of eliminating or limiting the service of the proscribed race by statute or by practice. Smith v. Texas, 311 U. S. 128; Patton v. Mississippi, 332 U. S. 463. It was explained in 1880 by this Court, when composed of justices familiar with the evils the Amendment sought to remedy, as permitting a state to

"confine the selection (of jurors) to males, to freeholders, to citizens, to persons within certain ages or to persons having educational qualifications."

Strauder v. West Virginia, 100 U. S. 303, 100 U. S. 310. Cf. Franklin v. South Carolina, 218 U. S. 161, 218 U. S. 167-168; Fay v. New York, 332 U. S. 261, 332 U. S. 268-272. While discriminations worked by consistent exclusion have been rigorously dealt with, Neal v. Delaware, 103 U. S. 370; Carter v. Texas, 177 U. S. 442; Norris v. Alabama, 294 U. S. 587; Pierre v. Louisiana, 306 U. S. 354; Hill v. Texas, 316 U. S. 400; Patton v. Mississippi, 332 U. S. 463, variations in proportions of Negroes and whites on jury lists from racial proportions in the population have not been considered violative of the Constitution where they are explained and not long continued. Akins v. Texas, 325 U. S. 398, 325 U. S. 403. Of course, token summoning of Negroes for jury service does not comply with equal protection, Smith v. Texas, 311 U. S. 128. Nor can a race be proscribed as incompetent for service, Hill v. Texas, 316 U. S. 400.

Responsible as this Court is under the Constitution to redress the jury packing which Bentham properly characterized as a sinister species of art, Bentham, Elements of the Art of Packing as Applied to Special Juries, p. 6,

Page 344 U. S. 472

it should not condemn good faith efforts to secure competent juries merely because of varying racial proportions.

The Supreme Court of North Carolina concluded that objection to the lists based on the racial composition of the tax lists was "far-fetched," and that it was not a racial discrimination when a list which included only taxpayers was used. State v. Brown, 233 N.C. 202, 63 S.E.2d 99. [Footnote 22]

Page 344 U. S. 473

We recognize the fact that these lists have a higher proportion of white citizens than of colored, doubtless due to inequality of educational and economic opportunities. While those who chose the names for the jury lists might have included names other than taxpayers, such action was not mandatory under state law. State v. Brown, 233 N.C. 202, 205, 63 S.E.2d 99. As only property and poll tax lists were used, see p. 344 U. S. 467, supra, this case presents a jury selection as though limited by statute to all property owners and voters. We assume only reasonable tax levies were used. It is to be noted all males between 21 and 50 must list both property, however modest in amount, and polls, see pp. 344 U. S. 467-468, supra, so that, in that sense, there is no exclusion on racial grounds. The name of every property owner and every voter is in the jury box. We recognize, too, that we are now reviewing a constitutional objection to a state court conviction, and we may not act to alter practices of a state which are short of a denial of equal protection or due process in the selection of juries. [Footnote 23] States should decide for themselves the quality of their juries as best fits their situation, so long as the classifications have relation to the efficiency of the jurors and are equally administered.

Page 344 U. S. 474

Our duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty. Short of an annual census or required population registration, these tax lists offer the most comprehensive source of available names. We do not think a use, nondiscriminatory as to race, of the tax lists violates the Fourteenth Amendment, nor can we conclude on the evidence adduced that the results of the use require a conclusion of unconstitutionality. Assuming that, before the Brunson case, 333 U.S. 851, there were unconstitutional exclusions of Negroes in this North Carolina county, the present record does not show such exclusions in this case. The evidence is to the contrary. The District Court correctly determined this issue as to the grand jury. As both the grand and petit juries in this case were drawn from the same filling of the jury box, the reasoning of the District Court is applicable to the petit jury here involved.

B. Petitioner contends further that his conviction was procured in violation of the Fourteenth Amendment of the Federal Constitution because the trial judge permitted the jury to rely on a confession claimed by petitioner to be coerced in determining his guilt. At the trial, petitioner registered timely objection to use by the state of his purported confessions. The objection having been made, the trial judge immediately excused the jury and ordered a preliminary examination to determine whether or not the statements were voluntary. It was in this preliminary hearing, in which the petitioner and two police officers testified, that the admitted facts were first developed upon which petitioner rests this phase of his case. After hearing the testimony, the trial judge found that the petitioner's statements were freely and voluntarily given, and declared them to be competent.

Page 344 U. S. 475

Upon recall of the jury, the state introduced the statements in evidence, objections again being noted. Although the petitioner chose not to take the stand in the trial of his cause, his counsel, while cross-examining the officers who had taken the challenged statements from the petitioner, developed again for the jury all the facts upon which petitioner now relies.

A conviction by a trial court which has admitted coerced confessions deprives a defendant of liberty without due process of law. Brown v. Mississippi, 297 U. S. 278, 297 U. S. 280, 297 U. S. 286-287. When the facts admitted by the state show coercion, Ashcraft v. Tennessee, 327 U. S. 274, a conviction will be set aside as violative of due process. Chambers v. Florida, 309 U. S. 227. This is true even though the evidence apart from the confessions might have been sufficient to sustain the jury's verdict. Malinski v. New York, 324 U. S. 401; see Lyons v. Oklahoma, 322 U. S. 596, 322 U. S. 597.

Therefore, it does not matter in this case whether or not the jury was acquainted with all the facts laid before the judge upon which petitioner now relies, or whether the jury heard or did not hear the petitioner testify. Neither does it matter that there possibly is evidence in the record independent of the confessions which could sustain the verdict. The mere admission of the confessions by the trial judge constituted a use of them by the state, and if the confessions were improperly obtained, such a use constitutes a denial of due process of law as guaranteed by the Fourteenth Amendment. In determining whether a confession has been used by the state in violation of the constitutional rights of a petitioner, a United States court appraises the alleged abuses by the facts as shown at the hearing or admitted on the record.

Petitioner's contention that he had a constitutional right to have his statements excluded from the record rests upon these admitted facts. He is an illiterate.

Page 344 U. S. 476

He was held after arrest for five days before being charged with the crime for which he was convicted. He was not given a preliminary hearing until 18 days after his arrest. No counsel was provided for him in the period of his detention. The alleged confessions were taken prior to the preliminary hearing and appointment of counsel. There is no record of physical coercion, or of that less painful duress generated by prolonged questioning. There is evidence that petitioner was told he could remain silent, and that any statement he might make could be used against him. He chose to speak, and he made that choice without a promise of reward or immunity having been extended. He was never denied the right to counsel of his choice, and was never without competent counsel from the inception of judicial proceedings. If the delay in the arraignment of petitioner was greater than that which might be tolerated in a federal criminal proceeding, due process was not violated. Under the leadership of this Court, a rule has been adopted for federal courts that denies admission to confessions obtained before prompt arraignment notwithstanding their voluntary character. McNabb v. United States, 318 U. S. 332; Upshaw v. United States, 335 U. S. 410. Cf. Allen v. United States, 91 U.S.App.D.C. 197, 202 F.2d 329. This experiment has been made in an attempt to abolish the opportunities for coercion which prolonged detention without a hearing is said to enhance. But the federal rule does not arise from constitutional sources. The Court has repeatedly refused to convert this rule of evidence for federal courts into a constitutional limitation on the states. Gallegos v. Nebraska, 342 U. S. 55, 342 U. S. 63-65. Mere detention and police examination in private of one in official state custody do not render involuntary the statements or confessions made by the person so detained. Petitioner's constitutional rights were not infringed by the refusal of the trial court to exclude his confessions as evidence.

Page 344 U. S. 477

Second. We examine the constitutional issues in No. 22, Speller v. Allen.

Petitioner, a Negro, was indicted and in August, 1949, tried in the Superior Court of Bertie County, North Carolina, upon a charge of rape. He has been convicted and sentenced to death on this charge three times, the first two convictions having been set aside on appeal by the Supreme Court of North Carolina on the ground of discriminatory selection of jurors. State v. Speller, 229 N.C. 67, 47 S.E.2d 537; 230 N.C. 345, 53 S.E.2d 294. At this, his third trial, August Term 1949, petitioner made a timely motion to set aside the array of special veniremen called from Vance County, alleging discrimination against Negroes "solely and wholly on account of their race and/or color" in the selection of the veniremen in contravention of the guarantees of the Fourteenth Amendment of the Federal Constitution. (Transcript of Record, State v. Speller, August Term 1949, Bertie N.C. Superior Court at 12, Item 91, Clerks Record, Supreme Court of the United States.) Evidence was taken at length on this issue, although some evidence deemed material by petitioner was excluded. In particular, the trial judge, on the ground that it would be immaterial, infra, p. 344 U. S. 480, refused to permit petitioner to produce evidence as to all the scrolls in the jury box for the purpose of showing the existence of dots on the scrolls bearing the names of Negroes. The jury box was produced in court, opened, and counsel for defendant permitted to examine the scrolls. The trial judge made findings relating to the manner of selecting the veniremen, determining that no discrimination was practiced, and on these findings denied the motion to set aside the array. Petitioner was thereafter convicted for the third time, and sentenced to death.

On appeal, petitioner asserted that his conviction violated the Equal Protection Clause of the Fourteenth

Page 344 U. S. 478

Amendment, assigning the denial of his motion to set aside the array as error, and also assigning as error the trial court's ruling on his request for permission to examine into all the scrolls in the jury box. The Supreme Court of North Carolina had before it on that appeal as part of the record a mimeographed, narrative-style transcript of the entire proceedings below; petitioner makes no objection to the absence of any relevant evidence on that appeal, except that relating to all the scrolls which had been excluded by the trial court. Upholding the rulings of the trial court, the Supreme Court of North Carolina affirmed the conviction, 231 N.C. 549, 57 S.E.2d 759.

Petitioner filed this petition for a writ of habeas corpus in the Federal District Court for the Eastern District of North Carolina after we denied certiorari on direct review of the state proceedings. The petition summarily recited the prior history of the litigation, and raised again the same federal question which had been passed upon by both North Carolina courts, and which had been offered to this Court on petition for certiorari, racial discrimination. The District Court heard all additional evidence the petitioner offered. This was in its discretion. Moore v. Dempsey, 261 U. S. 86; Darr v. Burford, 339 U.S. at 339 U. S. 214, cases which establish the power of federal district courts to protect the constitutional rights of state prisoners after the exhaustion of state remedies. It better enabled that court to determine whether any violation of the Fourteenth Amendment occurred.

Petitioner's charge of discrimination against Negroes in the selection of petit jurors in violation of his constitutional rights attacks the operation of the system used by the North Carolina authorities to select juries in Vance County, from which county a special venire was obtained to try petitioner. The charge rests on petitioner's contentions (1) that no Negro within recent

Page 344 U. S. 479

years had served on a jury in Vance County before this case, (2) that no Negro had been summoned to serve on a jury before this case, and (3) that the jury box in this case was so heavily loaded with names of white persons that the drawing could not fairly reflect a cross-section of those persons in the community qualified for jury service. Petitioner offered evidence to support each of these three contentions.

The evidence establishes the correctness of contentions (1) and (2). They are inapplicable to this case, however, under the circumstances of the filling of this particular jury box. As is pointed out in Brown v. Allen, supra, at page 344 U. S. 470, North Carolina, in 1947, enlarged its pool of citizens eligible for jury service. General Statutes, North Carolina, § 9-1. In Vance County, where the special venire for Speller's trial was drawn, the names of substantial numbers of Negroes appeared thereafter in the jury box. 145 Negroes out of a total of 2,126 names were in this jury box. As this venire was the first drawing of jurors from the box after its purge in July, 1949, following the new statute and Brunson v. North Carolina, 333 U.S. 851, decided here, March 15, 1948, the long history of alleged discrimination against its Negro citizens by Vance County jury commissioners is not decisive of discrimination in the present case. Former errors cannot invalidate future trials. Our problem is whether this venire was drawn from a jury box, invalidly filled as to Speller because names were selected by discriminating against Negroes "solely on account of race and/or color." It is this particular box that is decisive, cf. Cassel v. Texas, 339 U. S. 282, 339 U. S. 290 and 339 U. S. 295. Past practice is evidence of past attitude of mind. That attitude is shown to no longer control the action of officials by the present fact of colored citizens' names in the jury box.

Page 344 U. S. 480

It is suggested that the record shows that the names of colored persons in the jury box were marked with a dot or period on the scroll. This could be used for unlawful disposition of such scrolls when drawn. Such a scheme would be useless in the circumstances of this case. The record shows that the defendant and his counsel were present when the venire was drawn by a child, aged 5. All of the names drawn were given to the sheriff, and summonses were issued. As a matter of fact, the special venire contained the names of seven Negroes. Four appeared. None sat as jurors. Therefore, the assertion as to the dots, even if true, means no more than that some unknown person desired to interfere with the fair drawing of juries in Vance County. The trial court found against petitioner on this question. The District Court pointed out its immateriality. 99 F.Supp. at 97.

This box was filled by names selected by the clerk of the jury commissioners, and corrected by the commissioners. The names put in were substantially those selected by the clerk, who chose them from those on the tax lists who had "the most property." The clerk testified no racial discrimination entered into his selection. Since the effect of this possible objection to the selection of jurors on an economic basis was not raised or developed at the trial, on appeal to the State Supreme Court, on the former certiorari to this Court, or in the petition or brief on the present certiorari to this Court, it is not open to consideration here. [Footnote 24] Such an important

Page 344 U. S. 481

national asset as state autonomy in local law enforcement must not be eroded through indefinite charges of unconstitutional actions.

As we have stated above in discussing the Brown case, at page 344 U. S. 473 et seq., supra, our conclusion that selection of prospective jurors may be made from such tax lists as those required under North Carolina statutes without violation of the Federal Constitution, this point needs no further elaboration. The fact that causes further consideration in this case of the selection of prospective jurors is that the tax lists show 8,233 individual taxpayers in Vance County, of whom 3,136, or 38%, are Negroes. In the jury box involved, selected from that list, there were 2,126 names. Of that number 145 were Negroes, 7%. This disparity between the races would not be accepted by this Court solely on the evidence of the clerk of the commissioners that he selected names of citizens of "good moral character and qualified to serve as jurors, and who had paid their taxes." [Footnote 25] It would not be assumed that, in Vance County, there is not a much larger percentage of Negroes with qualifications of jurymen. [Footnote 26] The action of the commissioners' clerk, however, in selecting those with "the most property," an economic basis not attacked here, might well account for the few Negroes appearing in the box. Evidence of discrimination based solely on race on the selection actually made is lacking.

The trial and district courts, after hearing witnesses, found no racial discrimination in the selection of the prospective jurors. The conviction was upheld as nondiscriminatory

Page 344 U. S. 482

by the State Supreme Court, which had once acted to reverse a conviction of this defendant by a jury deemed tainted with racial discrimination, State v. Speller, 229 N.C. 67, 68, 47 S.E.2d 537, and again to reverse a conviction when adequate time for investigation of discrimination had not been given. State v. Speller, 230 N.C. 345, 53 S.E.2d 294. It would require a conviction, by this Court, of violation of equal protection through racial discrimination to set aside this trial. Our delicate and serious responsibility of compelling state conformity to the Constitution by overturning state criminal convictions should not be exercised without clear evidence of violation.

Disregarding, as we think we should, the clerk's unchallenged selections based on taxable property, there is no evidence of racial discrimination. Negroes names now appear in the jury box. If the requirement of comparative wealth is eliminated, and the statutory standards employed, the number would increase to the equality justified by their moral and educational qualification for jury service as compared with the white race. We do not think the small number, by comparison, of Negro names in this one jury box, is, in itself, enough to establish racial discrimination.

Third. We have the problems presented by No. 20, Daniels v. Allen. The two petitioners, Negroes, were indicted and convicted in the North Carolina courts on a charge of murder. Their trial in the Superior Court of Pitt County resulted in a verdict of guilty, and each petitioner was thereafter sentenced to death. There is no issue over guilt under the evidence introduced. In addition to the objections stated above at page 344 U. S. 453 -- discrimination in jury lists, coerced confessions and refusal to hear on the merits -- there is also objection here to the procedure for determination of the voluntariness of the confessions.

Page 344 U. S. 483

As the failure to serve the statement of the case on appeal seems to us decisive, we do not discuss in detail the other constitutional issues tendered, and only point out that they were resolved against the petitioners by the sentencing state court and the Federal District Court after full hearing of the evidence offered. It is also to be noted that the Supreme Court of North Carolina refused certiorari to review the alleged invasions of constitutional rights by the sentencing court and two efforts of petitioners to secure an order permitting them to apply for coram nobis. [Footnote 27] The writ of coram nobis is available in North Carolina to test constitutional rights extraneous of the record. In re Taylor, 230 N.C. 566, 53 S.E.2d 857. In the first coram nobis case, the Court said, speaking of its refusal of certiorari:

"Counsel for petitioners were advised, however, that petition might be filed here for permission to apply to the Superior Court of Pitt County, where the cause was tried, for a writ of error coram nobis, through which, if allowed there, they might be heard on the main features on which they asked for relief, which included matters dehors the record, and that appeal would lie to the Supreme Court in the event of its unfavorable action. S. v. Daniels, supra; In re Taylor (230 N.C.), supra; In re Taylor (229 N.C.), supra."

"The defendants now file a petition for permission to apply to the Superior Court for such a writ. Their petition does not make a prima facie showing of substance which is necessary to bring themselves within the purview of the writ. [Footnote 28]"

231 N.C. 341, 56 S.E.2d 646, 647.

Page 344 U. S. 484

After the refusal of the first coram nobis petition, the Supreme Court of North Carolina dismissed petitioner's attempted appeal on the record proper on the ground that no case on appeal had been filed. 231 N.C. 509, 57 S.E.2d 653; Rule 17, 4 N.C.Gen.Stat., App.; id., Vol. 1, § 1-282. Such action accords with well settled practice in that state. "Rules requiring service to be made of case on appeal . . . are mandatory." 231 N.C. 17, 24, 56 S.E.2d 2, 7. They are applied alike to all appellants. [Footnote 29] The first application for certiorari to this Court raised federal constitutional objections to the judgments of the Supreme Court of North Carolina on both direct and collateral attack by certiorari and coram nobis on the judgment of the trial court. 339 U.S. 954.

The failure to perfect the appeal came in this way. Upon the coming in of the verdict on June 6, 1949, the petitioners several times moved for a new trial, in each motion reiterating one or the other of the aforementioned federal questions. These motions were denied, and the trial court pronounced its sentence. Petitioners excepted to the judgments and noted appeals therefrom to the State Supreme Court. In response to petitioners' notice, the trial judge granted petitioners 60 days in which to make and serve a statement of the case on appeal. When counsel failed to serve this statement until 61 days had expired, the trial judge struck the appeal as out of

Page 344 U. S. 485

time. This action precluded an appeal as of right to the State Supreme Court.

This situation confronts us. North Carolina furnished a criminal court for the trial of those charged with crime. Petitioners at all times had counsel, chosen by themselves and recognized by North Carolina as competent to conduct the defense. In that court, all petitioners' objections and proposals whether of jury discrimination, admission of confessions, instructions or otherwise were heard and decided against petitioners. The state furnished an adequate and easily complied-with method of appeal. This included a means to serve the statement of the case on appeal in the absence of the prosecutor from his office. State v. Daniels, 231 N.C. 17, 24, 56 S.E.2d 2. Yet petitioners' appeal was not taken and the State of North Carolina, although the full trial record and statement on appeal were before it, refused to consider the appeal on its merits. [Footnote 30]

The writ of habeas corpus in federal courts is not authorized for state prisoners at the discretion of the federal court. It is only authorized when a state prisoner is in custody in violation of the Constitution of the United States. 28 U.S.C. § 2241. That fact is not to be tested by the use of habeas corpus in lieu of an appeal. [Footnote 31] To allow habeas corpus in such circumstances would subvert the entire system of state criminal justice and destroy state energy in the detection and punishment of crime.

Of course, federal habeas corpus is allowed where time has expired without appeal when the prisoner is detained without opportunity to appeal because of lack of counsel,

Page 344 U. S. 486

incapacity, or some interference by officials. [Footnote 32] Also, this Court will review state habeas corpus proceedings even though no appeal was taken, if the state treated habeas corpus as permissible. [Footnote 33] Federal habeas corpus is available following our refusal to review such state habeas corpus proceedings. [Footnote 34] Failure to appeal is much like a failure to raise a known and existing question of unconstitutional proceeding or action prior to conviction or commitment. Such failure, of course, bars subsequent objection to conviction on those grounds. [Footnote 35]

North Carolina has applied its law in refusing this out-of-time review. [Footnote 36] This Court applies its jurisdictional statute in the same manner. Preston v. Texas, 343 U.S. 917; cf. Paonessa v. New York, 344 U.S. 860, certiorari denied October 20, 1952, because "application therefor was not made within the time provided by law." We cannot say that North Carolina's action in refusing review after failure to perfect the case on appeal violates the Federal Constitution. A period of limitation accords with our conception of proper procedure.

Finally, federal courts may not grant habeas corpus for those convicted by the state except pursuant to § 2254. Á 32 and S. 487Á See note 17 supra. See also note 2 supra. We have interpreted § 2254 as not requiring repetitious applications to state courts for collateral relief, p. 32 and S. 447|>447, supra, but clearly the state's procedure for relief must be employed in order to avoid the use of federal habeas corpus as a matter of procedural routine to review state criminal rulings. A failure to use a state's available remedy, in the absence of some interference or incapacity, such as is referred to just above at notes 32 and | 32 and S. 443fn33|>33, bars federal habeas corpus. The statute requires that the applicant exhaust available state remedies. To show that the time has passed for appeal is not enough to empower the Federal District Court to issue the writ. The judgment must be affirmed.

We have spoken in this opinion of the change of practice in North Carolina in the selection of jurors. Our conclusions have been reached without regard to earlier incidents not connected with these juries or trials that suggest past discriminations. Since the states are the real guardians of peace and order within their boundaries, it is hoped that our consideration of these records will tend to clarify the requirements of the Federal Constitution in the selection of juries. Our Constitution requires that jurors be selected without inclusion or exclusion because of race. There must be neither limitation nor representation for color. By that practice, harmony has an opportunity to maintain essential discipline, without that objectionable domination which is so inconsistent with our constitutional democracy.

The judgments are affirmed.

MR. JUSTICE JACKSON concurs in this result for the reasons stated in a separate opinion. [See post, pp. 344 U. S. 532, 344 U. S. 548.]

MR. JUSTICE BURTON and MR. JUSTICE CLARK adhere to their position as stated in Darr v. Burford, 339 U. S. 200, at 339 U. S. 219. They believe that the nature of the proceeding

Page 344 U. S. 488

upon a petition for certiorari is such that, when the reasons for a denial of certiorari are not stated, the denial should be disregarded in passing upon a subsequent application for relief, except to note that this source of possible relief has been exhausted.

They join in the judgment of the Court in these cases, and they concur in the opinion of the Court except insofar as it may contain, in Part II, Subdivision A (pp. 344 U. S. 456-457), or elsewhere, any indication that, although the reasons for a denial of certiorari be not stated, those reasons nevertheless may be inferred from the record. They also recognize the propriety of the considerations to which MR. JUSTICE FRANKFURTER invites the attention of a federal court when confronted with a petition for a writ of habeas corpus under the circumstances stated.

* Together with No. 22, Speller v. Allen, Warden, argued April 29, 1952, reargued October 13, 1952, and No. 20, Daniel et al. v. Allen, Warden, argued April 28-29, 1952, reargued October 13, 1952, also on certiorari to the same court.

[Footnote 1]

Brown v. State of North Carolina, 341 U.S. 943; Speller v. State of North Carolina, 340 U.S. 835; Daniels v. State of North Carolina, 339 U.S. 954.

[Footnote 2]

We reach this conclusion after consideration of the second paragraph of 28 U.S.C. § 2254.

"An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented."

[Footnote 3]

Outside the cases, it has been strongly urged that the purpose of subparagraph 2 was to eliminate the right of a federal district court to entertain an application so long as any state remedy remained available. In an article by Judge Parker, Chairman of the Judicial Conference Committee which drafted the new Habeas Corpus Act, Limiting the Abuse of Habeas Corpus, 8 F.R.D. 171, 176 (1949), this construction of § 2254 is presented:

"The effect of this last provision is to eliminate, for all practical purposes, the right to apply to the lower federal courts for habeas corpus in all states in which successive applications may be made for habeas corpus to the state courts; for, in all such states, the applicant has the right, notwithstanding the denial of prior applications, to apply again to the state courts for habeas corpus and to have action upon such later application reviewed by the Supreme Court of the United States on application for certiorari."

We do not so construe § 2254. We do not believe Congress intended to require repetitious applications to state courts. § 2254 originally read as follows:

"An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court or authority of a State officer shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is no adequate remedy available in such courts or that such courts have denied him a fair adjudication of the legality of his detention under the Constitution and laws of the United States."

§ 2254 of H.R. 3214, 80th Cong., 2d Sess.

[Footnote 4]

The courts below have divided since the Darr case on the effect to be accorded a denial of certiorari by this Court.

NO SUBSTANTIVE EFFECT

Goodman v. Lainson, 182 F.2d 814

McGarty v. O'Brien, 188 F.2d 151

Soulia v. O'Brien, 188 F.2d 233

Odell v. Hudspeth, 189 F.2d 300

Ekberg v. McGee, 191 F.2d 625 (also reported at 9 Cir., 194 F.2d 178)

Sampsell v. California, 191 F.2d 721

Melanson v. O'Brien, 191 F.2d 963

Bacom v. Sullivan, 194 F.2d 166

Almeida v. Baldi, 195 F.2d 815

Hawk v. Hann, D.C., 103 F.Supp. 138

Ex parte Wells, 99 F.Supp. 320

Fouquette v. Bernard, 198 F.2d 96

Master v. Baldi, 198 F.2d 113

Daverse v. Hohn, 198 F.2d 934

DISCRETIONARY EFFECT

Anderson v. Eidson, 191 F.2d 193

Holland v. Eidson, 90 F.Supp. 314

Pennsylvania ex rel. Gibbs v. Ashe, 93 F.Supp. 542

Soulia v. O'Brien, 94 F.Supp. 764

McGarty v. O'Brien, 96 F.Supp. 704

Goodwin v. Smyth, 181 F.2d 498

Adkins v. Smyth, 188 F.2d 452

Byars v. Swenson, 192 F.2d 739

Frazier v. Ellis, 196 F.2d 231

Lyle v. Eidson, 197 F.2d 327

Skinner v. Robinson, 105 F.Supp. 153

[Footnote 5]

The participation of a district court through habeas corpus proceedings in determining whether state prisoners have been granted a fair trial is a sensitive area in our federated system. Speller v. Crawford, 99 F.Supp. 92, 96; Smith v. Baldi, 192 F.2d 540, 543.

In September, 1952, at its fourth annual meeting, the Conference of Chief Justices adopted a resolution questioning the habeas corpus principles "enunciated in certain recent federal decisions." The resolution expressed the consensus of the Chief Justices that "a final judgment of a state's highest court [should] be subject to review or reversal only by the Supreme Court of the United States." Concern was noted that the hearing of the successive petitions by federal district courts would tend toward a dilution of the sense of judicial responsibility, a delay in the enforcement of criminal justice, and an impairment of confidence in state judicial institutions. 25 State Government, pp. 249-250.

[Footnote 6]

As the burden of overturning the conviction rests on the applicant, he should allege specifically, in cases where material, the uncontradicted evidentiary facts appearing in the record upon which is based his allegation of denial of constitutional rights.

[Footnote 7]

The applicable Rule 61 of the Fed.Rules Civ.Proc. is as follows:

"No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties."

[Footnote 8]

Helvering v. Gowran, 302 U. S. 238, 302 U. S. 245. See Riley Co. v. Commissioner, 311 U. S. 55, 311 U. S. 59.

[Footnote 9]

Rule 52, Fed.Rules Crim.Proc.; Berger v. United States, 295 U. S. 78, 295 U. S. 81-84. See Kotteakos v. United States, 328 U. S. 750, 328 U. S. 763; Bihn v. United States, 328 U. S. 633.

[Footnote 10]

See note 15 infra.

[Footnote 11]

28 U.S.C. § 2241(a).

[Footnote 12]

28 U.S.C. § 2243:

"A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto. . . ."

"* * * *"

"Unless the application for the writ and the return present only issues of law the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained."

"* * * *"

"The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require."

[Footnote 13]

28 U.S.C. § 2242. Darr v. Burford, supra, p. 339 U. S. 203. See § 2243, supra.

[Footnote 14]

See Denholm & McKay Co. v. Commissioner, 132 F.2d 243, 247, and cases cited.

[Footnote 15]

28 U.S.C. § 2244:

"No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States, or of any State, if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus and the petition presents no new ground not theretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry. See S.Rep.No.1559, 80th Cong., 2d Sess., Amendment No. 45."

[Footnote 16]

See H.R. 4232, 79th Cong., 1st Sess.; H.R. 3214, 80th Cong., 1st Sess.; H.R. 3214, 80th Cong., 2d Sess.; Report of the Judicial Conference of Senior Circuit Judges, 1947, pp. 17-20.

[Footnote 17]

28 U.S.C. § 2254:

"An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner."

[Footnote 18]

The reason for the change in procedure was stated:

"But it does not follow that a refusal to discharge on one application is without bearing or weight when a later application is being considered. In early times, when a refusal to discharge was not open to appellate review, courts and judges were accustomed to exercise an independent judgment on each successive application, regardless of the number. But when a right to an appellate review was given, the reason for that practice ceased, and the practice came to be materially changed -- just as, when a right to a comprehensive review in criminal cases was given, the scope of inquiry deemed admissible on habeas corpus came to be relatively narrowed."

Id. at 265 U. S. 230-231.

[Footnote 19]

When an application for habeas corpus by a state prisoner is filed in a federal district court after the exhaustion of state remedies, including a certiorari to this Court, it rests on a record that was made in the applicant's effort to secure relief through the state from imprisonment, allegedly in violation of federal constitutional rights. The District Court, a court convenient to the place of litigation, 28 U.S.C. § 2241(b), after determining grounds for relief are stated in the petition, "may require a showing of the record and action on prior applications." Darr v. Burford, supra, at 339 U. S. 215; Salinger v. Loisel, 265 U. S. 224, 265 U. S. 232; cf. Ex parte Elmer Davis, 318 U. S. 412. Original records in state courts are returned by this Court. (E.g., see, in Daniels v. North Carolina, 339 U.S. 954, the order of THE CHIEF JUSTICE of the Supreme Court of the United States, dated May 12, 1950, as the same remains upon the files of this Court, directing, on the application of petitioner's counsel, the return of the original record from the files of this Court to the Supreme Court of North Carolina.) Copies of petitions for certiorari are normally available to petitioners. See 28 U.S.C. § 2250. Other sections strengthen the ability of the court hearing the application fully to advise itself concerning prior hearings of the same issues for the applicant. 28 U.S.C. § 2245, allows a certificate as to certain facts; § 2246 provides for depositions and affidavits. Section 2247 makes liberal provision for the use of records of former proceedings in evidence. See also §§ 2248-2254, inclusive. Of course, the other usual methods of completing the record in civil cases, such as subpoena duces tecum and discovery, are generally available to the applicant and respondent. If useful records of prior litigation are difficult to secure or unobtainable, the District Court may find it necessary or desirable to hold limited hearings to supply them where the allegations of the application for habeas corpus state adequate grounds for relief.

[Footnote 20]

Rule 19 of the Rules of the Supreme Court of North Carolina permits an appellant to bring up on appeal as much of the record as is necessary "to an understanding of the exceptions relied on." Petitioner does not contend that the record before the Supreme Court of North Carolina was inadequate fully to support an adjudication on his federal questions.

[Footnote 21]

See Chapter 206, 1937 Public Local Laws, as amended by Chapter 264, 1947 Session Laws, and as amended by Chapter 577, 1949 N.C. Session Laws. And Gen.Stats. of N.C.1943, c. 9, Arts. 1-4, as amended.

[Footnote 22]

In addition to North Carolina, the following states are among those which also base the composition of jury lists on tax lists:

Colo.Stat.Ann.1951, c. 95, § 10 (may use tax list);

Ga.Code Ann.1951, § 59.106 (jury commissioners "shall select from the books of the tax receiver");

Kan.Gen.Stat.1949, c. 43 ("select from those assessed on the assessment roll of the preceding year");

Ky.Rev.Stat.1948, § 29.070 (last returned tax commissioner's book);

Md.Ann.Code 1939, Art. 51, § 6 (from a "complete list of the male taxable inhabitants . . . whose names appear on the tax books");

Mich.Stat.Ann.1938 and 1951, §§ 27.246, 27.247 (select from "persons assessed on the assessment roll"; provides for additional names);

Mont.Rev.Code 1947, Tit. 93, § 1402 ("select, from the last assessment roll of the county");

McKinney's N.Y.Consol.Laws, Judiciary Law, § 502 (1948) (own real property $150, or personal property $250, or married to someone who does; jurors in counties outside of cities having a population of one million or more). McKinney's N.Y.Laws, Judiciary Law, § 596;

N.D.Rev.Code 1943, § 27-0906 ("The names on the assessors' lists . . . for the preceding year shall be the basis for making" an apportionment of the 200 names per county to the various cities and towns within the county);

Okla.Stat.Ann., 1951, Tit. 38, § 18 (jury lists shall be selected from the names on the tax rolls of the county);

Ore.Comp.Laws Ann., 1940, § 14-201 (make a jury list, "as far as it may be able to ascertain the same from the latest tax roll and/or registration books of the county");

Utah Code Ann.1943, § 48-0-17 ("select from the names of the legal voters on the assessment roll . . .");

Remington's Wash.Rev.Stat.1932, § 94 (no person is competent to serve as a juror unless he be (1) an elector and taxpayer of the state);

Wyo.Comp.Stat.1945, § 12-101(4) (a person is competent if he be (4) assessed on the last assessment roll of the county).

See also Morse, A Survey of the Grand Jury System, part 2, 10 Ore.L.Rev. 217, 227 (1931). The answers to the questionnaires sent out by Mr. Morse indicated that in twenty-two states the names for the grand jury lists were selected from county tax rolls or assessment rolls.

[Footnote 23]

Rules dealing with the selection of juries in federal courts, as announced in Thiel v. Southern Pacific Co., 328 U. S. 217, 328 U. S. 221, are not applicable in state court proceedings. Fay v. New York, 332 U. S. 261, 332 U. S. 287.

[Footnote 24]

Evidence in state criminal proceedings to support objections on federal constitutional grounds, known to state defendants and their counsel, or easily ascertainable, cannot be withheld or neglected at the state trial and used later to support habeas corpus. State criminal proceedings would be unreasonably hampered. Ex parte Spencer, 228 U. S. 652, 228 U. S. 660; In re Wood, 140 U. S. 278, 140 U. S. 285; Crowe v. United States, 175 F.2d 799; Price v. Johnston, 334 U. S. 266, 334 U. S. 289, and the dissent.

[Footnote 25]

We understand his last basis of qualification was not required. See Brown v. Allen, supra, page 344 U. S. 470, and General Statutes of North Carolina, § 9-1 as amended 1947.

[Footnote 26]

Moral character and intelligence sufficient to serve as jurors is the statutory test. N.C.Gen.Stat., 1943, § 9-1. Even in 1930, only 18.5% over 10 years of age were illiterate. 1930 Census, Vol. III, part 2, p. 359. See Hill v. Texas, 316 U. S. 400, 316 U. S. 404.

[Footnote 27]

State v. Daniels, 231 N.C. 17, 56 S.E.2d 2; 231 N.C. 341, 56 S.E.2d 646; 232 N.C. 196, 59 S.E.2d 430.

[Footnote 28]

Compare Taylor v. Alabama, 335 U. S. 252.

[Footnote 29]

State v. Watson, 208 N.C. 70, 71, 179 S.E. 455, 456, is a capital case where the prisoner "failed to make out and serve statement of case on appeal within the statutory period." He lost his right to prosecute the appeal, and it was dismissed. The court pointed out, however, that it was customary in capital cases to examine the record to see that no error appeared on its face. In State v. Morrow, 220 N.C. 441, 17 S.E.2d 507, the identical procedure was followed. In State v. Moore, 210 N.C. 686, 687, 188 S.E. 421, and State v. Lampkin, 227 N.C. 620, 44 S.E.2d 30, also capital cases, writs of certiorari were denied when the statement of the case on appeal had not been filed within the statutory period.

[Footnote 30]

State v. Daniels, 231 N.C. 17, 20(11), 56 S.E.2d 2; Gen.Stat. of N.C.1943, § 1-587.

[Footnote 31]

Sunal v. Large, 332 U. S. 174, 332 U. S. 180; Eagles v. Samuels, 329 U. S. 304; In re Yamashita, 327 U. S. 1, 327 U. S. 8; Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 465; Goto v. Lane, 265 U. S. 393.

[Footnote 32]

Dowd v. Cook, 340 U. S. 206; see De Meerleer v. Michigan, 329 U. S. 663; Johnson v. Zerbst, 304 U. S. 458.

[Footnote 33]

Hawk v. Olson, 326 U. S. 271, 326 U. S. 278; Herndon v. Lowry, 301 U. S. 242, 301 U. S. 247.

[Footnote 34]

Smith v. Baldi, 344 U. S. 561, 344 U. S. 569-570.

[Footnote 35]

Darr v. Burford, supra, at 339 U. S. 203; Ex parte Spencer, 228 U. S. 652, 228 U. S. 660. See In re Wood, 140 U. S. 278.

[Footnote 36]

See McKane v. Durston, 153 U. S. 684, 153 U. S. 687, where this Court said:

"An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however, grave the offense of which the accused is convicted, was not at common law, and is not now, a necessary element of due process of law. It is wholly within the discretion of the state to allow or not to allow such a review. A citation of authorities upon the point is unnecessary."

MR. JUSTICE FRANKFURTER*

The course of litigation in these cases and their relevant facts are set out in MR. JUSTICE REED's opinion. This opinion is restricted to the two general questions which must be considered before the Court can pass on the specific situations presented by these cases. The two general problems are these:

I. The legal significance of a denial of certiorari, in a case required to be presented here under the doctrine of Darr v. Burford, 339 U. S. 200, when an application for a writ of habeas corpus thereafter comes before a district court.

II. The bearing that the proceedings in the state courts should have on the disposition of such an application in a district court.

Page 344 U. S. 489

I

Darr v. Burford sheds no light on the effect a district court is to give our denial of certiorari in one of these cases. That decision was expressly limited to ruling that, "ordinarily," the certiorari jurisdiction of this Court must be invoked in an attempt to secure review of a State court's refusal of relief prior to an application for habeas corpus in a district court. Darr v. Burford, 339 U.S. at 339 U. S. 201, 339 U. S. 214. The fact that two members of the necessary majority in Darr v. Burford deemed it appropriate to disavow concurrence in any "indication" in the Court's opinion that any effect is to be given to the denial of certiorari emphasizes that no such ruling can be attributed to Darr v. Burford. It was the view of MR. JUSTICE BURTON and MR. JUSTICE CLARK

"that the nature of the proceeding is such that, when the reasons for a denial of certiorari are not stated, the denial should be disregarded in passing upon a subsequent application for relief, except to note that this source of possible relief has been exhausted."

Darr v. Burford, supra, at 339 U. S. 219. Of course, when the reasons are given the decision to deny will have the effect indicated by the reasons stated. But we know best how puzzling it often would be to state why the Court denied certiorari even when we are parties to the denial.

In the three cases now here from the Fourth Circuit, the Court of Appeals relied heavily on our denial of certiorari in ruling against applications for federal habeas corpus by State prisoners. [Footnote 2/1] Its opinion in No.

Page 344 U. S. 490

20 relies on, and the per curiam decision in Nos. 22 and 32 quotes, an earlier decision by that court based on an express assumption that if this Court had thought that the record showed a denial of constitutional rights, certiorari

Page 344 U. S. 491

would have been granted. Stonebreaker v. Smyth, 163 F.2d 498, 499.

If we were to sanction a rule directing the District Courts to give any effect to a denial of certiorari, let alone the effect of res judicata which is the practical result of the position of the Fourth Circuit, we would be ignoring actualities recognized ever since certiorari jurisdiction was conferred upon this Court more than sixty years ago.

From its inception, certiorari jurisdiction has been treated for what it is in view of the function that it was devised to serve. It was designed to permit this Court to keep within manageable proportions, having due regard to the conditions indispensable for the wise adjudication of those cases which must be decided here, the business that is allowed to come before us. By successive measures, Congress enlarged the discretionary jurisdiction of the Court until, by the Judiciary Act of 1925, supplemented by the Court's own invention of the jurisdictional statement in relation to the narrow scope of residual appeals, the Court became complete master of its docket. The governing consideration was authority in the Court to decline to re

United States Supreme Court Cases & Opinions

Justia Legal Web Design US Court Forms Oyez US Supreme Court Multimedia

BROWN V. ALLEN, 344 U. S. 443 (1953)

Case Resources

U.S. Supreme Court

Brown v. Allen, 344 U.S. 443 (1953)

II

III

IV

I