In a petition to the Supreme Court of Missouri for a writ of
habeas corpus, the petitioner, confined in a state penitentiary
under a 15-year sentence for robbery by means of a deadly weapon (a
capital offense in Missouri), alleged that, prior to his
conviction, he requested the aid of counsel, but that none was
appointed; that he did not waive his constitutional right to the
aid of counsel; that he was incapable of making his own defense
adequately, and, as a consequence, was compelled to plead guilty.
The court allowed the petitioner to proceed in forma
but denied the petition for failure to state a cause
1. The petitioner's right to counsel was a right protected by
the Fourteenth Amendment of the Federal Constitution. P.
323 U. S.
2. Whether the federal right of the petitioner was infringed is
for this Court to determine. P. 323 U. S.
3. The petition's having been denied without requiring the State
to answer and without giving the petitioner an opportunity to prove
his allegations, and the allegations of the petition being not
inconsistent with the recitals of the accompanying certified copy
of the sentence and judgment, this Court treats the allegations of
the petition as true. P. 323 U. S.
4. The petition sufficiently alleged a deprivation of due
process of law in violation of the Fourteenth Amendment. Powell
v. Alabama, 287 U. S. 45
323 U. S.
5. In the absence of evidence to the contrary, it will be
presumed that, when a defendant requests counsel, he is without
counsel and without funds to retain counsel. P. 323 U. S.
6. Although a judgment based on a plea of guilty, like other
judgments, may not be set aside lightly on collateral attack, a
judgment based on a plea of guilty to a capital offense by a
defendant who requested but was not granted counsel, and who was
incapable adequately of making his own defense, stands on a
different footing. P. 323 U. S.
7. The nature of the offense charged against the petitioner
emphasized the need of counsel. P. 323 U. S.
8. The right of the petitioner to challenge the validity of the
judgment of conviction on the constitutional ground of denial
Page 323 U. S. 472
his right to counsel cannot be defeated by his failure to take
an appeal from that judgment. P. 323 U. S.
9. Since the state grounds were advanced to sustain the denial
of the petition are insubstantial, the denial is assumed to have
been on the ground that the petition stated no cause of action
based on the federal right. P. 323 U. S.
Certiorari, 322 U.S. 725, to review an order denying a petition
for a writ of habeas corpus.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner pleaded guilty to an indictment charging him with
robbery by means of a deadly weapon. The Circuit Court of Iron
County, Missouri, found him guilty and sentenced him to the state
penitentiary, where he is now confined, for a term of fifteen years
on May 28, 1940. In April, 1944, he filed a petition for a writ of
habeas corpus in the Supreme Court of Missouri. After reciting the
foregoing facts concerning his conviction, he further alleges in
"Prior to his conviction and sentence, as aforesaid, the
petitioner requested the aid of counsel. At the time of his
conviction and sentence, as aforesaid, the petitioner was without
the aid of counsel, the Court did not make an appointment of
counsel, nor did petitioner waive his constitutional right to the
aid of counsel, and he was incapable adequately of making his own
defense, in consequence of which he was compelled to plead
And he contends that he was deprived of counsel contrary to the
requirements of the due process clause of the Fourteenth
Page 323 U. S. 473
Amendment. The Supreme Court of Missouri allowed petitioner to
proceed in forma pauperis,
but denied the petition for the
reason that it "fails to state a cause of action." The case is here
on a petition for a writ of certiorari which we granted because of
the substantial nature of the constitutional question which is
raised. 322 U.S. 725.
Missouri has a statute which requires a court, on request, to
assign counsel to a person unable to employ one and who is charged
with a felony. Rev.Stat. 1939, § 4003. The Missouri Supreme Court
did not indicate the reasons for its denial of the petition beyond
the statement that the petition failed to state a cause of action.
Whatever the grounds of that decision, it is binding on us insofar
as state law is concerned. Smith v. O'Grady, 312 U.
. But the right to counsel in cases of this type
is a right protected by the Fourteenth Amendment of the federal
Constitution. The question whether that federal right has been
infringed is not foreclosed here, even though the action of the
state court was on the ground that its statute requiring the
appointment of counsel was not violated. Powell v.
Alabama, 287 U. S. 45
287 U. S. 59
And Missouri has not suggested in the argument before this Court
that it provides a remedy other than habeas corpus for release from
a confinement under a judgment of conviction obtained as a result
of an unconstitutional procedure. Neither in the briefs nor in oral
argument did Missouri suggest that its habeas corpus procedure
Rev.Stat. 1939, §§ 1590, 1621, 1623.) is not
available in this situation. [Footnote 1
The petition for habeas corpus was denied without requiring the
State to answer or without giving petitioner an opportunity to
prove his allegations. And the allegations
Page 323 U. S. 474
contained in the petition are not inconsistent with the recitals
of the certified copy of the sentence and judgment which
accompanied the petition and under which petitioner is confined.
Hence, we must assume that the allegations of the petition are
true. Smith v. O'Grady, supra.
Read in that light, we
think the petition makes a prima facie
showing of denial
of the constitutional right. The Missouri Supreme Court has ruled
that, when a defendant requests counsel, it will be "presumed," in
absence of evidence to the contrary (State v. Steelman,
318 Mo. 628, 631, 300 S.W. 743) that he was "without counsel and
that he lacked funds to employ them." State v. Williams,
320 Mo. 296, 306, 6 S.W.2d 915, 918. We indulge the same
presumption. Certainly it may be reasonably inferred from that
request, and from the further allegation that, as a result of the
court's failure to appoint counsel, petitioner was "compelled to
plead guilty," that he was unable to employ counsel to present his
defense because he was without funds. Like other judgments, a
judgment based on a plea of guilty is not, of course, to be lightly
impeached in collateral proceedings. See Johnson v.
Zerbst, 304 U. S. 458
304 U. S.
-469. But a plea of guilty to a capital offense made
by one who asked for counsel but could not obtain one, and who was
"incapable adequately of making his own defense," stands on a
different footing. Robbery in the first degree, Rev.Stat. 1939, §
4450, by means of a deadly weapon is a capital offense in Missouri.
Rev.Stat. 1939, § 4453. The law of Missouri has important
distinctions between robbery in the first degree, robbery in the
second degree, grand larceny, and petit larceny. [Footnote 2
] These involve technical
requirements of the indictment or information, the kind of evidence
Page 323 U. S. 475
for conviction, [Footnote 3
the instructions necessary to define the several elements of the
crime, [Footnote 4
] and the
various defenses which are available. These are a closed book to
the average layman. These considerations underscore what was said
in Powell v. Alabama, supra,
p. 287 U. S.
"Even the intelligent and educated layman has small and
sometimes no skill in the science of law. If charged with crime, he
is incapable, generally, of determining for himself whether the
indictment is good or bad. He is unfamiliar with the rules of
evidence. Left without the aid of counsel, he may be put on trial
without a proper charge, and convicted upon incompetent evidence,
or evidence irrelevant to the issue or otherwise inadmissible. He
lacks both the skill and knowledge adequately to prepare his
defense, even though he have a perfect one. He requires the guiding
hand of counsel at every step in the proceedings against him.
Without it, though he be not guilty, he faces the danger of
conviction because he does not know how to establish his innocence.
If that be true of men of intelligence, how much more true is it of
the ignorant and illiterate, or those of feeble intellect."
Those observations are as pertinent in connection with the
accused's plea as they are in the conduct of a trial. The decision
to plead guilty is a decision to allow a judgment of conviction to
be entered without a hearing -- a decision which is irrevocable and
which forecloses any possibility of establishing innocence. If we
assume that petitioner committed a crime, we cannot know the degree
of prejudice which the denial of counsel caused. See Glasser v.
United States, 315 U. S. 60
315 U. S. 75
Only counsel could discern from the facts whether a plea of not
guilty to the offense charged or a
Page 323 U. S. 476
plea of guilty to a lesser offense would be appropriate.
] A layman is
usually no match for the skilled prosecutor whom he confronts in
the courtroom. He needs the aid of counsel lest he be the victim of
overzealous prosecutors, of the law's complexity, or of his own
ignorance or bewilderment.
These are reasons why the right to counsel is "fundamental."
Powell v. Alabama, supra,
p. 287 U. S. 70
Grosjean v. American Press Co., 297 U.
, 297 U. S.
-244; Avery v. Alabama, 308 U.
, 308 U. S. 447
They indicate the protection which the individual needs when
charged with crime. Prompt and expeditious detection and punishment
of crime are necessary for the protection of society. But that may
not be done at the expense of the civil rights of the citizen. Law
enforcement need not be inefficient when accommodated to the
constitutional guarantees of the individual.
Powell v. Alabama, supra,
p. 287 U. S. 71
held that, at least in capital offenses
"where the defendant is unable to employ counsel, and is
incapable adequately of making his own defense because of
ignorance, feeble-mindedness, illiteracy, or the like, it is the
duty of the court, whether requested or not, to assign counsel for
him as a necessary requisite of due process of law."
It follows from our construction of this petition that, if the
allegations are taken as true, petitioner was denied due process of
law. It may well be that these allegations will turn out to be
specious and unfounded. But they are sufficient under the rule
Page 323 U. S. 477
of Powell v. Alabama
to establish a deprivation of due
process of law if their verity is determined. See Cochran v.
Kansas, 316 U. S. 255
Cf. Walker v. Johnston, 312 U. S. 275
As we have said, Missouri does not claim that habeas corpus is
not available in this type of case, or that, under Missouri law,
there is some procedure other than habeas corpus available to
petitioner in which he may challenge the judgment of conviction on
constitutional grounds. Missouri, however, does contend that the
denial of counsel could have been challenged by petitioner by an
appeal, that no appeal was taken, and that no extraordinary
circumstances are shown which excuse that failure. Heretofore, we
have not considered a failure to appeal an adequate defense to
habeas corpus in this type of case. Smith v. O'Grady,
Under these circumstances, the failure to appeal only
emphasizes the need of counsel. If an appeal were made such a
requirement, the denial of counsel would, in and of itself, defeat
the very right which the Constitution sought to protect.
It is suggested, moreover, that, for all we know, the denial of
the petition by the Supreme Court of Missouri rested on adequate
state grounds. It is a well established principle of this Court
that, before we will review a decision of a state court, it must
affirmatively appear from the record that the federal question was
presented to the highest court of the State having jurisdiction and
that its decision of the federal question was necessary to its
determination of the cause. Honeyman v. Hanan,
300 U. S. 14
300 U. S. 18
Lynch v. New York, 293 U. S. 52
where the decision of the state court might have been either on a
state ground or on a federal ground and the state ground is
sufficient to sustain the judgment, the Court will not undertake to
review it. Klinger v.
13 Wall. 257, 80 U. S. 263
Wood Mowing & Reaping Mach. Co. v. Skinner,
139 U. S. 293
139 U. S. 297
Allen v. Arguimbau, 198 U. S. 149
Page 323 U. S. 478
198 U. S.
-155; Lynch v. New York, supra.
We adhere to
those decisions. But it is likewise well settled that, if the
independent ground was not a substantial or sufficient one, "it
will be presumed that the State court based its judgment on the law
raising the Federal question, and this court will then take
jurisdiction." Klinger v. Missouri, supra,
p. 80 U. S. 263
Johnson v. Risk, 137 U. S. 300
137 U. S. 307
Lawrence v. State Tax Commission, 286 U.
, 286 U. S.
-283. Thus, in Maguire v.
8 Wall. 650, and in Neilson v.
12 How. 98, 53 U. S. 110
was contended that the judgment rested on adequate state grounds.
In neither was there an opinion of the state court. The Court
examined the record, found the state grounds not substantial or
sufficient, and reversed the judgments on the federal question.
] We think the
principle of those cases is applicable here. The petition
establishes on its face the deprivation of a federal right. The
denial of the petition on the grounds that it fails to state a
cause of action strongly suggests that it was denied because there
was no cause of action based on the federal right. And, when we
search for an independent state ground to support the denial, we
find none. The Attorney General of Missouri only goes so far as to
say that the petition did not state facts sufficient to justify the
appointment of counsel under the Missouri statute. But, as we have
seen, the allegations in the petition seem sufficient under the
rule laid down by the Supreme Court of Missouri in State v.
And Missouri suggests no other state ground
Page 323 U. S. 479
might be the basis of the decision. [Footnote 7
] That is to say, the only state grounds which
have been advanced in support of the decision below appear to be
insubstantial. We can only assume, therefore, that the denial by
the Supreme Court of Missouri was for the reason that the petition
stated no cause of action based on the federal right. That seems to
us to be the fair intendment of the language which it used if we
put to one side, as we must, the insubstantial state grounds which
have been advanced in explanation of the denial. If, perchance, the
Supreme Court of Missouri meant that some reason of state law
precludes a decision of the federal question, that question is not
foreclosed by this decision. Cf. State Tax Commission v. Van
Cott, 306 U. S. 511
Minnesota v. National Tea Co., 309 U.
. But, on the present state of the record before
us, we do not see what more petitioner need do to establish the
federal right on which his petition is based.
It is available to challenge the constitutionality of the
statute on which the judgment of conviction rests. Ex parte
135 Mo. 223, 36 S.W. 628; Ex parte Taft v.
284 Mo. 531, 538, 539, 225 S.W. 457; Ex parte
338 Mo. 597, 600, 92 S.W.2d 141.
Thus, one indicted for robbery in the first degree cannot be
convicted of robbery in the second degree, but may be convicted of
larceny. State v. Jenkins,
36 Mo. 372; State v.
38 Mo. 374; State v. Brannon,
See State v. White,
326 Mo. 1000, 34 S.W.2d 79.
See State v. Brown,
104 Mo. 365, 16 S.W. 406; State
131 Mo. 369, 33 S.W. 14; State v.
159 Mo. 340, 60 S.W. 736.
"Robbery in the first degree without the use of a dangerous and
deadly weapon is included in the charge of robbery by means of such
weapon. Larceny is also so included, and, where the charge is
robbery and there is evidence of a larcenous taking of property but
the element of force such as to constitute the offense of robbery
is wanting, there should be an instruction submitting larceny."
State v. Craft,
338 Mo. 831, 843, 92 S.W.2d 626, 632.
And see State v. Weinhardt,
253 Mo. 629, 161 S.W.
In the following cases, the Court, without benefit of an opinion
of the state court, examined the pleadings, found substantial state
grounds on which the judgment might have rested, and dismissed the
writ. Johnson v. Risk, supra; Allen v. Arguimbau, supra;
Bachtel v. Wilson, 204 U. S. 36
Adams v. Russell, 229 U. S. 353
Cuyahoga River Power Co. v. Northern Realty Co.,
244 U. S. 300
244 U. S. 303
Lynch v. New York, supra; Woolsey v. Best, 299 U. S.
; McGoldrick v. Gulf Oil Corp., 309 U. S.
It is stated that the petition does not allege facts which show
that petitioner was denied a fair trial, that he was ignorant, that
he was innocent, or that the court was prejudiced. But it is not
apparent how the addition of any such allegations to the petition
would be relevant to petitioner's cause of action based on the
constitutional right to counsel. We are not referred to any
Missouri law which would make them relevant.
MR. JUSTICE FRANKFURTER, dissenting.
At the request of one charged with a felony and unable to employ
counsel, Missouri requires its courts to assign counsel. In
State v. Williams,
320 Mo. 296, 6 S.W.2d 915, a defendant
on trial for a capital offense requested the court to assign
counsel, and the court accordingly appointed two lawyers for his
defense. After a plea of guilty and the imposition of a death
sentence, an appeal was taken from a denial of a motion in arrest
Page 323 U. S. 480
on the ground that the trial court violated the Missouri statute
in that the record did not show that the judge had ascertained the
inability of the accused to employ counsel before appointing them.
The Missouri Supreme Court held that the absence of such a specific
finding did not constitute a violation of the Missouri
"The record shows that it was upon defendant's request that the
court assigned him counsel. Having requested the court to assign
counsel, it will then be presumed that defendant was without
counsel, and that he lacked funds to employ them."
320 Mo. at 306, 6 S.W.2d at 918. The court thus rejected the
frivolous claim that, by giving the accused what he asked for,
counsel not of his choice had been forced on him. That decision can
hardly serve as a springboard for concluding in this case that the
Supreme Court of Missouri violated the Constitution of the United
States in finding that the record did not show that the trial
court, in denying the present defendant's request for the
assignment of counsel, denied him rights under the law of Missouri,
as well as the United States Constitution. To be sure, the Missouri
Supreme Court did not write an opinion in support of its conclusion
that the petitioner's writ for habeas corpus "fails to state a
cause of action." There is nothing significant about that, and it
does not affect the basis or scope of this Court's review of state
court decisions. During its 1942 judicial year, the Supreme Court
of Missouri disposed of 300 cases by opinion and 217 cases without
opinion; during its 1942 judicial year, this Court disposed of 218
cases by opinion and 146 cases without opinion (apart from
dispositions of petitions for certiorari). If the determination by
the Missouri court can reasonably be justified on failure to comply
with a requirement of Missouri law, then it must be so justified.
And the record here plainly allows the inference that the
petitioner did not meet the procedural requirements of Missouri law
for relief by habeas corpus. If a decision
Page 323 U. S. 481
of a state court can rest on a state ground, it is our duty to
conclude that it does so rest; it is our duty not to assume that
the state court rejected a claim under the United States
From the beginning, such has been the principle governing our
review of state court decisions. In cases coming here from the
state courts, this Court has no power to pass on questions of state
law; it can review a state court decision only insofar as that
raises a question of federal law, and it can only then pass on the
federal question if a decision on federal law was necessary for the
judgment rendered by the state court. This historic distribution of
judicial authority as between the state courts and this Court was
confirmed and reinforced during the Reconstruction period when the
influences toward expansion of federal jurisdiction were at
floodtide. Murdock v. City of
20 Wall. 590. [Footnote 2/1
Page 323 U. S. 482
These sound like dry rules of technical jurisdiction. In fact,
they express an important phase of due regard for our federal
constitutional system. State courts are no less under duty to
observe the United States Constitution than is this Court. To be
sure, authority is vested in this Court to see to it that that duty
is observed. But to assume disobedience, instead of obedience, to
the Law of the Land by the highest courts of the States is to
engender friction between the federal and state judicial systems,
to weaken the authority of the state courts and the administration
of state laws by encouraging unmeritorious resorts to this Court,
and wastefully to swell the dockets of this Court.
This case gives point to the importance of adhering to the
principles that govern our review of state decisions. Nothing is a
more fundamental characteristic of a civilized society than those
securities which safeguard a fair trial for one accused of crime.
Those assurances were written into the Federal Constitution even
against State action by the Due Process Clause of the Fourteenth
Amendment. A central safeguard is the opportunity for an accused to
have adequate facilities for presenting his defense. But, a full
half century before the United States Constitution made this
requirement of the States, Missouri, while yet a Territory,
provided for the assistance
Page 323 U. S. 483
of counsel for accused in need. Digest of the Laws of Missouri
Territory, 1818, Crimes and Misdemeanors § 35. There is nothing to
warrant the assumption that the Supreme Court of Missouri was
unmindful of the exactions of its own historic law or of the extent
to which that is now embedded in the Due Process Clause. On the
contrary, every assumption must be indulged that that court was
mindful of the right which may be claimed by an indigent accused to
have a lawyer's aid for his defense. But it may also have been
mindful of the requirement of her law that a trial judge be
reasonably convinced that an accused is in need of counsel.
Of course, this Court will not withhold its reviewing power over
a decision of a state court by presuming that the state court
founded its decision on a wholly untenable basis of local law.
See, e.g., 53 U. S. Lagow,
12 How. 98, 53 U. S.
-111. But nothing in the record before us precludes
the assumption that the Missouri Supreme Court found a local
inadequacy in the petition for a writ of habeas corpus. If the
Missouri Supreme Court had in fact refused to grant the writ of
habeas corpus because it concluded that there was not a sufficient
allegation by petitioner that he had need for counsel, certainly
this Court would not reject that as an inadequate state ground.
And, if that would have furnished an adequate state ground, we must
assume that it did, instead of attributing to the Supreme Court of
Missouri a flagrant violation of the Constitution. If the Missouri
Supreme Court enforces its requirement that an accused make
manifest his need for appointed counsel, and if Missouri enforces
this requirement even with procedural strictness against those
convicted of felonies years after their sentence, it is not for us
to be hypercritical in denying to the highest tribunal of a State
what it may conceive to be its duty to see to it
Page 323 U. S. 484
that the great writ of habeas corpus is not abused, [Footnote 2/2
] and that the administration
of criminal justice is not needlessly weakened by astute devices.
While the petition in this case was signed by Williams alone, it
bears every evidence of having been drawn by one aware of the
relevant legal issues and skilled in legal drafting.
If, perchance, we were to interpret erroneously the decision of
the Supreme Court of Missouri in finding that the present writ
failed to state a cause of action because it was wanting in
requirements of Missouri law, no real harm will have been done. By
proper application to the state court, the ambiguity of the present
record may be removed by showing, if indeed such be the fact, that
the Missouri Supreme Court necessarily rejected a federal claim
here reviewable. See Whitney v. California,
269 U.S. 530;
274 U. S. 274
357, 274 U. S.
-362; Lynch v. New York, 293 U. S.
; Honeyman v. Hanan, 300 U. S.
. Or another petition for a writ of habeas corpus
making the necessary allegations would quickly reveal whether the
Supreme Court of Missouri flagrantly disregarded a law of Missouri
older than the State itself, let alone a right sanctioned by the
Constitution of the United States. Petitioner is now represented by
able and devoted counsel who would quickly enough bring to light
any such disregard. Certainly we ought not to attribute illegality
to the Supreme Court of Missouri when the assumption of
Page 323 U. S. 485
obedience to its own traditions lies so readily on the surface
of this record.
The petition should be dismissed for want of jurisdiction.
MR. JUSTICE ROBERTS joins in this opinion.
"The rules which govern the action of this court in cases of
this sort are well settled. Where it appears by the record that the
judgment of the State court might have been based either upon a law
which would raise a question of repugnancy to the Constitution,
laws, or treaties of the United States, or upon some other
independent ground, and it appears that the court did, in fact base
its judgment on such independent ground, and not on the law raising
the Federal question, this court will not take jurisdiction of the
case even though it might think the position of the State court an
unsound one. But where it does not appear on which of the two
grounds the judgment was based, then, if the independent ground on
which it might have been based was a good and valid one, sufficient
of itself to sustain the judgment, this court will not assume
jurisdiction of the case; but if such independent ground was not a
good and valid one, it will be presumed that the State court based
its judgment on the law raising the Federal question, and this
court will then take jurisdiction."
13 Wall. 257, 80 U. S.
These settled principles were very recently again summarized in
a per curiam opinion in Southwestern Bell Tel. Co. v.
Oklahoma, 303 U. S. 206
303 U. S.
"We have repeatedly held that it is essential to the
jurisdiction of this Court in reviewing a decision of a court of a
State that it must appear affirmatively from the record not only
that a federal question was presented for decision to the highest
court of the State having jurisdiction, but that its decision of
the federal question was necessary to the determination of the
cause; that the federal question was actually decided, or that the
judgment as rendered could not have been given without deciding it.
De Saussure v. Gaillard, 127 U. S. 216
, 127 U. S.
; Johnson v. Risk, 137 U. S.
, 137 U. S. 306
Mowing & Reaping Machine Co. v. Skinner, 139 U. S.
, 139 U. S. 295
, 139 U. S.
; Whitney v. California, 274 U. S.
, 274 U. S. 360
v. New York, 293 U. S. 52
, 293 U. S.
"We are dealing with a writ antecedent to statute, and throwing
its root deep into the genius of our common law. . . . It is
perhaps the most important writ known to the constitutional law of
England, affording as it does a swift and imperative remedy in all
cases of illegal restraint or confinement. It is of immemorial
antiquity, an instance of its use occurring in the thirty-third
year of Edward I. It has through the ages been jealously maintained
by Courts of Law as a check upon the illegal usurpation of power by
the Executive at the cost of the liege."
Secretary of State For Home Affairs v. O'Brien,
A.C. 603, 609.