1. Upon review of a state court judgment dismissing a petition
for habeas corpus for failure to state a cause of action, this
Court determines for itself whether the allegations of the petition
entitle the petitioner to a hearing on his claim that, in his
conviction of murder, he was denied due process in violation of the
Fourteenth Amendment. P.
326 U. S.
273.
2. The petition to a state court of Nebraska for habeas corpus,
by one under sentence of a court of that State upon a conviction of
murder in the first degree, sufficiently alleged that, at his
trial, the petitioner was denied opportunity to consult with
counsel in the critical period between his arraignment and the
impaneling of the jury -- a denial of due process in violation of
the Fourteenth Amendment -- and he was entitled to a hearing upon
the petition. Pp.
326 U. S.
276-278.
Denial of opportunity to consult with counsel on any material
step after indictment or similar charge and arraignment violates
the Fourteenth Amendment. P.
326 U. S.
278.
3. Petitioner will have an opportunity on the new hearing to
furnish such further specification as the state practice may
require in support of his claim that his conviction was procured by
the use of testimony known by the prosecutor and the trial court to
have been perjured. P.
326 U. S.
273.
Page 326 U. S. 272
4. On the issues of the sufficiency of the evidence and the
interference with the right of appeal, this Court accepts the
decision of the state court that the first cannot be raised by
habeas corpus and that the second is not supported by the facts
stated by the petitioner. P.
326 U. S.
273.
145 Neb. 306, 16 N.W.2d 181, reversed.
Certiorari, 324 U.S. 839, to review the affirmance of a judgment
which dismissed a petition for habeas corpus.
MR. JUSTICE REED delivered the opinion of the Court.
This writ of certiorari brings before us the judgment of the
Supreme Court of Nebraska which affirmed a judgment of a district
court dismissing a petition for habeas corpus to inquire into
petitioner's detention for want of merit and failure to state a
cause of action.
Hawk v. Olson, 145 Neb. 306, 16 N.W.2d
181. [
Footnote 1] Petitioner
was in the penitentiary after conviction for murder. The writ was
granted because a substantial federal question as to restraint
without due process of law under the Fourteenth
Page 326 U. S. 273
Amendment seemed to be presented by the petition for certiorari
and the response. 324 U.S. 839.
As no response was filed or evidence received in the district
court, we accept as true all well pleaded allegations of the
petition and, in the exercise of the duty which lies on us as well
as the Nebraska courts to safeguard the federal constitutional
rights to petitioner, examine for ourselves whether, under the
facts stated, the petitioner is now entitled to a hearing on the
claimed violations of the due process clause in his conviction for
murder in the first degree.
Lisenba v. California,
314 U. S. 219,
314 U. S. 237;
White v. Ragen, 324 U. S. 760.
In its opinion, the Supreme Court of Nebraska carefully
considers a number of claims of denial of due process. It is said
that some of the grounds for release are pleaded in the form of
conclusions, and that Nebraska procedure requires in habeas corpus
proceedings that the applicant must set forth the facts from which
it must appear that he will be entitled to discharge.
Hawk v.
Olson, 16 N.W.2d 181, 183 l.c.. We assume, since such grounds
appear in the petition, that one of these pretermitted grounds is
that "[c]onviction was obtained by the use of perjured testimony
knowingly used by the Prosecuting Officials and the Trial Court."
See Ex parte Hawk, 321 U. S. 114,
321 U. S.
1162. Whatever Nebraska may require in the way of
further specification may be furnished, if available, and
permissible under the law of Nebraska (
see Hawk v. Olson,
supra, 16 N.W.2d 183 r.c.), by petitioner on a new hearing.
Cf. Tomkins v. Missouri, 323 U. S. 485,
323 U. S. 487.
On the issues of the sufficiency of the evidence and the
interference with the right of appeal, we accept the decision of
Nebraska that the first cannot be raised by habeas corpus (
Hawk
v. Olson, 16 N.W.2d 181, 183) and that the second is not
supported by the facts stated by petitioner. [
Footnote 2] Other objections
Page 326 U. S. 274
to the judgment have been made which are not discussed herein,
but which we have looked into and which we do not consider merit
further attention.
Petitioner contends that his conviction violates the Fourteenth
Amendment because of denial at his trial of an opportunity to
examine the charge, subpoena witnesses, consult counsel, and
prepare a defense. Denial of effective assistance of counsel does
violate due process.
Powell v. Alabama, 287 U. S.
45,
287 U. S. 58;
House v. Mayo, 324 U. S. 42,
324 U. S. 46;
compare White v. Ragen, 324 U. S. 760,
324 U. S.
764.
Since
Frank v. Mangum, 237 U.
S. 309,
237 U. S. 331,
this Court has recognized that habeas corpus in the federal courts
by one convicted of a criminal offense is a proper procedure
"to safeguard the liberty of all persons within the jurisdiction
of the United States against infringement through any violation of
the Constitution,"
even though the events which were alleged to infringe did not
appear upon the face of the record of his conviction. This
opportunity for an examination into the "very truth and substance
of the causes of his detention" was said in the
Frank case
to have come from the adoption in 1867 of a statute which empowered
federal courts to examine into restraints of liberty in violation
of the Constitution of the United States. 14 Stat. 385, c. 28.
[
Footnote 3] The legislation
enlarged
Page 326 U. S. 275
for the federal courts the "bare legal review" of the authority
under which a petitioner was held which had been previously
afforded by habeas corpus. [
Footnote 4]
Johnson v. Zerbst, 304 U.
S. 458,
304 U. S.
465-467.
See also In re Neagle, 135 U. S.
1,
135 U. S. 69-76;
McNally v. Hill, 293 U. S. 131.
This liberalization of habeas corpus required federal courts,
when the issue was presented, to examine whether a conviction
occurred under such influence by mob spirit as to deny due process.
Frank v. Mangum, supra, 237 U. S. 331,
237 U. S. 335,
dissent
237 U. S. 347.
The power was called into play a few years later to examine a state
conviction under alleged community coercion, and this Court said
that, if the facts set out were true, the trial would not support a
conviction.
Moore v. Dempsey, 261 U. S.
86. In
Mooney v. Holohan, 294 U.
S. 103,
294 U. S. 112,
it was declared that the knowing use of material perjured testimony
by a state prosecutor would make a trial unfair within the meaning
of the Fourteenth Amendment.
When the absence of counsel at a trial was urged as a ground for
a federal writ of habeas corpus, we held that in federal courts a
felony conviction without benefit of counsel is subject to
collateral attack because a violation of the accused's
constitutional right to the services of an attorney unless he has
intelligently waived that privilege.
Page 326 U. S. 276
Johnson v. Zerbst, supra, 304 U. S.
467-468;
Walker. v. Johnston, 312 U.
S. 275,
312 U. S. 286.
The same is true in instances of coercion.
Waley v.
Johnston, 316 U. S. 101,
316 U. S.
104.
In state prosecutions, a conviction on a plea of guilty,
obtained by a trick,
Smith v. O'Grady, 312 U.
S. 329,
312 U. S. 334,
or, after refusal of a proper request for counsel, because of the
accused's incapacity adequately to defend himself,
Williams v.
Kaiser, 323 U. S. 471,
323 U. S. 472,
will not support imprisonment. Such procedure violates the
Fourteenth Amendment to the Constitution.
See Tomkins v.
Missouri, 323 U. S. 485;
Cochran v. Kansas, 316 U. S. 255.
That Amendment is violated also when a defendant is forced by a
state to trial in such a way as to deprive him of the effective
assistance of counsel.
Powell v. Alabama, supra,
287 U. S. 52,
287 U. S. 58;
House v. Mayo, 324 U. S. 42.
Compare Ex parte Hawk, 321 U. S. 114;
Glasser v. United States, 315 U. S.
60,
315 U. S. 69-70.
When the state does not provide corrective judicial process, the
federal courts will entertain habeas corpus to redress the
violation of the federal constitutional right.
White v.
Ragen, 324 U. S. 760.
When the corrective process is provided by the state but error, in
relation to the federal question of constitutional violation,
creeps into the record, we have the responsibility to review the
state proceedings.
Williams v. Kaiser, 323 U.
S. 471,
323 U. S. 472;
Tomkins v. Missouri, supra.
Petitioner, a layman, set out the following allegations in his
petition. On March 16, 1936 at 4:15 p.m., the petitioner, who had
previously had a preliminary hearing, was brought to Omaha from the
federal penitentiary at Leavenworth, Kansas. He was held
incommunicado in the Omaha jail except for a visit of fifteen
minutes that evening, 11 to 11:15 p.m., by the Public Defender and
his assistant. These officials tried to intimidate the petitioner
to plead guilty. This petitioner refused to do,
". . . at which time the two Public Officials left your
Petitioner and at the time said they would have nothing
Page 326 U. S. 277
to do with Petitioner's trial scheduled for trial the following
morning."
The next day petitioner was arraigned and was read an
information charging the murder to which he pleaded "not guilty,"
[
Footnote 5] and
"forthwith moved the Trial Court orally for a continuance of
twenty-four (24) hours for the purpose of consulting counsel,
examine the charge, subpoena witnesses, and prepare a defense, and
forthwith the Trial Court overruled the motion for a continuance
and ordered the trial to proceed, at which time the Clerk of the
Court began to impanel the trial jury and had called two or three
jurymen, when Joseph M. Lovely, a Public Official (Public Defender)
and John N. Baldwin, his assistant stepped forward and entered the
case, without ever having consulted your Petitioner, and without
ever having been assigned by the Trial Court to represent your
Petitioner."
"Your Petitioner had no consultation whatsoever with either of
the aforesaid Public Officials regarding his defense, they picked
the jury and testimony was adduced, and a continuance or recess
taken until the following morning March 18 (Wednesday), 1936."
Petitioner claimed the protection of the Fourteenth Amendment.
The record is either silent on or not inconsistent with anything
material in these allegations.
Cf. Tomkins v. Missouri,
323 U. S. 485,
323 U. S. 487.
There is no allegation or suggestion
Page 326 U. S. 278
of ignorance of or unfamiliarity with procedural or substantive
law or subnormal mentality.
These facts, if true, we think, set out a violation of the
Fourteenth Amendment. They are not conclusions of law. They are not
too vague. The charge upon which petitioner was convicted was
murder in the first degree. He had no advice of counsel prior to
the calling of the jury. His motion for continuance to examine the
charge and consult counsel was made without assistance. Homicide
has degrees in Nebraska.Comp.Stat.Neb.1929, § 28-401 to § 28-403.
There are difficulties in the application of the rules.
In re
Cole, 103 Neb. 802, 805, 174 N.W. 509, 848;
Bourne v.
State, 116 Neb. 141, 216 N.W. 173. The defendant needs
counsel, and counsel needs time.
Cf. Tomkins v. Missouri,
323 U. S. 485,
323 U. S.
488.
As the Supreme Court of Nebraska considered the motion for
continuance on the merits, [
Footnote 6] no question of state procedure for the
reexamination of criminal convictions arises. As to the issue on
the motion for continuance, our duty requires us to determine only
whether or not the denial under the facts alleged violates due
process. We think there was an allegation that no effective
assistance of counsel was furnished in the critical time between
the plea of not guilty and the calling of the jury. Continuance may
or may not have been useful to the accused, but the importance of
the assistance of counsel in a serious criminal charge after
arraignment is too large to permit speculation on its effect. We
hold that denial of opportunity to consult with counsel on any
material step after indictment or similar charge and arraignment
violates the Fourteenth Amendment.
Petitioner states a good cause of action when he alleges facts
which support his contention that, through denial of asserted
constitutional rights, he has not had the kind of
Page 326 U. S. 279
trial in a state court which the due process clause of the
Fourteenth Amendment requires. This, of course, does not mean that
uncontradicted evidence of a witness must be accepted as true on
the hearing. Credibility is for the trier of facts. The evidence
may show that the charge was served upon petitioner well in advance
of the trial (
see note
5 supra) and that he had ample opportunity to consult
with counsel and secure any needed witnesses. He may have
intelligently waived his constitutional rights.
Adams v. United
States ex rel. McCann, 317 U. S. 269,
317 U. S.
275.
Petitioner carries the burden in a collateral attack on a
judgment. [
Footnote 7] He must
prove his allegations, but he is entitled to an opportunity.
Reversed and remanded.
MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.
[
Footnote 1]
The opinion of the Supreme Court of Nebraska does not deal with
an alternate ground of the district court judgment. This was that
previous petitions for habeas corpus had "fully and finally
adjudicated" the present issues.
Compare Salinger v.
Loisel, 265 U. S. 224,
265 U. S. 230;
Ex parte Hawk, 321 U. S. 114,
321 U. S. 118.
We do not consider this issue.
The following reported cases show the efforts of petitioner to
secure release. There are other proceedings not reported.
Hawk
v. O'Grady, 137 Neb. 639, 290 N.W. 911 (appeal from denial of
writ in state District Court),
cert. denied, 311 U.S. 645;
Hawk v. Olson, 130 F.2d 910 (appeal from denial of writ in
District Court),
cert. denied, 317 U.S. 697; 318 U.S. 746
(original);
321 U. S. 114
(original).
[
Footnote 2]
Lack of counsel and wrongful withholding by judicial officers of
the necessary record form the substance of this claim. The opinion
of the Supreme Court of Nebraska disposes of this by pointing out
that petitioner never alleged a request to the Public Defender for
assistance on appeal, and that a mandamus (for the record) was
denied. We assume the denial was proper, as petitioner makes no
complaint as to it. On the present record, the failure to seek
review from the conviction was without excuse. 16 N.W.2d 181,
184.
[
Footnote 3]
This statute was reenacted as R.S. §§ 752-761. The provision now
appears in 28 U.S.C. § 453:
"The writ of habeas corpus shall in no case extend to a prisoner
in jail unless where he is . . . in custody in violation of the
Constitution or of a law or treaty of the United States. . . ."
The section had its origin in a bill (No. 605) reported by the
Judiciary Committee of the House in response to a resolution
directing that committee to inquire and report to the House by bill
or otherwise
"what legislation is necessary to enable the courts of the
United States . . . to enforce the liberty of all persons under the
operation of the constitutional amendment abolishing slavery."
See Cong.Globe, 39th Cong., 1st Sess., 87, 4151. The
debates on the bill in the House and Senate, while mostly concerned
with incidental matters, indicated that jurisdiction to issue the
writ of habeas corpus was not intended to be limited merely to
violations of the Thirteenth Amendment.
See Cong.Globe,
39th Cong., 1st Sess., 4150, 4151, 4229; Cong.Globe, 39th Cong., 2d
Sess., 730, 790.
[
Footnote 4]
See Ex parte
Watkins, 3 Pet.193,
28 U. S. 202,
cited in the
Frank case, and 4 Bacon's Abridgement 563
et seq., Johnson Edition 1856; XIV Viner's Abridgement,
(2d Ed.), 212(D) and 217(F)(2).
[
Footnote 5]
Petitioner does not allege whether or not he had previously
received a copy of the charge in conformity with the requirement of
Revised Statutes of Nebraska § 29-1802 which provides that,
"Within twenty-four hours after the filing of an indictment for
felony, and in every other case on request, the clerk shall make
and deliver to the sheriff, the defendant or his counsel a copy of
the indictment, and the sheriff on receiving such copy shall serve
the same upon the defendant. No one shall be, without his assent,
arraigned or called on to answer to any indictment until one day
shall have elapsed, after receiving in person or by counsel, or
having an opportunity to receive a copy of such indictment as
aforesaid."
Section 29-1604 makes this section applicable to an
information.
[
Footnote 6]
Hawk v. Olson, 16 N.W.2d 181, 184.
[
Footnote 7]
Johnson v. Zerbst, 304 U. S. 458,
304 U. S. 468;
Walker v. Johnson, 312 U. S. 275,
312 U. S. 286;
Williams v. Kaiser, 323 U. S. 471,
323 U. S. 472,
323 U. S.
474.