1. In a criminal prosecution under the Selective Training and
Service Act of 1940 for failure to submit to induction into the
Army, a federal district court improperly denied to a defendant who
had fully exhausted his administrative remedy the right to defend
on the ground of the invalidity of his classification by the local
Board as available for military service, rather than as an exempt
minister of religion. He was convicted and sentenced to
imprisonment, but took no appeal.
Held: he could not later obtain a review of his
conviction by a habeas corpus proceeding. Pp.
332 U. S.
175-184.
2. In the circumstances of this case, the failure of the
defendant to take an appeal from the judgment of conviction cannot
be justified on the ground that an appeal was deemed futile because
of the state of the law at that time --
i.e., after the
decision of this Court in
Falbo v. United States,
320 U. S. 549, and
before the decision in
Estep v. United States,
327 U. S. 114. P.
332 U. S.
181.
3. The trial court's error in the ruling on the question of law
did not deprive the defendant of any right under the Federal
Constitution. P.
332 U. S.
182.
157 F.2d 165, affirmed.
157 F.2d 811, reversed.
Page 332 U. S. 175
No. 535. In a habeas corpus proceeding, the District Court
discharged the writ and remanded petitioner to the custody of the
respondent. The Circuit Court of Appeals affirmed. 157 F.2d 165.
This Court granted certiorari. 329 U.S. 712.
Affirmed, p.
332 U. S.
184.
No. 840. In a habeas corpus proceeding, the District Court
discharged the writ and remanded the relator here to custody. 66 F.
Supp. 183. The Circuit Court of Appeals reversed, and ordered the
discharge of the relator from custody. 157 F.2d 811. This Court
granted certiorari. 329 U.S. 712.
Reversed, p.
332 U. S.
184.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Sunal and Kulick registered under the Selective Training and
Service Act of 1940, 54 Stat. 885, 57 Stat. 597, 50 U.S.C. App. §
301
et seq. Each is a Jehovah's Witness, and each claimed
the exemption granted by Congress to regular or duly ordained
ministers of religion. [
Footnote
1] § 5(d). The local boards, after proceedings unnecessary to
relate here, denied the claimed exemptions and classified these
registrants as I-A. They exhausted their administrative remedies,
but were unable to effect a change in their classifications.
Page 332 U. S. 176
Thereafter they were ordered to report for induction -- Sunal on
October 25, 1944, Kulick on November 9, 1944. Each reported, but
refused to submit to induction. Each was thereupon indicted, tried,
and convicted under § 11 of the Act for refusing to submit to
induction. Sunal was sentenced on March 22, 1945, Kulick on May 7,
1945, each to imprisonment for a term of years. Neither
appealed.
At the trial, each offered evidence to show that his selective
service classification was invalid. The trial courts held, however,
that such evidence was inadmissible, that the classification was
final, and not open to attack in the criminal trial. On February 4,
1946, we decided
Estep v. United States and
Smith v.
United States, 327 U. S. 114.
These cases [
Footnote 2] held
on comparable facts that a registrant who had exhausted his
administrative remedies and thus obviated the rule of
Falbo v.
United States, 320 U. S. 549, was
entitled, when tried under § 11, to defend on the ground that his
local board exceeded its jurisdiction in making the classification
-- for example, that it had no basis in fact. 327 U.S. at
327 U. S.
122-123.
It is plain, therefore, that the trial courts erred in denying
Sunal and Kulick the defense which they tendered. Shortly after the
Estep and
Smith cases were decided, petitions for
writs of habeas corpus were filed on behalf of Sunal and Kulick. In
each case, it was held that habeas corpus was an available remedy.
In Sunal's case the Circuit Court of Appeals for the Fourth Circuit
held that there was a basis in fact for the classification and
affirmed a judgment discharging the writ. 157 F.2d 165.
Page 332 U. S. 177
In Kulick's case, the Circuit Court of Appeals for the Second
Circuit reversed a District Court holding that there was evidence
to support the classification, 66 F. Supp. 183, and ruled, without
examining the evidence, that, since Kulick had been deprived of the
defense, he should be discharged from custody without prejudice to
further prosecution. 157 F.2d 811. The cases are here on petitions
for writs of certiorari, which we granted because of the importance
of the questions presented.
The normal and customary method of correcting errors of the
trial is by appeal. Appeals could have been taken in these cases,
[
Footnote 3] but they were not.
It cannot be said that absence of counsel made the appeals
unavailable, as a practical matter.
See Johnson v. Zerbst,
304 U. S. 458,
304 U. S. 467.
Defendants had counsel. Nor was there any other barrier to the
perfection of their appeals.
Cf. Cochran v. Kansas,
316 U. S. 255.
Moreover, this is not a situation where the facts relied on were
dehors the record, and therefore not open to consideration
and review on appeal.
See Waley v. Johnston, 316 U.
S. 101,
316 U. S. 104;
United States ex rel. McCann v. Adams, 320 U.
S. 220,
320 U. S. 221.
And see Adams v. United States ex rel. McCann,
317 U. S. 269,
317 U. S.
274-275. The error was of record in each case. It is
said, however, that the failure to appeal was excusable, since,
under the decisions as they then stood -- March 22, 1945, and May
7, 1945 -- the lower courts had consistently ruled that the
selective service classification could not be attacked in a
prosecution under § 11.
See Estep v. United States, supra,
at
327 U. S. 123,
note 15. It is also pointed out that, on April 30, 1945, we had
denied certiorari in a case which sought to raise the same
Page 332 U. S. 178
point, [
Footnote 4] and that
Estep v. United States, supra, and
Smith v. United
States, supra, were brought here [
Footnote 5] and decided after Sunal's and Kulick's time
for appeal had passed. The argument is that, since the state of the
law made the appeals seem futile, it would be unfair to those
registrants to conclude them by their failure to appeal.
We put to one side comparable problems respecting the use of
habeas corpus in the federal courts to challenge convictions
obtained in the state courts.
See New York v. Eno,
155 U. S. 89;
Tinsley v. Anderson, 171 U. S. 101,
171 U. S.
104-105;
United States ex rel. Kennedy v.
Tyler, 269 U. S. 13;
Ex parte Hawk, 321 U. S. 114,
321 U. S.
116-117. So far as convictions obtained in the federal
courts are concerned, the general rule is that the writ of habeas
corpus will not be allowed to do service for an appeal.
Adams
v. United States ex rel. McCann, supra, at
317 U. S. 274.
There have been, however, some exceptions. That is to say, the writ
has at times been entertained either without consideration of the
adequacy of relief by the appellate route or where an appeal would
have afforded an adequate remedy. Illustrative are those instances
where the conviction was under a federal statute alleged to be
unconstitutional, [
Footnote 6]
where there was a conviction by a federal court whose jurisdiction
over the person or the offense was challenged, [
Footnote 7] where the trial or sentence by a
federal court violated
Page 332 U. S. 179
specific constitutional guaranties. [
Footnote 8] It is plain, however, that the writ is not
designed for collateral review of errors of law committed by the
trial court -- the existence of any evidence to support the
conviction, [
Footnote 9]
irregularities in the grand jury procedure, [
Footnote 10] departure from a statutory grant of
time in which to prepare for trial, [
Footnote 11] and other errors in trial procedure which do
not cross the jurisdictional line.
Cf. Craig v. Hecht,
263 U. S. 255.
Yet the latter rule is not an absolute one, and the situations
in which habeas corpus has done service for an appeal are the
exceptions. Thus, where the jurisdiction of the federal court which
tried the case is challenged or where the constitutionality of the
federal statute under which conviction was had is attacked, habeas
corpus is increasingly denied in case an appellate procedure was
available for correction of the error. [
Footnote 12] Yet, on the other hand, where the error
was flagrant and there was no other remedy available for its
correction, relief by habeas corpus has sometimes been granted.
[
Footnote 13] As stated by
Chief Justice
Page 332 U. S. 180
Hughes in
Bowen v. Johnston, 306 U. S.
19,
306 U. S. 27,
the rule which requires resort to appellate procedure for the
correction of errors "is not one defining power, but one which
relates to the appropriate exercise of power." That rule is
therefore "not so inflexible that it may not yield to exceptional
circumstances where the need for the remedy afforded by the writ of
habeas corpus is apparent."
Id. at
306 U. S. 27.
That case was deemed to involve "exceptional circumstances" by
reason of the fact that it indicated "a conflict between state and
federal authorities on a question of law involving concerns of
large importance affecting their respective jurisdictions."
Id. at
306 U. S. 27.
The Court accordingly entertained the writ to examine into the
jurisdiction of the court to render the judgment of conviction.
The same course was followed in
Ex parte Hudgings,
249 U. S. 378,
where petitioner was adjudged guilty of contempt for committing
perjury. The Court did not require the petitioner to pursue any
appellate route, but issued an original writ and discharged him,
holding that perjury, without more, was not punishable as a
contempt. That situation was deemed exceptional in view of
"the nature of the case, of the relation which the question
which it involves bears generally to the power and duty of courts
in the performance of their functions, of the dangerous effect on
the liberty of the citizen when called upon as a witness in a court
which might result if the erroneous doctrine upon which the order
under review was based were not promptly corrected. . . ."
Id. at
249 U. S. 384.
Cf. Craig v. Hecht, supra.
The Circuit Court of Appeals thought that the facts of the
present cases likewise presented exceptional circumstances
Page 332 U. S. 181
which justified resort to habeas corpus though no appeals were
taken. In their view, the failure to appeal was excusable, since
relief by that route seemed quite futile.
But denial of certiorari by this Court in the earlier case
imported no expression of opinion on the merits.
House v.
Mayo, 324 U. S. 42,
324 U. S. 48,
and cases cited. The same chief counsel represented the defendants
in the present cases and those in the
Estep and
Smith cases. At the time these defendants were convicted,
the
Estep and
Smith cases were pending before the
appellate courts. The petition in the
Smith case was,
indeed, filed here about two weeks before Kulick's conviction, and
about a month after Sunal's conviction. The same road was open to
Sunal and Kulick as the one Smith and Estep took. Why the legal
strategy counseled taking appeals in the
Smith and
Estep cases and not in these, we do not know. Perhaps it
was based on the facts of these two cases. For the question of law
had not been decided by the Court, and counsel was pressing for a
decision here. The case therefore is not one where the law was
changed after the time for appeal had expired.
Cf. Warring v.
Colpoys, 74 App.D.C. 303, 122 F.2d 642. It is, rather, a
situation where, at the time of the convictions, the definitive
ruling on the question of law had not crystallized. Of course, if
Sunal and Kulick had pursued the appellate course and failed, their
cases would be quite different. But, since they chose not to pursue
the remedy which they had, we do not think they should now be
allowed to justify their failure by saying they deemed any appeal
futile.
We are dealing here with a problem which has radiations far
beyond the present cases. The courts which tried the defendants had
jurisdiction over their persons and over the offense. They
committed an error of law in excluding the defense which was
tendered. That error did not go to the jurisdiction of the trial
court. Congress,
Page 332 U. S. 182
moreover, has provided a regular, orderly method for correction
of all such errors by granting an appeal to the Circuit Courts of
Appeals and by vesting us with certiorari jurisdiction. It is not
uncommon, after a trial is ended and the time for appeal has
passed, to discover that a shift in the law or the impact of a new
decision has given increased relevance to a point made at the
trial, but not pursued on appeal.
Cf. Warring v. Colpoys,
supra. If, in such circumstances, habeas corpus could be used
to correct the error, the writ would become a delayed motion for a
new trial, renewed from time to time as the legal climate changed.
Error which was not deemed sufficiently adequate to warrant an
appeal would acquire new implications. Every error is potentially
reversible error, and many rulings of the trial court spell the
difference between conviction and acquittal. If defendants who
accept the judgment of conviction and do not appeal can later renew
their attack on the judgment by habeas corpus, litigation in these
criminal cases will be interminable. Wise judicial administration
of the federal courts counsels against such course, at least where
the error does not trench on any constitutional rights of
defendants, nor involve the jurisdiction of the trial court.
An endeavor is made to magnify the error in these trials to
constitutional proportions by asserting that the refusal of the
proffered evidence robbed the trial of vitality by depriving
defendants of their only real defense. But as much might be said of
many rulings during a criminal trial. Defendants received
throughout an opportunity to be heard, and enjoyed all procedural
guaranties granted by the Constitution. Error in ruling on the
question of law did not infect the trial with lack of procedural
due process. As stated by Mr. Justice Cardozo in
Escoe v.
Zerbst, 295 U. S. 490,
295 U. S.
494,
"When a hearing is allowed but there is error in conducting it
or in limiting its scope, the remedy is by appeal.
Page 332 U. S. 183
When an opportunity to be heard is denied altogether, the
ensuing mandate of the court is void, and the prisoner confined
thereunder may have recourse to habeas corpus to put an end to the
restraint."
It is said that the contrary position was indicated by the
following statement in
Estep v. United States, supra, at
327 U. S.
124-125:
"But, if we now hold that a registrant could not defend at his
trial on the ground that the local board had no jurisdiction in the
premises, it would seem that the way would then be open to him to
challenge the jurisdiction of the local board after conviction by
habeas corpus. The court would then be sending men to jail today
when it was apparent that they would have to be released
tomorrow."
We were there examining the alternative pressed on us -- that
the classification could not be attacked at the trial. If we denied
the defense, we concluded that habeas corpus would lie the moment
after conviction. For one convicted of violating an illegal order
of a selective service board, like one convicted of violating an
unconstitutional statute, should be afforded an opportunity at some
stage to establish the fact. And, where no other opportunity
existed, habeas corpus would be the appropriate remedy. [
Footnote 14] But that was an
additional reason for allowing the defense in the criminal trial,
not a statement that defendants prosecuted under § 11 had an
alternative of defending at the trial on the basis of an illegal
classification or resorting to habeas corpus after conviction.
These registrants had available a method of obtaining the right to
defend their prosecutions under § 11 on that ground. They did not
use
Page 332 U. S. 184
it. And since we find no exceptional circumstances which excuse
their failure, habeas corpus may not now be used as a
substitute.
Accordingly,
Sunal v. Large will be affirmed and
Alexander v. Kulick will be reversed.
So ordered.
MR. JUSTICE BURTON concurs in the result.
* Together with No. 840,
Alexander, Warden v. United States
ex rel. Kulick, on certiorari to the Circuit Court of Appeals
for the Second Circuit.
[
Footnote 1]
Sunal in 1942 was classified as a conscientious objector and
ordered to report for work of national importance. On his failure
to do so, he was convicted under the Act and a fine and term of
imprisonment were imposed. The events with which we are now
concerned relate to his classification after his discharge from
prison.
[
Footnote 2]
The
Smith case was decided by the Circuit Court of
Appeals on April 4, 1945, 148 F.2d 288; the petition for certiorari
was filed April 25, 1945, and granted May 28, 1945. 325 U.S. 846.
The
Estep case was decided by the Circuit Court of Appeals
on July 6, 1945, 150 F.2d 768; the petition for certiorari was
filed August 3, 1945, and granted October 8, 1945. 326 U.S.
703.
[
Footnote 3]
We therefore lay to one side cases such as
Bridges v.
Wixon, 326 U. S. 135;
Duncan v. Kahanamoku, 327 U. S. 304, and
Eagles v. United States ex rel. Samuels, 329 U.
S. 304, where the order of the agency under which
petitioner was detained was not subject to judicial review.
[
Footnote 4]
Rinko v. United States, 325 U.S. 851. We also denied
certiorari in
Flakowicz v. United States, 325 U.S. 851,
but it, like
Falbo v. United States, supra, was one where
the administrative remedies had not been exhausted, there being an
additional examination which the registrant had not taken.
See
Gibson v. United States, 329 U. S. 338.
[
Footnote 5]
See note 2
supra.
[
Footnote 6]
Ex parte Siebold, 100 U. S. 371;
Ex parte Curtis, 106 U. S. 371;
Ex parte Yarbrough, 110 U. S. 651;
In re Coy, 127 U. S. 731;
Matter of Heff, 197 U. S. 488;
Matter of Gregory, 219 U. S. 210;
Baender v. Barnett, 255 U. S. 224.
[
Footnote 7]
Ex parte
Watkins, 3 Pet.193;
Ex parte Parks,
93 U. S. 18;
Bowen v. Johnston, 306 U. S. 19.
[
Footnote 8]
Ex parte
Lange, 18 Wall. 163 (double jeopardy);
In re
Snow, 120 U. S. 274
(same);
In re Nielsen, 131 U. S. 176
(same);
Counselman v. Hitchcock, 142 U.
S. 547 (self-incrimination);
Ex parte Wilson,
114 U. S. 417
(requirement of indictment);
Ex parte Bain, 121 U. S.
1 (same);
Callan v. Wilson, 127 U.
S. 540 (jury trial);
Johnson v. Zerbst, supra,
(right to counsel);
Walker v. Johnston, 312 U.
S. 275 (same);
Waley v. Johnston, supra,
(coerced plea of guilty).
[
Footnote 9]
Harlan v. McGourin, 218 U. S. 442.
[
Footnote 10]
Ex parte Harding, 120 U. S. 782;
Kaizo v. Henry, 211 U. S. 146.
[
Footnote 11]
McMicking v. Schields, 238 U. S.
99. The rule is even more strict where habeas corpus is
sought before trial.
See Johnson v. Hoy, 227 U.
S. 245.
[
Footnote 12]
In re Lincoln, 202 U. S. 178;
Toy Toy v. Hopkins, 212 U. S. 542;
Glasgow v. Moyer, 225 U. S. 420.
[
Footnote 13]
Tinsley v. Treat, 205 U. S. 20
(removal case). In removal cases, habeas corpus is available not to
weigh the evidence to support the accusation, but to determine
whether there is an entire lack of evidence to support it.
Hyde
v. Shine, 199 U. S. 62,
199 U. S. 84. It
is also available to determine whether removal to the district in
question violates a constitutional right of the accused,
Haas
v. Henkel, 216 U. S. 462, or
whether the court before which it is proposed to take and try the
accused has jurisdiction over the offense.
Salinger v.
Loisel, 265 U. S. 224. But
habeas corpus will not be entertained to pass on the question of
jurisdiction where it involves consideration of many facts and
seriously controverted questions of law.
Rodman v.
Pothier, 264 U. S. 399;
Henry v. Henkel, 235 U. S. 219.
[
Footnote 14]
The remedy of habeas corpus extends to a case where a person "is
in custody in violation of the Constitution or of a law . . . of
the United States. . . ." R.S. § 753, 28 U.S.C. § 453.
MR. JUSTICE FRANKFURTER, dissenting.
That habeas corpus cannot be made to do service for an appeal is
a well worn formula. But this generalization should not dispose of
these two cases if their actualities are viewed in the light of our
decisions.
The First Judiciary Act empowered the courts of the United
States to issue writs of habeas corpus. Section 14 of the Act of
September 24, 1789, 1 Stat. 73, 81. Since the scope of the writ was
not defined by Congress, it carried its common law implications.
The writ was greatly enlarged after the Civil War by the Act of
February 5, 1867. 14 Stat. 385. (For legislation dealing with
habeas corpus,
see Note in 18 F. 68.) It was no longer
limited to searching the face of a judgment of a court of competent
jurisdiction. It was available to cut through forms and go "to the
very tissue of the structure," Mr. Justice Holmes, in
Frank v.
Mangum, 237 U. S. 309,
237 U. S.
345-346, though it was certainly not to be invoked
merely as a substitute for an available appeal. But what is "form"
and what is the "tissue of the structure," and when is a writ
sought in fact as a substitute for an appeal in a practical view of
the administration of justice are questions to which our decisions
give dubious and confused answers. I think it is fair to say that
the scope of habeas corpus in the federal courts is an untidy area
of our law that calls for much more systematic consideration than
it has thus far received.
Page 332 U. S. 185
The extent to which this Court has left itself unhampered by not
drawing sharp jurisdictional lines is indicated by the following
very tentative classification of categories in which habeas corpus
has not been deemed beyond the power of federal courts to
entertain:
(1) Conviction by a federal court which had no jurisdiction
either over the person or of the offense.
See Ex parte
Watkins, 3 Pet.193,
28 U. S. 203;
Ex parte Parks, 93 U. S. 18,
93 U. S. 23. But
the writ is discretionary and may not issue even though if an
opportunity were allowed such want of jurisdiction might be
established.
See Toy Toy v. Hopkins, 212 U.
S. 542, and
Rodman v. Pothier, 264 U.
S. 399.
And compare In re Mayfield,
141 U. S. 107,
with In re Blackbird, 66 F. 541.
(2) Conviction under unconstitutional statute.
Ex parte
Virginia, 100 U. S. 339,
100 U. S. 343;
Ex parte Siebold, 100 U. S. 371;
Ex parte Curtis, 106 U. S. 371;
Ex parte Yarbrough, 110 U. S. 651. The
writ was denied in each case, but the Court passed on the
constitutionality of the statute. Here too, the availability of the
writ will depend on the circumstances of the case, particularly the
stage in the criminal proceedings at which the writ is sought.
Johnson v. Hoy, 227 U. S. 245;
Henry v. Henkel, 235 U. S. 219.
Compare Glasgow v. Moyer, 225 U.
S. 420,
with Matter of Gregory, 219 U.
S. 210.
See also In re Lincoln, 202 U.
S. 178.
(3) Violation by federal courts of specific constitutional
rights: (a) double jeopardy.
Compare Ex parte Bigelow,
113 U. S. 328,
with In re Snow, 120 U. S. 274,
and Ex parte Nielsen, 131 U. S. 176; (b)
self-incrimination. Writ granted as to a witness held in contempt,
though apparently not as to a defendant restrained on charge of
crime.
Compare Counselman v. Hitchcock, 142 U.
S. 547,
and Ex parte Irvine, 74 F. 954 (Taft,
Circuit Judge),
with Matter of Moran, 203 U. S.
96; (c) no indictment by
Page 332 U. S. 186
grand jury.
Ex parte Wilson, 114 U.
S. 417.
Also Ex parte Bain, 121 U. S.
1. As to denial of constitutional rights in State
courts,
Moore v. Dempsey, 261 U. S.
86.
(4) Due regard for harmonious Nation-State relations, need to
avoid friction and maintain balance.
See Ex parte Rowland,
104 U. S. 604;
In re Ayers, 123 U. S. 443;
In re Sawyer, 124 U. S. 200;
Bowen v. Johnston, 306 U. S. 19.
Compare In re Tyler, 149 U. S. 164;
In re Swan, 150 U. S. 637;
Ex parte Young, 209 U. S. 123.
Availability of other remedies is here an important factor.
Similarly, as to State interference with federal officers, prompt
relief may be deemed necessary.
Ohio v. Thomas,
173 U. S. 276.
See also In re Neagle, 135 U. S. 1;
Hunter v. Wood, 209 U. S. 205.
(5) Insufficiency of indictments is not open on habeas corpus;
it may be in removal cases, in view of the hardship to the
individual and the inadequacy of other remedies.
Compare
Tinsley v. Treat, 205 U. S. 20;
also Hyde v. Shine, 199 U. S. 62.
Compare also the extradition cases.
Benson v.
McMahon, 127 U. S. 457;
Ornelas v. Ruiz, 161 U. S. 502;
Bryant v. United States, 167 U. S. 104.
(6) Defects in jury panel, in trial procedure, exclusion or
insufficiency of evidence, are rarely held ground for relief on
habeas corpus. But when no other remedy was available and the error
appeared flagrant, there have been instances of relief.
See
Tinsley v. Treat, 205 U. S. 20.
Compare Ex parte Bain, 121 U. S. 1.
(7) Legality of sentence or conditions of confinement.
Ex parte
Lange, 18 Wall. 163;
In re Bonner,
151 U. S. 242.
(8) Contempt cases.
Ex parte Hudgings, 249 U.
S. 378,
249 U. S. 384.
Compare Ex parte Savin, 131 U. S. 267,
and Ex parte Cuddy, 131 U. S. 280.
But, when appeal is sufficient remedy,
see Craig v. Hecht,
263 U. S. 255,
and
Page 332 U. S. 187
Judge Learned Hand's dissenting opinion in the
Craig
case,
Ex parte Craig, 282 F. 138, 155.
Perhaps it is well that a writ the historic purpose of which is
to furnish "a swift and imperative remedy in all cases of illegal
restraint,"
see Lord Birkenhead, L.C.,
Secretary of
State for Home Affairs v. O'Brien, [1923] A.C. 603, 609,
should be left fluid and free from the definiteness appropriate to
ordinary jurisdictional doctrines. But if we are to leave the law
pertaining to habeas corpus in the unsystematized condition in
which we find it, then I believe it is true of both cases what
Judge Learned Hand said of the
Kulick case, that the writ
is necessary "to prevent a complete miscarriage of justice." 157
F.2d 811, 813. If the justification need be no more definite than
the existence of "exceptional circumstances,"
Bowen v.
Johnston, 306 U. S. 19,
306 U. S. 27,
the reasons for allowing the writs in these cases are more
compelling than were those in
Bowen v. Johnston, where
there merely appeared "to be uncertainty and confusion . . .
whether offenses within the . . . National Park are triable in the
state or federal courts." For the reasons set forth in Judge Hand's
opinion, it "would pass all fair demands upon Kulick's diligence to
conclude him because of his failure to appeal." 157 F.2d at
813.
I agree with both Circuit Courts of Appeals that habeas corpus
was available as a remedy in the circumstances of these cases, but,
since the Court does not consider the merits, I shall abstain from
doing so.
MR. JUSTICE RUTLEDGE, dissenting.
I am in agreement with MR. JUSTICE FRANKFURTER in the result and
substantially in the views he expresses. I would modify them by
making definite and certain his tentatively expressed conclusion
that the great writ of habeas corpus should not be confined by
rigidities characterizing
Page 332 U. S. 188
ordinary jurisdictional doctrines. And I agree with Judge
Learned Hand, in the view stated for the Circuit Court of Appeals
in Kulick's case, that, upon the sum of our decisions, [
Footnote 2/1] regardless of the variety of
statement in the opinions, no more definite rule is to be drawn out
than that
"the writ is available not only to determine points of
jurisdiction,
stricti juris, and constitutional questions,
but whenever else resort to it is necessary to prevent a complete
miscarriage of justice."
157 F.2d 811, 813.
In my opinion, not only is this the law, measured by the sum of
the decisions and the applicable statute, [
Footnote 2/2] but the aggregate of the results
demonstrates it should be the law.
Confusion in the opinions there is, in quantity. But it arises
in part from the effort to pin down what by its nature cannot be
confined in special, all-inclusive categories, unless the office of
the writ is to be diluted or destroyed where that should not
happen. And so limitation in assertion gives way to the necessity
for achieving the writ's historic purpose when the two collide.
Admirable as may be the effort toward system,
Page 332 U. S. 189
this last resort for human liberty cannot yield when the choice
is between tolerating its wrongful deprivation and maintaining the
systematist's art.
The writ should be available whenever there clearly has been a
fundamental miscarriage of justice for which no other adequate
remedy is presently available. Beside executing its great object,
which is the preservation of personal liberty and assurance against
its wrongful deprivation, considerations of economy of judicial
time and procedures, important as they undoubtedly are, become
comparatively insignificant. [
Footnote
2/3] This applies to situations involving the past existence of
a remedy presently foreclosed, as well as to others where no such
remedy has ever been afforded.
In the prevailing state of our criminal law, federal and state,
there are few errors, either fundamental or of lesser gravity,
which cannot be corrected by appeal timely taken, unless the facts
disclosing or constituting them arise after the time has expired.
If the existence of a remedy by appeal at some stage of the
criminal proceedings is to be taken for the criterion, then in very
few instances, far less than the number comprehended by our
decisions, will the writ be available. Taken literally, the formula
so often repeated, that the writ is not a substitute for appeal, is
thus in conflict with every case where the ground upon which the
writ has been allowed either was or might have been asserted on
appeal. [
Footnote 2/4]
Page 332 U. S. 190
The formula has obvious validity in the sense that the writ is
not readily to be used for overturning determinations made on
appeal or for securing review where no specification has been made
or no appeal has been taken of matters not going to make the
conviction a gross miscarriage of justice.
But any effort to shut off the writ's functioning merely because
appeal has not been taken in a situation where, but for that fact
alone, the writ would issue seems to me to prescribe a system of
forfeitures in the last area where such a system should prevail.
Certainly a basic miscarriage of justice is no less great or
harmful, either to the individual or to the general cause of
personal liberty, merely because appeal has not been taken, than
where appeal is taken but relief is wrongfully denied.
These considerations apply with special force, though not
exclusively, where good reason existed, as I think did here, for
failure to note the appeal in the brief time
Page 332 U. S. 191
allowed. [
Footnote 2/5] Whether
or not the inferior federal courts were justified in taking the
Falbo decision [
Footnote
2/6] for more than its specific ruling, the fact remains that
their broadly prevailing view was that that case had cut off all
right to make such defenses as Sunal and Kulick tendered. [
Footnote 2/7]
Page 332 U. S. 192
In that prevailing climate of opinion in those courts, there was
hardly any chance that appeal to the federal circuit courts of
appeals would bring relief by their action. [
Footnote 2/8] The chances for reversal therefore hung
almost exclusively upon the doubtful, not to say slender, [
Footnote 2/9] chance that this Court, in
the exercise of its discretionary power, would grant
certiorari.
The deprivation here was of the right to make any substantial
defense. [
Footnote 2/10] I do not
think a trial which forecloses the basic right to defend, upon the
only valid ground available for that purpose, is any less unfair or
conclusive as against the office of habeas corpus than one which
takes place when the court is without jurisdiction to try the
offense, as when the charge is made under an unconstitutional
statute or for other reason sets forth no lawfully prescribed
offense, or when the court loses jurisdiction by depriving the
accused of his
Page 332 U. S. 193
constitutional right to counsel. That right is no more and no
less than an important segment of the right to have any valid
defense advanced and considered. It becomes almost meaningless if
the larger right to defend is itself cut off. [
Footnote 2/11]
With MR. JUSTICE FRANKFURTER, since the Court reaches only the
question of the availability of habeas corpus, I do not consider
others.
MR. JUSTICE MURPHY joins in this dissent. He believes that
today's decision unduly narrows the point at which due process may
be accorded those accused or convicted of violating the Selective
Training and Service Act of 1940.
Cf. his dissenting
opinion in
Falbo v. United States, 320 U.
S. 549,
320 U. S. 555,
and his concurring opinion in
Estep v. United States,
327 U. S. 114,
327 U. S.
125.
[
Footnote 2/1]
Including those cited in the Court's opinion and that of MR.
JUSTICE FRANKFURTER.
See also dissenting opinion,
Ex
parte Craig, 282 F. 138, 155-159, affirmed in
Craig v.
Hecht, 263 U. S. 255. The
Writ of Habeas Corpus in the Federal Courts (1935) 35 Col.L.Rev.
404.
[
Footnote 2/2]
Rev.Stat. § 761, 28 U.S.C. § 461, which commands the court,
after hearing to "dispose of the party as law and justice require."
Cf. Frank v. Mangum, 237 U. S. 309,
237 U. S.
330-331, and dissenting opinion of Mr. Justice Holmes,
237 U.S. at
237 U. S. 345
ff., concurred in by Mr. Justice Hughes, who afterward, as Chief
Justice, wrote the Court's opinion in
Bowen v. Johnston,
306 U. S. 19.
See 332
U.S. 174fn2/4|>note 4. Pertinently, the statute applies to
prisoners "in custody in violation of the Constitution or of a law
or treaty of the United States." Rev.Stat. § 753, 28 U.S.C. §
453.
[
Footnote 2/3]
It is for this reason that the doctrine of
res judicata
does not apply to habeas corpus determinations,
Waley v.
Johnston, 316 U. S. 101,
316 U. S. 105,
although a prior refusal to discharge the prisoner on a like
application may be given weight.
Salinger v. Loisel,
265 U. S. 224,
265 U. S. 231,
for obvious reasons of judicial administration.
[
Footnote 2/4]
In the following cases, the Court either passed upon the
substance of the contentions presented in the petition for writ of
habeas corpus or held that the petitioner was entitled to a
hearing, although, so far as appears at the time the petition was
filed the time to appeal had expired,
e.g., Bowen v.
Johnston, 306 U. S. 19;
Walker v. Johnston, 312 U. S. 275;
Johnson v. Zerbst, 304 U. S. 458;
see The Writ of Habeas Corpus in the Federal Courts (1935)
35 Col.L.Rev. 404, 414, n. 66; an appeal had already been taken,
Moore v. Dempsey, 261 U. S. 86; or
the time to appeal had not expired,
Hunter v. Wood,
209 U. S. 205;
Ex parte Sawyer, 124 U. S. 200;
Wo Lee v. Hopkins, 118 U. S. 356,
discussed in The Writ of Habeas Corpus in the Federal Courts,
supra at 414, n. 60.
See also Appleyard v.
Massachusetts, 203 U. S. 222,
203 U. S.
225-226;
Ex parte Bridges, 2 Woods 428, 430,
approved in
Ex parte Royall, 117 U.
S. 241.
In his dissenting opinion in
Ex parte Craig, supra,
332
U.S. 174fn2/1|>note 1, Judge Learned Hand, reviewing the
authorities, said:
"The appellant's attempt rigidly to classify these exceptions
appears to me more definite than the books warrant. A safer rule is
to say somewhat vaguely that must they be occasions of pressing
necessity."
282 F. at 156.
[
Footnote 2/5]
The opinion of the Circuit Court of Appeals in the
Kulick case, after stating the summarized effect of our
decisions as quoted in the text above, said concerning this
case:
"The occasion at bar is such; certainly the reasons for allowing
it are more compelling than were those in
Bowen v.
Johnston [
see 332
U.S. 174fn2/3|>notes 3, 4,
supra], where there
merely appeared 'to be uncertainty and confusion . . . whether
offenses within' a national park 'are triable in the state or
federal courts.' It would pass all fair demands upon Kulick's
diligence to conclude him because of his failure to appeal. Not
only had there not been any glimmer of a positive chance of
success, but there had been an unusual consensus of judicial
opinion against it in the lower courts. Moreover, although a number
of the decisions could be explained upon the ground that those
inducted had not wholly exhausted their administrative remedies, in
a number of others they had done so, and no distinction had been
established between the two. Indeed, in
United States v.
Flakowicz, supra, [146 F.2d 874], which had been one of these,
the Supreme Court denied certiorari only a fortnight before May
12th,"
the date of Kulick's conviction. 157 F.2d at 813, 814.
See 332
U.S. 174fn2/9|>note 9,
infra.
[
Footnote 2/6]
Falbo v. United States, 320 U.
S. 549. The opinion, though containing language
emphasizing the failure of Congress to provide expressly for
judicial review of selective service boards' classifications,
explicitly pointed out that
"a board order to report is
no more than a necessary
intermediate step in a united and continuous process designed
to raise an army speedily and efficiently,"
and that, if there were a constitutional requirement for
judicial review, "Congress was not required to provide for judicial
intervention before final acceptance of an individual for national
service." 320 U.S. at
320 U. S.
553-554. The opinion also stated: "Surely if Congress
had intended to authorize interference with that process
by
intermediate challenges of orders to report, it would have
said so." 320 U.S. at
320 U. S. 554.
(Emphasis added.)
[
Footnote 2/7]
See 332
U.S. 174fn2/5|>note 5
supra, and the cases cited in
MR. JUSTICE FRANKFURTER's opinion in
Estep v. United
States, 327 U. S. 114,
327 U. S.
139.
[
Footnote 2/8]
In reference to Kulick's case, the chance was practically nil,
since the Circuit Court of Appeals for the Second Circuit
previously had ruled the question adversely to the validity of the
defenses in
United States v. Flakowicz, 146 F.2d 874, and
certiorari had been denied here. 325 U.S. 851.
See
332
U.S. 174fn2/5|>note 5.
Smith v. United States, 148 F.2d 288, afterwards
reversed here,
327 U. S. 327 U.S.
114, apparently was the first in which the Circuit Court of Appeals
for the Fourth Circuit decided the question. The decision was
rendered April 4, 1945. Sunal was convicted on March 22, 1945.
[
Footnote 2/9]
Although denial of certiorari is not to be taken as expression
of opinion in any case, it would be idle to claim that it has no
actual or reasonable influence upon the practical judgment of
lawyers whether appeal should be noted and taken upon the chance
that, in a case substantially identical, this Court's discretion
would be exercised, in the absence of conflict, in a contrary
manner at the stage of application for certiorari.
[
Footnote 2/10]
Under the rule applied in the district courts and the circuit
courts of appeals, the only defenses open would have been that the
defendants had not refused to take the oaths. No defense relating
to the validity of the statute, the regulations, or their
application in the particular cases was available.
[
Footnote 2/11]
Cf. Yakus v. United States, 321 U.
S. 414, dissenting opinion at
321 U. S. 460
ff.