1. Under § 262 of the Judicial Code, a circuit court of appeals
has power, exercisable in the sound discretion of the court, to
issue an order, in the nature of a writ of habeas corpus,
commanding that a prisoner be brought before the court for the
purpose of arguing his own appeal in a case involving his life or
(a) An order requiring the presence of a prisoner before a
circuit court of appeals to argue his own appeal is one in the
nature of a writ of habeas corpus; and, as such, clearly falls
within the scope of § 262. P. 334 U. S.
(b) Such an order satisfies the basic requirement of § 262 that
it be necessary to the complete exercise by the court of an
appellate jurisdiction already existing. P. 334 U. S.
(c) A writ of habeas corpus of this nature is not limited to
circumstances where "necessary" in the sense that the court could
not otherwise physically discharge its appellate duties, but is
available in those exceptional cases where its use as an aid to an
appeal over which the court has jurisdiction may fairly be said to
be reasonably necessary in the interest of justice. P. 334 U. S.
(d) Since ordinarily a court can not designate counsel for a
prisoner who has no lawyer and who desires that none be appointed
to represent him, an arrangement in such case for the prisoner's
presence and participation at the oral argument can be said to be
"reasonably necessary in the interest of justice." P. 334 U. S.
(e) The forms of the habeas corpus writ authorized by § 262 are
not only those which were recognized in this country in 1789, when
the original Judiciary Act containing the substance of this section
came into existence. P. 334 U. S.
(f) Where production of a prisoner before an appellate court is
essential to proper disposition of the case on appeal, issuance of
a writ of habeas corpus for that purpose is "agreeable to the
usages and principles of law" within the meaning of § 262. Pp.
334 U. S.
Page 334 U. S. 267
2. The power to issue such a writ is discretionary, and this
discretion is to be exercised with the best interests of both the
prisoner and the Government in mind. P. 334 U. S.
3. The right given by § 272 of the Judicial Code to parties in
all the courts of the United States to "plead and manage their
causes personally" is not unqualified as to prisoners desiring to
conduct their own oral arguments in appellate courts, and may be
circumscribed as to them where reasonable necessity so dictates.
Pp. 334 U. S.
4. After three unsuccessful attempts by habeas corpus
proceedings to secure release from allegedly unlawful imprisonment,
petitioner instituted a fourth proceeding, alleging for the first
time that the prosecution had knowingly used false testimony to
obtain his conviction. Without denying this allegation or
questioning its sufficiency, the Government asked that the fourth
petition be denied, apparently on the ground that the issues raised
were known to the petitioner when he filed the earlier petitions
and that the fourth petition was an abuse of the writ of habeas
corpus. Without a hearing and without stating any reasons for its
action, the District Court dismissed the fourth petition.
it erred in so doing, and the cause is remanded to
it for further proceedings. Pp. 334 U. S.
-278, 334 U. S.
(a) Since the three prior applications did not raise the issue
as to the prosecution's knowingly using false testimony to obtain
petitioner's conviction, the three prior refusals to discharge
petitioner can have no bearing or weight on the disposition to be
made of the new matter raised in the fourth petition. Salinger
v. Loisel, 265 U. S. 224
Wong Doo v. United States, 265 U.
, distinguished. Pp. 334 U. S.
(b) Although the record in the proceeding upon petitioner's
first petition for habeas corpus indicates that petitioner then had
knowledge of the facts which form the basis, at least in part, of
the due process allegation made in the fourth petition, it can not
be assumed that petitioner has acquired no new or additional
information since the time of the first proceeding that might
indicate fraudulent conduct on the part of the prosecuting
attorneys. P. 334 U. S.
(c) Whether petitioner does or does not have any new information
is a matter which should be determined in the first instance by the
District Court, and on which petitioner is entitled to be heard
either at a hearing or through an amendment or elaboration of his
pleadings. P. 334 U. S.
Page 334 U. S. 268
(d) Assuming that petitioner did have prior knowledge of all the
facts upon which the allegation in question is based, it does not
necessarily follow that the fourth petition should be dismissed,
since he may have excuse for failure previously to assert his
rights. P. 291.
(e) The burden was not on the petitioner to allege affirmatively
in the first instance that he had acquired new information, or that
he had adequate reasons for not raising sooner the issue of the
knowing use of false testimony. It was enough if he presented an
allegation and supporting facts which, if borne out by proof, would
entitle him to relief. Pp.
334 U. S. 291
(f) There can not be imposed on unlearned prisoners who act as
their own counsel in habeas corpus proceedings the same high
standards of the legal art which may be demanded of members of the
legal profession, especially where the imposition of such standards
would have a retroactive and prejudicial effect on the prisoner's
inartistically drawn petition. P. 334 U. S.
(g) If the Government chooses not to deny the allegation or to
question its sufficiency, and desires instead to claim that the
prisoner had abused the writ of habeas corpus, it rests with the
Government to make that claim with clarity and particularity in its
return to the order to show cause. P. 334 U. S.
(h) Once a particular abuse of the writ has been alleged, the
prisoner has the burden of answering that allegation and of proving
that he has not abused the writ; and if the answer is inadequate,
the court may dismiss the petition without further proceedings. P.
334 U. S.
(i) If there is a substantial conflict, a hearing may be
necessary to determine the facts, and appropriate findings and
conclusions of law can then be made. In this way, an adequate
record may be established so that appellate courts can determine
the precise basis of the District Court's action, and the prisoner
is given a fairer opportunity to meet all possible objections to
the filing of his petition. P. 334 U. S.
(j) The procedure followed in the District Court in the instant
proceeding precluded a proper development of the issue of the
allegedly abusive use of the habeas corpus writ, and did not give
petitioner a fair opportunity to meet this important issue. P.
334 U. S.
159 F.2d 234 and 161 F.2d 705 reversed.
Petitioner's fourth petition for a writ of habeas corpus was
denied by the District Court. On appeal, the Circuit Court of
Appeals en banc denied petitioner's motion
Page 334 U. S. 269
for an order directing his appearance for the purpose of orally
arguing his case, 159 F.2d 234, and affirmed the judgment of the
District Court, 161 F.2d 705. This Court granted certiorari. 331
U.S. 804. Reversed and remanded,
p. 334 U. S.
MR. JUSTICE MURPHY delivered the opinion of the Court.
The writ of habeas corpus has played a great role in the history
of human freedom. It has been the judicial method of lifting undue
restraints upon personal liberty. But, in recent years, the
increased use of this writ, especially in federal courts, has
created many procedural problems which are not easy of solution.
This case involves some of those problems. Because of the
importance of the writ and the necessity that it not lose its
effectiveness in a procedural morass, we have deemed it wise to
deal with this case at length, and to set forth fully and
explicitly the answers to the matters at issue.
In 1938, petitioner was convicted in a federal district court in
Michigan under a four-count indictment charging violations of the
federal bank robbery statute. [Footnote 1
] He was sentenced to imprisonment for 65 years,
and was committed
Page 334 U. S. 270
to the United States Penitentiary at Alcatraz, California. His
efforts to prosecute an appeal from his conviction proved futile.
Since his confinement at Alcatraz, petitioner has made four
separate applications for writs of habeas corpus in the United
States District Court for the Northern District of California. The
instant proceeding involves the fourth of these applications.
Inasmuch as the problems in this case can best be understood in
light of the issues raised in the earlier proceedings, it becomes
necessary to examine the various applications in some detail.
1. The first application was prepared and filed in 1940 by
petitioner, who is not a lawyer. He sought release mainly on the
grounds that certain evidence used against him at the trial had
been obtained in violation of the Fourth Amendment, and that the
trial judge had improperly refused to disqualify himself upon the
filing of an affidavit of prejudice. It is important to note that
this application did not allege that the conviction resulted from
the prosecution's knowing use of false testimony. The District
Court issued an order to show cause, a return was made, and the
petitioner then filed a traverse in the form of a "Motion to
overrule Respondent's return and issue writ." This motion likewise
failed to aver the knowing use of false testimony. But it did
Page 334 U. S. 271
the court's attention to "two different statements" made at the
trial by the prosecution's chief witness, Fred T. Donner, and to
the "methods . . . used to obtain" this change in testimony.
] There was no
indication given as to what those "methods" were. Donner's
testimony at the trial was attached as an exhibit, testimony which
revealed that Donner had gone to the office of the District
Attorney and talked to him and his assistant during the interval
between the allegedly conflicting statements. [Footnote 4
The District Court then appointed counsel for petitioner at his
request. Several months later, when the
Page 334 U. S. 272
matter came on for determination, the court entered an order
denying the application for a writ of habeas corpus and dismissing
the petition. No hearing was held, the order being entered solely
on the basis of the pleadings. And no findings of fact or
conclusions of law were made. Nor was an opinion written.
Petitioner thereafter proceeded pro se.
Among his various
legal maneuvers, he moved for a rehearing. He stated, as grounds
for the motion, that the court erred in refusing to allow him to
appear and testify personally before entering the order and that
the court-appointed attorney "blocked your petitioner from filing
an amended petition to include additional points so that they could
be reviewed on appeal." This motion was denied.
Petitioner prepared his own appeal to the Circuit Court of
Appeals. Among the points upon which he stated he intended to rely
was the claim that he had been denied "a fair and impartial trial"
by Donner's change in testimony after talking with the District
Attorney. But the Circuit Court of Appeals, in affirming the
District Court's disposition of the habeas corpus petition, made no
reference to this point; its opinion was devoted exclusively to the
matters raised in the original petition. Price v.
125 F.2d 806.
Included in the numerous claims in his attempt to secure a writ
of certiorari in this Court was the reiteration that Donner's
change in testimony deprived him of a fair
Page 334 U. S. 273
and impartial trial. According to his written argument,
"if this was not perjured, it was base contradictory evidence,
for, after this witness had completed all his evidence, he was then
taken into the private chambers of the United States Attorney . . .
and there was instructed as to what to say, for he came from said
office and was recalled to the stand at this second setting, he
rebutted all his prior testimony. This must be either classed as a
conspiracy forcing a witness to change his testimony, either of
which surely would not be giving the appellant the fair and
impartial trial to which he is entitled."
The Government's memorandum in opposition dealt with this
contention in a footnote. It was there said that petitioner's
"is refuted by the excerpt from the transcript of the
proceedings at the trial introduced as part of petitioner's
pleadings. . . . The witness did not rebut his prior testimony, but
merely supplemented it with a few more details, and he
affirmatively stated that his discussion with the prosecutor did
not assist him in his subsequent testimony."
This Court denied the petition for a writ of certiorari.
Price v. Johnston,
316 U.S. 677, rehearing
316 U.S. 712.
2. In 1942, several months after the foregoing action by this
Court, petitioner prepared and filed in the District Court a second
petition for a writ of habeas corpus. In this petition, he sought
release on the same grounds set forth in his first petition, as
well as on two principal additional grounds. The two new claims
were that petitioner's counsel had been absent from the courtroom
during an important part of the trial, and that petitioner had not
had counsel at the preliminary hearing before the United States
Commissioner. The petition, as amended, contained no allegation
that false testimony had been knowingly used at the trial, nor did
it refer in any way to Donner's allegedly inconsistent testimony.
Moreover, no mention of such matters was made by petitioner
Page 334 U. S. 274
in his testimony at the hearing on the writ of habeas corpus.
The District Court, at the close of the hearing, discharged the
writ. Its findings of fact and conclusions of law were subsequently
entered, and were silent as to any question relating to the knowing
use of false testimony. The District Court's action was affirmed on
appeal, the opinion of the Circuit Court of Appeals being devoted
to the matters decided by the District Court. Price v.
144 F.2d 260. This Court then denied a petition for
certiorari, a petition which presented no issues differing from
those raised in the lower courts. Price v. Johnston,
U.S. 789, rehearing denied,
323 U.S. 819.
3. Petitioner's third petition for a writ of habeas corpus was
denied by the District Court on August 22, 1945. This denial was
based on the ground that the issues raised were known to petitioner
when he filed the earlier petitions, making the third petition an
abusive use of the writ of habeas corpus. Price v.
61 F. Supp. 995, 996
] Leave to appeal
was denied. It is not evident, however, what the issues were that
petitioner did raise in this proceeding.
Page 334 U. S. 275
4. On January 2, 1946, petitioner filed his fourth application
for a writ of habeas corpus. He alleged that he had been denied a
fair and impartial trial in that, on the trial for bank robbery,
the jury was confused by the presentation of evidence to show
perjury before a notary public, that the court was not justified in
imposing a general sentence on the four counts of the indictment,
and that the fourth count did not allege an offense. After an order
to show cause was issued, petitioner amended his petition to allege
"That the government knowingly employed false testimony on the
trial, to obtain the conviction."
The respondent warden, through the United States Attorney,
thereupon filed his return to the order to show cause. This return
did not deny the allegation that the Government knowingly employed
false testimony at the trial. Nor did it question the sufficiency
of the allegation or the absence of supporting facts. It simply
incorporated by reference the entire record in the three prior
habeas corpus proceedings and asked that the fourth petition be
denied on the basis of the District Court's opinion denying the
third application. [Footnote 7
Page 334 U. S. 276
stated that the earlier petitions did not contain some of the
points presented in the fourth petition. It repeated the
allegations in the original petition, though it merely incorporated
by reference the allegation of the amended petition that the
prosecutor knowingly used false testimony.
The District Court denied the fourth petition without a hearing
and without opinion. It is difficult to discover from such action
the precise basis of the District Court's dismissal of the
allegation in question. But, because of the nature of the warden's
return, we suspect that the court thought that the matter was known
to petitioner at the time of filing the first petition, and should
have been urged at that time. There is nothing whatever to indicate
that the dismissal stemmed from the court's belief that the
allegation was insufficient on its face, or that it was obviously
On appeal, a panel of the Ninth Circuit Court of Appeals ordered
up the original files in petitioner's three previous applications,
and directed that petitioner be brought before the court for the
argument of his appeal. After the argument, the submission of the
cause was set aside and the case was assigned for hearing before
the court en banc. Petitioner then moved the court en banc for an
order directing his appearance for the reargument. This motion was
denied on January 6, 1947. In its written opinion, a majority of
the court held that circuit courts of appeals are without power to
order the production of a prisoner for the argument of his appeal
in person. One judge expressed the view that the court had such
power, but concurred in the denial of the motion as a matter of
discretion. Two judges dissented, stating that there was power to
grant the requested relief; but they did not reach the question of
the propriety of exercising that power in this case. 159 F.2d
Page 334 U. S. 277
The appeal was then considered on the merits on briefs filed by
petitioner and respondent [Footnote
] and on oral argument by an Assistant United States Attorney.
Petitioner was unrepresented at the oral argument. On May 5, 1947,
the order of the District Court denying the fourth petition without
a hearing was affirmed, two judges dissenting in separate opinions.
161 F.2d 705.
The majority opinion of the Circuit Court of Appeals pointed out
that, by amending his fourth petition to allege "[t]hat the
government knowingly employed false testimony on the trial, to
obtain conviction," petitioner had interposed a wholly new ground
for discharge. But the specific circumstances of this claim had not
been developed in the District Court. The opinion accordingly
treated the allegation as though it had incorporated petitioner's
explanatory statement in his appellate brief that the United States
Attorney, in the course of the trial,
"did take the one and only witness, Donner, that testified that
there had been a crime committed, from the witness stand after he
had testified that he could not see any guns or pistols during the
robbery, to the district attorney's office, and talked about the
evidence and put the witness Donner back on the witness stand to
testify that he did see the pistols, and described them, when he
could not do so at first."
So construing the allegation, the court then said:
"The records in these several proceedings disclose that
throughout his trial appellant was represented by counsel of
Page 334 U. S. 278
own choosing. And since he was himself present at all times, he
could hardly have been unaware of the described incident or of its
implications, nor does he make any such claim. On the face of his
showing, it is apparent he knew as much about the misconduct at the
time it is said to have occurred as he knows now. Yet no reason or
excuse is attempted to be advanced for his failure to set it up in
one or the other of his prior petitions."
161 F.2d at 706, 707. And it was further stated that
"Where there have been repeated petitions with an apparent
husbanding of grounds, the onus may properly be cast on the
applicant of satisfying the court that an abusive use is not being
made of the writ."
161 F.2d at 707. Since petitioner had given no
valid excuse for failing to present earlier the allegation in
question, the conclusion was reached that the District Court did
not abuse its discretion in denying the fourth petition without a
hearing. Reference was made in this respect to Salinger v.
Loisel, 265 U. S. 224
Wong Doo v. United States, 265 U.
We issued a writ of certiorari to review the important issues
thus raised in the two opinions of the Circuit Court of Appeals.
And, on petitioner's motion, we appointed a member of the bar of
this Court to serve as his counsel before us.
We hold that power is resident in a circuit court of appeals to
command that a prisoner be brought before it so that he may argue
his own appeal in a case involving his life or liberty. That power,
which may be exercised at the sound discretion of the court, grows
out of the portion of § 262 of the Judicial Code, 28 U.S.C. § 377,
which provides that
"The Supreme Court, the circuit courts of appeals, and the
district courts shall have power to issue all writs not
specifically provided for by statute, which may be necessary for
the exercise of their respective jurisdictions,
Page 334 U. S. 279
and agreeable to the usages and principles of law."
An order requiring the presence of a prisoner before a circuit
court of appeals to argue his own appeal is one in the nature of a
writ of habeas corpus. As such, it clearly falls within the scope
of § 262. Basic to the power of a circuit court of appeals to issue
a writ of habeas corpus under that section, of course, is the
pendency of a proceeding of an appellate nature to which the
contemplated writ is auxiliary. Whitney v. Dick,
202 U. S. 132
writ cannot be issued by that court as an independent and original
proceeding; it can only issue where it may be necessary to the
complete exercise of an appellate jurisdiction already existing.
Since the occasion for demanding the presence of a prisoner at an
oral argument would arise only where there was an appeal already
pending before the court, a writ compelling his presence satisfies
this basic requirement of § 262.
Moreover, a writ of habeas corpus of this nature can on occasion
be "necessary" for the exercise of appellate jurisdiction so as to
be authorized by § 262. We have refused to interpret that section
to mean that a circuit court of appeals can issue a habeas corpus
writ only if "necessary" in the sense that the court could not
otherwise physically discharge its appellate duties. Adams v.
United States ex rel. McCann, 317 U.
, 317 U. S. 273
Rather, § 262 has been read so that the writ may be issued where
its use is calculated, in the sound judgment of the circuit court
of appeals, to achieve the ends of justice entrusted to it. In
other words, the writ is available in those exceptional cases
"where, because of special circumstances, its use as an aid to
an appeal over which the court has jurisdiction may fairly be said
to be reasonably necessary in the interest of justice."
at 317 U. S.
Page 334 U. S. 280
Exceptional situations may arise where a circuit court of
appeals might fairly conclude that oral argument by a prisoner in
person is "reasonably necessary in the interest of justice." True,
an appeal can always be submitted on written briefs. But oral
argument, while not indispensable, is frequently, if not usually,
desired by the parties. And there are occasions when a court deems
it essential that oral argument be had; indeed, a court order or
request to that effect may be necessary where the parties have
previously indicated a willingness to forego the privilege. In such
situations where oral argument is slated to take place, fairness
and orderly appellate procedure demand that both parties be
accorded an equal opportunity to participate in the argument,
either through counsel or in person. The difficulty, of course,
arises when one of the parties is a prisoner who has no lawyer and
who desires that none be appointed to represent him, being of the
belief that the case is of such a nature that only he himself can
adequately discuss the facts and issues. Since ordinarily the court
cannot designate counsel for the prisoner without his consent, an
arrangement that is made for his presence and participation at the
oral argument can be said to be "reasonably necessary in the
interest of justice." Otherwise the court loses the benefits of
listening to his contentions, hearing only the arguments of
government counsel. Conceivably, the prisoner's case might be
unduly prejudiced by such a one-sided debate. That the argument
orally advanced by the prisoner may, in fact, be less than
enlightening to the court does not detract from the fairness or the
justness of giving him the opportunity to appear and argue. Thus,
if a circuit court of appeals is satisfied in other respects that
the prisoner should be produced at the argument, a writ designed to
effectuate that production is plainly "necessary" within the
contemplation of § 262.
Page 334 U. S. 281
It remains to be seen whether a writ of habeas corpus, for the
purpose under consideration, is "agreeable to the usages and
principles of law," as that phrase is used in § 262. At common law,
there were several variants of the writ of habeas corpus.
3 Blackstone's Commentaries 129-132; Ex parte
4 Cranch 75, 8 U. S. 97
] None of them,
however, seems to have been devised for the particular purpose of
producing a prisoner to argue
Page 334 U. S. 282
his own appeal. Nor does it appear that the courts of England
have used or developed the habeas corpus writ for this purpose.
However, we do not conceive that a circuit court of appeals, in
issuing a writ of habeas corpus under § 262 of the Judicial Code,
is necessarily confined to the precise forms of that writ in vogue
at the common law or in the English judicial system. Section 262
says that the writ must be agreeable to the usages and principles
of "law," a term which is unlimited by the common law or the
English law. And since "law" is not a static concept, but expands
and develops as new problems arise, we do not believe that the
forms of the habeas corpus writ authorized by § 262 are only those
recognized in this country in 1789, when the original Judiciary Act
containing the substance of this section came into existence. In
short, we do not read § 262 as an ossification of the practice and
procedure of more than a century and a half ago. Rather, it is a
legislatively approved source of procedural instruments designed to
achieve "the rational ends of law." Adams v. United States ex
rel. McCann, supra, 317 U. S.
We accordingly look to the usages and principles which have
attached themselves to the writ of habeas corpus
Page 334 U. S. 283
down through the years to the present time. The historic and
great usage of the writ, regardless of its particular form, is to
produce the body of a person before a court for whatever purpose
might be essential to the proper disposition of a cause. The most
important result of such usage has been to afford a swift and
imperative remedy in all cases of illegal restraint upon personal
liberty. With that usage, a writ for the purpose under
consideration is entirely agreeable and consistent. To order the
production of a prisoner before an appellate court to argue his own
appeal in a case in which he alleges that he is illegally
imprisoned is to perform an act which is intimately and necessarily
related to the presentation of the merits of the prisoner's
complaint, a presentation which is essential if relief from the
allegedly illegal imprisonment is to be secured. Such production,
as we have seen, may in some circumstances be essential to the
proper disposition of the case of appeal. Where that is the case, a
writ in the nature of habeas corpus to achieve that production is
agreeable to the usages of law.
Moreover, the principle has developed that the writ of habeas
corpus should be left sufficiently elastic, so that a court may, in
the exercise of its proper jurisdiction, deal effectively with any
and all forms of illegal restraint. The rigidity which is
appropriate to ordinary jurisdictional doctrines has not been
applied to this writ. The fluidity of the writ is especially
desirable in the setting of a statute where Congress has given
circuit courts of appeals the power to issue the writ in aid of
their appellate jurisdiction wherever "reasonably necessary in the
interest of justice." The ordinary forms and purposes of the writ
may often have little relation to the necessities of the appellate
jurisdiction of those courts. Justice may on occasion require the
us of a variation or a modification
Page 334 U. S. 284
of an established writ. It thus becomes essential not to limit
appellate courts to the ordinary forms and purposes of legal
process. Congress has said as much by the very breadth of its
language in § 262. It follows that we should not write in
limitations which Congress did not see fit to make.
Formulation of the limitations of § 262 which do exist must
await the necessities of appellate jurisdiction in particular
cases. It is enough for the present to note that where those
necessities are such as to require the presence of a prisoner to
argue his own appeal, the issuance of a writ of habeas corpus for
that purpose is "agreeable to the usages and principles of law" so
as to be sanctioned by § 262. Only in that way can we give
substance in this case to our previous statement that "dry
formalism should not sterilize procedural resources which Congress
has made available to the federal courts." Adams v. United
States ex rel. McCann, supra, 317 U. S.
We therefore conclude that circuit courts of appeals do have the
power under § 262 of the Judicial Code to issue an order in the
nature of a writ of habeas corpus commanding that a prisoner be
brought to the courtroom to argue his own appeal. That power has
heretofore been assumed. Schwab v. Berggren, 143 U.
, 143 U. S. 449
and see Goldsmith v. Sanford,
132 F.2d 126, 127;
Donnelly v. State,
26 N.J.L. 463, 472, aff'd,
N.J.L. 601. We now translate that assumption into an explicit
In so deciding, however, we emphasize that the power of a
circuit court of appeals to issue such a writ is discretionary. And
this discretion is to be exercised with the best interests of both
the prisoner and the government in mind. If it is apparent that the
request of the prisoner to argue personally reflects something more
than a mere desire to be freed temporarily from the confines of
Page 334 U. S. 285
prison, [Footnote 11
that he is capable of conducting an intelligent and responsible
argument, and that his presence in the courtroom may be secured
without undue inconvenience or danger, the court would be justified
in issuing the writ. But if any of those factors were found to be
negative, the court might well decline to order the prisoner to be
produced. Section 262, in other words, does not justify an
indiscriminate opening of the prison gates to allow all those who
so desire to argue their own appeals.
The discretionary nature of the power in question grows out of
the fact that a prisoner has no absolute right to argue his own
appeal, or even to be present at the proceedings in an appellate
court. Schwab v. Berggren, supra.
The absence of that
right is in sharp contrast to his constitutional prerogative of
being present in person at each significant stage of a felony
prosecution, [Footnote 12
see Hopt v. Utah, 110 U. S. 574
Snyder v. Massachusetts, 291 U. S. 97
to his recognized privilege of conducting his own defense at the
trial. Lawful incarceration brings about the necessary withdrawal
or limitation of many privileges and rights, a retraction justified
by the considerations underlying our penal system. Among those so
limited is the otherwise unqualified right given by § 272 of the
Judicial Code, 28 U.S.C. § 394, to parties in all the courts of the
United States to "plead and manage
Page 334 U. S. 286
their own causes personally." To the extent that this section
permits parties to conduct their own oral arguments before
appellate courts, it must be modified in its application to
prisoners. Oral argument on appeal is not an essential ingredient
of due process, and it may be circumscribed as to prisoners where
reasonable necessity so dictates.
A prisoner's right to participate in oral argument on appeal is
accordingly to be determined by the exercise of the discretionary
power of the circuit court of appeals under § 262. The court below
erred in holding that no such power existed. But since the case
must go back to the District Court for further proceedings, it is
unnecessary here to remand the case to the Circuit Court of Appeals
to exercise the discretionary power which rightfully belongs to
We hold that petitioner's fourth petition for a writ of habeas
corpus, alleging the knowing use of false testimony to obtain his
conviction, was improperly dismissed by the District Court.
The Government argues before us that the allegation in question,
as presented to the District Court, is a mere allegation of law
unsupported by reference to any specific facts. As such, the
allegation is said to be fatally deficient, and to warrant summary
denial. Reference is made in this respect to Cuddy,
Petitioner, 131 U. S. 280
131 U. S. 286
Kohl v. Lehlback, 160 U. S. 293
160 U. S. 299
United States v. Ju Toy, 198 U. S. 253
198 U. S. 261
Collins v. McDonald, 258 U. S. 416
258 U. S.
-421; Hodge v. Huff,
78 U.S.App.D.C. 329,
140 F.2d 686, 688; and Long v. Benson,
140 F.2d 195,
But this proposition was apparently not presented to or passed
upon by the District Court; nor was it determined
Page 334 U. S. 287
by the Circuit Court of Appeals. The sole complaint made by the
Government in the lower courts, and the main one raised before us,
relates to petitioner's alleged abuse of the writ of habeas corpus.
A consideration of that factor is preliminary, as well as
collateral, to a decision as to the sufficiency or merits of the
allegation itself. We accordingly address ourselves solely to the
alleged abuse of the writ, leaving the Government free to press its
objections to the adequacy of the allegation after the proceedings
are renewed before the District Court.
The Circuit Court of Appeals, as we have noted, treated the bare
allegation of the knowing use of false testimony as having
incorporated the explanatory statement in petitioner's appellate
brief. Whether such an expanded allegation states a sufficiently
specific violation of due process within the meaning of Mooney
v. Holohan, 294 U. S. 103
a question which we need not now answer. Nor is it necessary here
to decide the propriety of treating a statement in an appellate
brief as an amplification of an allegation in the trial court, a
practice to which the Government makes objection.
But in dealing with the alleged abuse of the writ of habeas
corpus, we find it undenied that the explanatory statement
illuminates the allegation made in the District Court. The
statement makes clear the incident to which petitioner had
reference when he alleged the knowing use of false testimony. In
other words, the essence of petitioner's charge is that the
prosecution brought undue pressure to bear on the Government's
chief witness, Donner, to change his testimony, and that this
altered testimony was knowingly used to obtain petitioner's
conviction. Cf. Pyle v. Kansas, 317 U.
, 317 U. S.
-216. The issue now is whether petitioner has so
abused the writ of habeas corpus as to bar a consideration of this
Page 334 U. S. 288
whether it be general or specific in form or whether it be
supported or unsupported by factual references. From the facts
which we have previously detailed, it is evident that this
allegation was not properly raised prior to the amendment of the
fourth petition. None of the three prior petitions had made this
point. In the first proceeding, it is true, petitioner's traverse
to the warden's return called the court's attention to the
differing statements allegedly made by Donner and claimed that
certain undefined "methods" had been used to obtain the change in
testimony. Petitioner was apparently trying to raise the due
process issue formulated in Mooney v. Holohan, supra.
his effort was without success. A mere claim that a witness gave
inconsistent testimony is not enough to charge the prosecution's
knowing use of false testimony; it may well be that the witness'
subsequent statements were true, in which event the claim of
inconsistency is not a constitutional objection. Since this due
process issue was not properly raised, we cannot assume that the
District Court's action in dismissing the first petition on the
pleadings was a determination against petitioner on the merits of
Further elaboration of the Donner incident was made by
petitioner in the course of seeking review of the District Court's
action on the first petition. Both in the Circuit Court of Appeals
and in this Court, he claimed that he had been denied a fair and
impartial trial by Donner's alleged shift in testimony, and, in
this Court, he stated that there had been a conspiracy to force
Donner to change his story. It is noteworthy that the Government
did not see fit to deny or controvert petitioner's claim until the
case reached this Court. We need not decide whether the due process
issue was properly raised in the review proceedings, inasmuch as
petitioner's failure to make a proper allegation in that respect in
Page 334 U. S. 289
Court foreclosed any determination of the matter. And, as we
have noted, the second and third petitions for habeas corpus were
completely silent as to this due process issue.
There has thus been no proper occasion prior to the fourth
proceeding for a hearing and determination by the District Court as
to the allegation that the prosecution knowingly used false
testimony to obtain a conviction. That fact renders inapplicable
Salinger v. Loisel, 265 U. S. 224
upon which reliance was placed by the Circuit Court of Appeals. It
was there held that, while habeas corpus proceedings are free from
the res judicata
principle, a prior refusal to discharge
the prisoner is not without bearing or weight when a later habeas
corpus application raising the same issues is considered. But here,
the three prior applications did not raise the issue now under
consideration, and the three prior refusals to discharge petitioner
can have no bearing or weight on the disposition to be made of the
new matter raised in the fourth petition. Waley v.
Johnston, 316 U. S. 101
Likewise irrelevant to the instant proceeding is Wong Doo v.
United States, 265 U. S. 239
that case, the petitioner set forth two grounds for discharge in
his first petition. At the hearing, he offered no proof in support
of the second ground. The petition was dismissed on the theory that
the first ground was not good in law. A subsequent habeas corpus
petition relied entirely on the second ground alleged in the first
petition. This Court held that the petitioner had had full
opportunity to offer proof as to the second point at the hearing on
the first petition, proof which was accessible at all times. If he
was intending to rely on that ground, good faith required that he
produce his proof at the first hearing.
"To reserve the proof for use in attempting to support a later
petition, if the first failed, was to make an abusive
Page 334 U. S. 290
use of the writ of habeas corpus. No reason for not presenting
the proof at the outset is offered."
265 U.S. at 265 U. S.
The Wong Doo
case thus involved a situation where one
has properly raised an issue in an earlier petition, has received a
full opportunity at a hearing to present evidence on the point, and
has refused to avail oneself of that opportunity. The
distinguishing features in the instant case are obvious.
There is one factor in this case that might be thought to
justify the dismissal of the fourth petition as an abusive use of
the habeas corpus writ. That factor is that petitioner had prior
knowledge of the Donner incident which forms the basis, at least in
part, of the due process allegation now being made. The record in
the first proceeding shows that petitioner's own lawyer elicited
the information from Donner that he had talked with the prosecuting
lawyers during the interlude between the allegedly conflicting
statements. And petitioner made reference to that information
during the course of the first habeas corpus proceeding in the
manner heretofore described. Petitioner now utilizes that same
information in alleging that the prosecution made a knowing use of
In the first place, however, we cannot assume that petitioner
has acquired no new or additional information since the time of the
trial or the first habeas corpus proceeding that might indicate
fraudulent conduct on the part of the prosecuting attorneys. As
Judge Denman stated in his dissenting opinion below, 161 F.2d at
"The gravamen of the misconduct charged is not the fact that the
witness changed his testimony, but that the prosecuting attorney
knowingly caused the witness to give the false testimony. All the
accused and his attorney knew at the trial was that the single
Page 334 U. S. 291
witness changed his testimony. Obviously, this in itself does
not warrant a charge of fraud. That it was fraudulently done by
persuasion of the prosecuting attorney could only have been learned
after conviction, and after the convicted man was in the
Whether petitioner does or does not have any new information is
a matter unrevealed by anything before us or before the Circuit
Court of Appeals. It is a matter which should be determined in the
first instance by the District Court. And it is one on which
petitioner is entitled to be heard either at a hearing or through
an amendment or elaboration of his pleadings. Appellate courts
cannot make factual determinations which may be decisive of vital
rights where the crucial facts have not been developed. Cf.
Kennedy v. Silas Mason Co., 334 U. S. 249
In the second place, even if it is found that petitioner did
have prior knowledge of all the facts concerning the allegation in
question, it does not necessarily follow that the fourth petition
should be dismissed without further opportunity to amend the
pleadings or without holding a hearing. If called upon, petitioner
may be able to present adequate reasons for not making the
allegation earlier, reasons which make it fair and just for the
trial court to overlook the delay. The primary purpose of a habeas
corpus proceeding is to make certain that a man is not unjustly
imprisoned. And if for some justifiable reason he was previously
unable to assert his rights or was unaware of the significance of
relevant facts, it is neither necessary nor reasonable to deny him
all opportunity of obtaining judicial relief.
Moreover, we do not believe that the burden was on the
petitioner of affirmatively alleging in the first instance that he
had acquired new information or that he had adequate reasons for
not raising sooner the issue
Page 334 U. S. 292
of the knowing use of false testimony. It was enough if he
presented an allegation and supporting facts which, if borne out by
proof, would entitle him to relief. Prisoners are often unlearned
in the law and unfamiliar with the complicated rules of pleading.
Since they act so often as their own counsel in habeas corpus
proceedings, we cannot impose on them the same high standards of
the legal art which we might place on the members of the legal
profession. Especially is this true in a case like this, where the
imposition of those standards would have a retroactive and
prejudicial effect on the prisoner's inartistically drawn petition.
Cf. Holiday v. Johnston, 313 U. S. 342
313 U. S. 350
Pyle v. Kansas, supra, 317 U. S. 216
Tomkins v. Missouri, 323 U. S. 485
323 U. S. 487
Rice v. Olson, 324 U. S. 786
324 U. S.
And so, if the Government chooses not to deny the allegation or
to question its sufficiency, and desires instead to claim that the
prisoner has abused the writ of habeas corpus, it rests with the
Government to make that claim with clarity and particularity in its
return to the order to show cause. That is not an intolerable
burden. The Government is usually well acquainted with the facts
that are necessary to make such a claim. Once a particular abuse
has been alleged, the prisoner has the burden of answering that
allegation and of proving that he has not abused the writ. If the
answer is inadequate, the court may dismiss the petition without
further proceedings. But if there is a substantial conflict, a
hearing may be necessary to determine the actual facts. Appropriate
findings and conclusions of law can then be made. In this way, an
adequate record may be established so that appellate courts can
determine the precise basis of the district court's action, which
is often shrouded in ambiguity where a petition is dismissed
without an expressed reason. And the prisoner is given a fairer
Page 334 U. S. 293
to meet all possible objections to the filing of his
It is obvious that the procedure followed in the District Court
in the instant proceeding precluded a proper development of the
issue of the allegedly abusive use of the habeas corpus writ. The
Government's response to the order to show cause was too indefinite
and vague to give petitioner a fair opportunity to meet this
important issue. Merely quoting the court's opinion in the third
habeas corpus proceeding was not enough to require petitioner to
explain his reasons for failing to present earlier his allegation
as to the knowing use of false testimony. And the court either
failed or was unable to delineate the issue by making specific
findings and conclusions of law or by explaining its view of the
matter in a written opinion.
We are not unaware of the many problems caused by the numerous
and successive habeas corpus petitions filed by prisoners.
] But the answer
is not to be found in repeated denials of petitions without leave
to amend or without the prisoners having an opportunity to defend
against their alleged abuses of the writ. That only encourages the
filing of more futile petitions. The very least that can and should
be done is to make habeas corpus proceedings in district courts
more meaningful and decisive, making clear just what issues are
determined and for what reasons.
To that end, we reverse the judgment below and remand the
instant case to the District Court for further proceedings
consistent with this opinion. We do not hold that the District
Court, on remand, must grant the fourth habeas corpus petition if
it is unsupported and unsubstantiated;
Page 334 U. S. 294
nor do we hold that a hearing must now be held on the merits of
the allegation in question. Rather, the case must be developed
further in light of the principles discussed herein. The Government
is free to amend its return to bring into focus whatever abuse of
the writ of habeas corpus it thinks petitioner has committed. And
the petitioner is free to answer such charge as may be made in that
respect, the burden being on him to show that he is entitled at
this late date to make the allegation as to the knowing use of
false testimony. The District Court may then dispose of the matter
on the pleadings or order that a hearing be had to develop the
facts. If the court eventually determines that petitioner has not
abused the writ, the allegation of the knowing use of false
testimony should be decided as to its sufficiency and its merits.
But, in any event, the court should make explicit its determination
of the preliminary problem of the abusive use of the writ.
Reversed and remanded.
12 U.S.C. §§ 588b and 588c. Petitioner was charged with having
(1) entered a federally insured bank with intent to rob, (2) robbed
the bank by putting an employee in fear, (3) jeopardized the lives
of a bank employee and others by the use of a dangerous weapon, and
(4) kidnapped a bank employee in the course of such offense.
Petitioner was found guilty as charged.
His petition to the Sixth Circuit Court of Appeals for a writ of
mandamus to require the trial judge to enter a decision on his
application for an appeal was denied because "no application for
appeal is pending before respondent or in the United States
District Court for the Eastern District of Michigan." Price v.
116 F.2d 500. His petition in this Court for a writ of
certiorari was denied because filed out of time, 311 U.S. 703,
311 U.S. 729. Petitioner acted as his
own counsel in these unsuccessful maneuvers.
Point V of petitioner's motion stated:
"Because the respondent shows falsely on the affidavit by
Assistant United States Attorney John W. Babcock, respondent's
Exhibit 'A', where he states that there was no determination of any
one in said office of the United States Attorney to have him
convicted falsely. Petitioner calls the attention of this Honorable
Court to the testimony of transcript of record at page 35 Second
part. Recross examination of the one and only witness that the
government produced to testify that there had been a crime
committed as charged in indictment No. 24629. Petitioner's Exhibit
'A', testimony given by Fred T. Donner, and it will show just what
methods was used to obtain two different statements from this
This testimony was brought out on re-cross-examination of Donner
by one of petitioner's attorneys. Part of this colloquy was as
"Q. Witness, perhaps I misunderstood your testimony this
morning. Did I understand you correctly to say that, last night
after you left here, you went up to the department of Justice, or
the District Attorney's office, and you discussed your
"A. Yes, sir."
"Q. And whom did you discuss it with?"
"A. With the District Attorney, and the assistant."
"A. And after that discussion, you remembered some things that
you have testified to this morning?"
"A. I remembered them yesterday, but I just -- I was nervous and
"Q. Well, my recollection and yours perhaps do not agree on it,
but the statements that you made yesterday were all true to the
best of your recollection, were they not?"
"A. Yes, sir."
"Q. And your conversations last night after you left the court
didn't assist you in giving any testimony, did they?"
"A. No, it did not, only that I had an opportunity, I wanted an
opportunity to bring out something that I hadn't said."
"Q. Did it refresh your recollection?"
"A. No, it just -- there were just some things I didn't tell in
my story, that is all."
The lawyer who had represented petitioner in connection with the
first application withdrew, and another was appointed in his place
by the District Court to serve petitioner in the second proceeding.
This lawyer filed an amended petition for the writ of habeas
corpus. The writ issued, there was a hearing at which petitioner's
counsel was present, a further amendment of the petition was
allowed, and testimony was taken. Petitioner gave evidence on his
own behalf at this hearing. In prosecuting his appeal from the
District Court's action, petitioner once more acted pro
The District Court's opinion, after briefly stating the
background of the case, reads as follows:
"Petitioner alleges "that the questions now raised was not
raised in the prior petitions No. 23268-W and 10.671-R." However,
these matters were known to petitioner when he filed the petitions
in 23268-W and 23721-R. If petitioner intended to rely on these
matters, he should have urged them in 23268-W. "To reserve them for
use in a later proceeding was to make an abusive use of the
writ of habeas corpus.'" Swihart v. Johnston, 9 Cir.,
1945, 150 F.2d 721."
"Since, upon the face of the petition, petitioner is not
entitled to the writ, Walker v. Johnston, 312 U. S.
, the petition for writ of habeas corpus is
The Government's memorandum of points and authorities, filed
with the return, merely quoted the District Court's opinion denying
the third petition for a writ of habeas corpus, Price v.
D.C., 61 F. Supp. 995 (see footnote 6 supra
). The memorandum
"Respondent, in reliance on the decision of Judge St. Sure and
the authorities which he cites, respectfully urges that the
petition for writ of habeas corpus should be denied, and the order
to show cause, heretofore issued, discharged."
The Government's brief in the Circuit Court of Appeals again was
devoted solely to a quotation of the District Court's opinion
denying the third petition. See footnote 7 supra.
It concluded with the
"Appellee is in accord with the reasoning of Judge St. Sure and
the authorities cited in his memorandum and order denying
appellant's third application for a writ of habeas corpus, and
hereby adopts them in toto
as his argument on this appeal
to sustain the Court below in its decision denying appellant's
fourth application for a writ of habeas corpus in our case at
Blackstone describes the following common law versions of the
habeas corpus writ:
(1) Habeas corpus ad respondendum.
Issued "when a man
hath a cause of action against one who is confined by the process
of some inferior court; in order to remove the prisoner, and charge
him with this new action in the court above."
(2) Habeas corpus ad satisfaciendum.
Issued "when a
prisoner hath had judgment against him in an action, and the
plaintiff is desirous to bring him up to some superior court to
charge him with process of execution."
(3) Habeas corpus ad prosequendum, testificandum,
Issued "when it is necessary to remove a
prisoner, in order to prosecute or bear testimony in any court, or
to be tried in the proper jurisdiction wherein the fact was
(4) Habeas corpus ad faciendum et recipiendum.
"issues out of any of the courts of Westminster hall, when a person
is sued in some inferior jurisdiction, and is desirous to remove
the action into the superior court; commanding the inferior judges
to produce the body of the defendant, together with the day and
cause of his caption and detainer (whence the writ is frequently
denominated an habeas corpus cum causa
) to do
whatsoever the king's court shall consider in that
(5) Habeas corpus ad subjiciendum.
The "great and
efficacious writ," which is "directed to the person detaining
another, and commanding him to produce the body of the prisoner,
with the day and cause of his caption and detention, ad
faciendum, subjiciendum, et recipiendum,
to do, submit to, and
receive whatsoever the judge or court awarding such writ shall
consider in that behalf."
Chief Justice Marshall examines the first four of these writs in
their relation to the American judicial system in Ex parte
4 Cranch 75, 8 U. S. 97
The courts of England have long considered themselves powerless
to issue a habeas corpus writ to enable a prisoner to defend
himself in another proceeding or to argue motions in the trial
court. Benns v. Mosley,
2 C.B. (N.S.) 116; Weldon v.
15 Q.B.D. 471. See also Attorney General v.
9 Price 147; Ford v. Nassau,
9 M. & W. 793;
Rex v. Parkyns,
3 B. & Ald. 679; Attorney General
2 Dowl.P.C. 668; Ex parte Cobbett,
& N. 155; Clark v. Smith,
3 C.B. 982. But the specific
problem of whether a prisoner can be produced to argue in person
his own appeal under circumstances like those present in the
instant case does not appear to have a precise answer in English
The Circuit Court of Appeals below felt that the production of
prisoners to argue their own appeals might lead to
"the widespread abuse of the writ . . . , not to mention the
items of fruitless burden and expense. To the legitimate hope of
release by legal means would be added inducements not so
legitimate; for temporary relief from prison confinement is always
an alluring prospect, and to the hardened criminal the possibility
of escape lurks in every excursion beyond prison walls."
159 F.2d at 237.
But see Bell v. United States,
129 F.2d 290; Barber
v. United States,
142 F.2d 805.
discussions in Dorsey v. Gill,
U.S.App.D.C. 9, 148 F.2d 857; Goodman, "Use and Abuse of the Writ
of Habeas Corpus," 7 F.R.D. 313; Note, 61 Harv.L.Rev. 657.
MR. JUSTICE FRANKFURTER, dissenting.
I agree with the views of MR. JUSTICE JACKSON that, in the light
of all the long drawn-out prior proceedings, the two lower courts
justifiably found the fourth petition for habeas corpus in this
case without merit on its face. It is not too much to ask the
petitioner to state, however informally, that his fourth petition
is based on newly discovered matter, or, in any event, on a claim
that he could not fairly have been asked to bring to the court's
attention in his three prior petitions. Such a requirement
certainly does not narrow the broad protection which the writ of
habeas corpus serves. I also agree with his general attitude
against a prisoner's being brought from Alcatraz -- or any other
federal prison -- to argue his own case
Page 334 U. S. 295
on appeal. My difference with him is that I would not bolt the
door to such an undesirable practice as a matter of law, but merely
leave it as a rigorous rule of practice. The power to depart from
this rule ought not to be wholly foreclosed, even though
opportunity for its exercise is left for contingencies not easily
The office of the writ of habeas corpus precludes definitive
formulation of its limitations precisely because it is the
prerogative writ available for vindicating liberties. See Sunal
v. Large, 332 U. S. 174
332 U. S. 184
332 U. S. 187
Therefore, I would not preclude the use of the writ to bring a
convict before a circuit court of appeals where circumstances in
the interests of justice make his presence compelling. See
Adams v. United States ex rel. McCann, 317 U.
, 317 U. S.
-275. It is a very different thing to judge the use
of the writ for the purpose of having an incarcerated petitioner
argue his own case on appeal by the ordinary standards of judicial
discretion. To acknowledge such power in the circuit courts of
appeals implies too broad an authority, in that the abuse of its
exercise in granting the writ is too narrow a basis for review. A
general rule should preclude the use of the writ for the purpose of
taking a prisoner out of confinement merely to argue his own case
on appeal from dismissal of a petition for habeas corpus after
conviction. Every legitimate right of such a prisoner can be
safeguarded by means much more consonant with the fair and seemly
and wise administration of justice.
THE CHIEF JUSTICE and MR. JUSTICE REED join in this dissent.
MR. JUSTICE JACKSON, dissenting.
I cannot agree that the District Court erred in dismissing this
unsupported and unsubstantiated fourth habeas corpus petition,
whether his action in so doing was
Page 334 U. S. 296
based on its obvious lack of merit or on the prisoner's abuse of
the writ. Nor can I agree that appearance of a prisoner merely to
argue his case is "necessary for the exercise" of the jurisdiction
of the Court of Appeals and "agreeable to the usages and principles
of law" as is required by § 262 of the Judicial Code, 28 U.S.C. §
This case is typical of many based on repeated habeas corpus
petitions by the same prisoner. [Footnote 2/1
] This petitioner is serving a long term for
armed bank robbery. Confinement is neither enjoyable nor
profitable. And it is safe to assume that it neither gives rise to
new scruples nor magnifies old ones which would handicap
petitioner's preparation of one habeas corpus application after
another. If the trial court rules one set of allegations deficient,
concoction of another set may bring success. Under this decision,
failure to allege the most obvious grounds in earlier applications,
or to support them with facts in
Page 334 U. S. 297
a later petition, is not fatal. The number of times the
Government must retry the case depends only on the prisoner's
ingenuity, industry and imagination. This prisoner, in his fourth
petition in eight years, has now gotten around to charging that, at
his trial in 1938, the Government knowingly employed false
testimony to obtain the conviction. This issue substantially
involves a retrial of the original conviction after more than ten
years have passed by, memories are blurred, evidence is lost, and
parties dispersed. The petition is unaccompanied by any particulars
supporting this most serious charge against the court and
responsible officers of the law. The prisoner, of course, has
nothing to lose in any event. Perjury has few terrors for a man
already sentenced to 65 years' imprisonment for a crime of
violence. Even such honor as exists among thieves is not too
precious to be sacrificed for a chance at liberty. Consequently,
his varying allegations can run the gamut of all those perpetuated
in the pages of the United States reports.
The Court now holds that such irresponsible, general,
unsupported and belated accusations must be tried out; further, the
District Judge erred in that he did not request the perennial
petitioner to fill in details, the absence of which, under
established rules, justified his dismissal of the petition actually
filed. I think that the Government should not be required to go to
trial (or rather, retrial) on a case of this kind unless the
petitioner, without prompting or solicitation by the Court, alleges
with particularity conduct which would be sufficient, if proved, to
entitle him to release. If he does not have such facts, he is
doomed ultimately to fail; if he does have them, he should not be
permitted to force the court and the Government into further
litigation until he has disclosed them. And certainly it is not too
much to require that, on a fourth petition, eight years after
conviction, the petitioner must also set forth facts which will
Page 334 U. S. 298
his failure to raise his question in earlier petitions instead
of at a period so remote from his trial.
Moreover, if any one of petitioner's applications and
accompanying facts convince the trial judge that a hearing on the
merits is justified, the prisoner's presence in the trial court to
testify may fairly be said to be necessary. The procedure for
bringing him before that court to give his evidence is of ancient
origin. But it is another and quite different matter to say that a
layman's presence, solely to take part in a legal argument on a
settled record, is necessary for the exercise of the jurisdiction
of the appellate court. The only suggested authority for so
ordering a jailer to fetch a prisoner to argue his own appeal is §
262 of the Judicial Code, 28 U.S.C. § 377, which provides that "the
Supreme Court, the circuit courts of appeal, and the district
courts shall have power to issue all writs not specifically
provided for by statute," and if the statute stopped here, the
Court might have some basis for its action. But the section adds,
"which may be necessary for the exercise of their respective
jurisdictions, and agreeable to the usages and principles of
Even if the Court of Appeals, or this Court, believed that the
former should have the power to summon prisoners for argument of
their appeals, that is not the issue. The issue is, can the
requirements of the statute be met? Is the prisoner's presence
merely to argue his case "necessary for the exercise" of the
appellate court's jurisdiction? I think it is farfetched to so
hold. [Footnote 2/2
Page 334 U. S. 299
may, and usually do, appoint counsel for a prisoner who cannot
obtain one for himself. If there is more that the defendant himself
wants to present, it can always be done in writing. Many cases are
decided in appellate courts solely on written briefs. But the Court
fears that some prisoners like this one may not only refuse
counsel, but also wish not to rest on a written brief. Under the
statute, however, it is not the convenience or the egotism of the
prisoner that confers power to grant a writ -- it is the necessity
of the writ for the exercise of the Court's jurisdiction. It is
difficult for me to believe that prisoners, whom the Court so often
forgives for violating all rules of pleading and procedure on the
ground of lay ignorance, can be a necessary source of light and
leading to an appellate court. The absence of such a necessity is,
I suppose, the reason why no such writ has been known to the law
until today's revelation, and why the statute does not allow it.
But the Court, by this decision, makes it proper for any prisoner
whose appeal from either conviction or denial of any one of his
multitudinous petitions for habeas corpus is before the Court of
Appeals to insist that he be transported to that court to argue the
case and to demand a ruling by the court on that issue as well as
on the merits. This seems to open the gate to new and fruitless
Page 334 U. S. 300
Admittedly, the statute's second requirement, viz.,
that the writ be "agreeable to the usages and principles of law,"
cannot be met. It is apparent that the latter clause is a
limitation on the earlier sweeping grant of power. Ex parte
Bollman and Swartwout,
4 Cranch 75, 8 U. S. 99
Circuit Courts of Appeal are statutory courts, and must look to a
statutory basis for any jurisdiction they exercise. But, in this
case, the Court is authorizing a complete overriding of the
limitation Congress has seen fit to impose. The Court's opinion
points out that employment of the writ of habeas corpus for this
purpose has never been a usage or principle of the common law. No
statutory or decisional [Footnote
] basis for such a usage or
Page 334 U. S. 301
principle is cited. Yet, ignoring the limitations of this very
statute, the Court concludes that the writ can just be issued
anyway. I cannot subscribe to this sort of statutory
This is one of a line of cases by which there is being put into
the hands of the convict population of the country new and
unprecedented opportunities to retry their cases, or to try the
prosecuting attorney or their own counsel, and keep the Government
and the courts litigating their cases until their sentences expire
or one of their myriad claims strikes a responsive chord or the
prisoner make the best of an increased opportunity to escape. I
think this Court, by inflating the great and beneficent writ of
liberty beyond a sound basis, is bringing about its eventual
depreciation. [Footnote 2/4
Petitioner was convicted of armed bank robbery in April, 1938.
After that date, and prior to the filing of this current habeas
corpus petition, he took the following steps seeking his
1. In 1940, petitioned the Court of Appeals for mandamus to
force the trial judge to act on an application for appeal; that
court found no such application was then pending, and denied the
petition; this Court denied certiorari, 311 U.S. 703, and a
rehearing 311 U.S. 729.
2. In 1940, filed an application for habeas corpus. After
argument by court-appointed counsel, the application was dismissed.
The Court of Appeals affirmed, 125 F.2d 806; this Court denied
certiorari 316 U.S. 677, and denied rehearing 316 U.S. 712, the
latter decision being announced June 1, 1942.
3. On September 24, 1942, filed another habeas corpus petition.
After hearing, participated in by court-appointed counsel, the
petition was dismissed. The Court of Appeals affirmed, 144 F.2d
260; this Court denied certiorari, 323 U.S. 789, and denied
rehearing, 323 U.S. 819, the latter decision being announced on
January 29, 1945.
4. Prior to August 22, 1945, filed third habeas corpus petition,
which was denied on that date, 61 F. Supp. 995.
The current petition was filed in January, 1946.
It is a very different thing to find the presence of the
prisoner "necessary" under such circumstances as in Adams v.
United States ex rel. McCann, 317 U.
, 317 U. S. 274
where this Court explained the necessity as follows:
"The circumstances that moved the court below to the exercise of
its jurisdiction were the peculiar difficulties involved in
preparing a bill of exceptions. The stenographic minutes had never
been typed. The relator claimed that he was without funds. Since he
was unable to raise the bail fixed by the trial judge, he had been
in custody since sentence, and therefore had no opportunity to
prepare a bill of exceptions. The court doubted"
"whether any [bill] can ever be made up on which the appeal can
be heard. . . . In the particular circumstances of the case at bar,
it seems to us that the writ is 'necessary to the complete
exercise' of our appellate jurisdiction because . . . there is a
danger that it cannot be otherwise exercised at all, and a
certainty that it must, in any event, be a good deal hampered."
The Court says that it "translates" the "assumption," found in
one decision of this Court, one of a Court of Appeals, and one of a
state court, into a specific holding that the Circuit Courts of
Appeals do have this power. The dictum in Schwab v.
Berggren, 143 U. S. 442
143 U. S. 449
is merely this:
". . . But neither reason nor public policy require that he
shall be personally present pending proceedings in an appellate
court whose only function is to determine whether, in the
transcript submitted to them, there appears any error of law to the
prejudice of the accused, especially where, as in this case, he had
counsel to represent him in the court of review. We do not mean to
say that the appellate court may not, under some circumstances,
require his personal presence, but only that his presence is not
essential to its jurisdiction to proceed with the case."
In Goldsmith v. Sanford,
132 F.2d 126, 127,
318 U.S. 762, rehearing
318 U.S. 799, the Court said:
". . . We know of no precedent for taking a prisoner from the
penitentiary that he might be present to argue in person his appeal
from the adverse judgment on habeas corpus. . . . If there be power
to order the removal which was requested, discretion was well
exercised in refusing it."
In Donnelly v. State,
26 N.J.L. 463, affirmed,
26 N.J.L. 601, which could hardly be even persuasive here, the
Court held that the prisoner's presence was not necessary for
jurisdiction, nor was it required as a technical necessity or a
matter of right.
The "translation" of these "assumptions" into a holding
involves, under this statute, a decision that these three isolated
statements represent the "usages and principles of law." Those
terms have been in the statute since the original Judiciary Act of
1789, and the Court admits there was no such usage or principle
prior to that time. These three later cases are therefore the only
shadow of a basis for holding that a writ such as the Court now
directs meets the requirements of the statute. To consider such
unauthoritative sources as a precedent on this point would be bad
enough -- but to enlarge them to a usage or principle of law is
even less warranted. Reliance on these isolated pronouncements,
which, either individually or collectively, are far from being
authority on this point, seems close to creating precedents out of
Such depreciation has already set in. See
and Abuse of the Writ of Habeas Corpus," 7 F.R.D. 313, stating, at
315, that, from June, 1937, to June, 1947, 6 prisoners in Alcatraz
filed a total of 68 petitions, while 57 others filed 183 petitions.
Dorsey v. Gill, 80 U.S.App.D.C. 9, 148 F.2d 857,
at 862, 863, stating that, in one five-year period, one prisoner
filed 50 petitions in the District Court for the District of
Columbia; four others filed 27, 24, 22, and 20, respectively; and
119 prisoners filed 597 petitions, an average of 5 each.