Upon reviewing the decision of the Supreme Court of Florida
denying, without opinion, petitioner's petition for a writ of
habeas corpus, in which he claimed, inter alia,
state conviction and imprisonment for stealing cattle violated the
Federal Constitution, it appeared that the judgment of that Court
might have rested on one or both of two adequate state grounds.
the case is dismissed for lack of jurisdiction.
Pp. 351 U. S.
(a) Where the highest court of a State delivers no opinion and
it appears that its judgment might have rested on a nonfederal
ground, this Court will not take jurisdiction to review the
judgment. Stembridge v. Georgia, 343 U.
. Pp. 351 U. S.
(b) The Supreme Court of Florida might have rested its denial of
the petition here involved on either or both of the following
grounds: (1) that the several federal issues presented by it had
been raised previously within the meaning of Fla.Stat.Ann., 1943, §
79.10, and therefore could not be raised again under state
practice; (2) that they could have been raised in the prior
proceedings and, accordingly, were not available as a matter of
state law under Florida decisions. Pp. 351 U. S.
(c) There is nothing in the order of the Supreme Court of
Florida to show that that Court must have decided the case on
federal grounds, rather than on the readily available and
substantial state grounds. Pp. 351 U. S.
Page 351 U. S. 278
MR. JUSTICE BURTON delivered the opinion of the Court.
In this case, our jurisdiction is questioned by the State of
Florida because the judgment of the Supreme Court of that State,
which we are asked to review and which was rendered without
opinion, may have rested upon an adequate state ground. For the
reasons hereafter stated, we find that to be true, with the result
that we have no jurisdiction to entertain this petition or to
consider the merits of the federal questions suggested by
petitioner. While we thus deem petitioner's allegations of fact as
to the merits of this case to be irrelevant here, we imply nothing
as to their truth or falsity, and we refrain from any discussion
that depends upon or assumes their truth.
In 1945, petitioner Durley was convicted by a jury in the
Criminal Court of Record for Polk County, Florida, on two
informations. In each, he was charged, in three counts, with
stealing cattle. [Footnote 1
In the first count of the first information, it was charged that,
on July 7, 1945, petitioner, with two others, stole two steers from
a Mrs. Bronson; in the second count, two cows; and in the third
count, one heifer. The three counts of the other information
charged that the same men, on July 29, 1945, stole from a Mr.
Zipperer a cow and two heifers, each of the animals allegedly
stolen being the subject of a separate count. Petitioner was
sentenced to serve five years' imprisonment on each count, the
terms to be served consecutively, thus making a total of 30
Petitioner did not appeal from his conviction but, in 1949,
labeling his petition a writ of error coram nobis,
Page 351 U. S. 279
unsuccessfully sought relief. In the same year,
also pro se,
he filed a petition for a writ of habeas
corpus in the Supreme Court of Florida claiming that he was
confined in violation of the Fifth Amendment to the Federal
Constitution because he had been tried on informations, rather than
on indictments, that the verdict rested on perjured testimony,
] and that he had
been denied a hearing on his petition for a writ of error coram
This petition for habeas corpus was denied by the
Supreme Court of Florida, without opinion, on the ground that
petitioner failed to show probable cause that he was held without
In 1952, with the aid of court-appointed counsel, petitioner
filed a petition for a writ of habeas corpus in a Florida Circuit
Court. There, he claimed that the informations upon which he had
been convicted charged the commission of only two, rather than six,
offenses, and that he already had served sufficient time to satisfy
a ten-year sentence, which would have been the maximum sentence
permissible for two such offenses. Petitioner also charged that his
imprisonment was in violation of his rights under the Constitution
of the United States. A writ was issued, a return was filed, and
the court heard argument of counsel for each side. The writ was
quashed. Petitioner appealed to the Supreme Court of Florida, where
his appeal was dismissed without opinion.
In 1955, petitioner, again pro se,
present proceeding by filing in the Supreme Court of Florida
another petition for a writ of habeas corpus. In it, he claimed,
that his detention was an "abuse of the Due
Process Clause of the 14th Amendment to the Constitution of the
United States . . . ," and that his consecutive
Page 351 U. S. 280
sentences not only violated the Federal and State Constitutions,
but were contrary to a recent decision of the Supreme Court of
Florida, citing Hearn v. State, 55 So. 2d
. That petition was argued in the Supreme Court of Florida
by counsel for the State, although neither petitioner nor his
counsel was present. The petition was denied without opinion, again
on the ground that petitioner failed to show probable cause that he
was held without lawful authority.
A rehearing was denied, but petitioner's application for a writ
of certiorari was granted by this Court, 350 U.S. 872, and counsel
was appointed by this Court to represent him here, 350 U.S. 900.
The case was fully briefed and argued on the jurisdictional issue
as well as on the merits.
The State of Florida has objected consistently to our
entertaining jurisdiction of this proceeding. Its reason is that
the Florida Supreme Court's denial of the 1955 petition for a writ
of habeas corpus may have rested upon one or both of two adequate
state grounds. Those grounds are (1) that, under Florida law, the
issues presented in 1955 already had been rendered res
by the 1952 litigation, and (2) that, in any event,
petitioner was precluded from raising the federal issues presented
in 1955 because he had failed to raise then in comparable prior
proceedings where he had a fair and adequate opportunity to do
The State's claim as to res judicata
upon Fla.Stat.Ann. 1943., § 79.10, which provides that, while a
judgment denying a petition for a writ of habeas corpus remains in
force, no person
"shall be at liberty to obtain another habeas corpus for the
same cause, or by any other proceeding to bring the same matter
again in question except by a writ of error or by action of false
imprisonment. . . . "
Page 351 U. S. 281
Florida's other state ground is based upon its Supreme Court
decisions, and particularly upon Washington v.
Mayo, 77 So.
, 621. It is there stated that
"The rule is clear that a convicted prisoner should not be heard
to raise in a subsequent proceeding, whatever its nature, issues
that were previously raised and determined, or that the prisoner
had a fair and adequate opportunity to raise and have determined in
In the face of these expressions of the law of Florida,
petitioner, in order to establish our jurisdiction, must
demonstrate that neither of these state grounds can account for the
"Where the highest court of the state delivers no opinion and it
appears that the judgment might have rested upon a nonfederal
ground, this Court will not take jurisdiction to review the
Stembridge v. Georgia, 343 U.
, 343 U. S.
"It is a well established principle of this Court that, before
we will review a decision of a state court, it must affirmatively
appear from the record that the federal question was presented to
the highest court of the State having jurisdiction and that its
decision of the federal question was necessary to its determination
of the cause. Honeyman v. Hanan, 300 U. S.
, 300 U. S. 18
; Lynch v. New
York, 293 U. S. 52
. And where the
decision of the state court might have been either on a state
ground or on a federal ground, and the state ground is sufficient
to sustain the judgment, the Court will not undertake to review it.
13 Wall. 257, 80 U. S.
; Wood Mowing & Reaping Machine Co. v.
Skinner, 139 U. S. 293
, 139 U. S.
; Allen v. Arguimbau, 198 U. S.
, 198 U. S. 154
v. New York, supra.
. . . But it is likewise well settled
that, if the independent [state] ground was not a substantial or
sufficient one, 'it will be presumed that the State court based its
judgment on the law
Page 351 U. S. 282
raising the Federal question, and this court will then take
jurisdiction.' Klinger v. Missouri, supra,
13 Wall. at
80 U. S. 263
; Johnson v.
Risk, 137 U. S. 300
, 137 U. S.
; Lawrence v. State Tax Commission,
286 U. S.
, 286 U. S. 282
Williams v. Kaiser, 323 U. S. 471
323 U. S.
While the federal questions relied upon by petitioner in 1955
are not set forth by him as clearly as they might be, we do not
rely upon that inadequacy. [Footnote 3
Petitioner argues that § 79.10 does not embody the traditionally
broad doctrine of res judicata.
He suggests that the
statute bars only the relitigation of questions and matters that
have been specifically presented and decided. By thus construing §
79.10, he argues that none of the precise federal issues raised in
the 1955 petition were sufficiently raised and considered under his
previous petitions. However, the Supreme Court of Florida has
treated § 79.10 as applying the general rule of res
judicata. See State ex rel. Cacciatore v. Drumbright,
116 Fla. 496, 156 So. 721; Florida ex rel. Williams v.
110 Fla. 261, 148 So. 533; D'Alessandro v.
102 Fla. 10, 137 So. 231. It even has applied that
doctrine without reference to § 79.10. See Florida ex rel.
Davis v. Hardie,
108 Fla. 133, 146 So. 97. On the other hand,
it has at times, treated habeas corpus petitions as barred by §
79.10 only where the issues have been raised and decided in a prior
proceeding. See Moat v. Mayo,
82 So. 2d 591; Lee v.
42 So. 2d 49; Pope v. Mayo,
39 So. 2d 286;
Page 351 U. S. 283
compare Florida ex rel. Williams v. Prescott, supra; Florida
ex rel. Davis v. Hardie, supra.
In its more recent cases, the Supreme Court of Florida has held
that, on an original application for habeas corpus, the petitioner
may not raise issues that have been raised in prior proceedings
whatever those may have been. Also that, unless he can show good
reason for his failure to do so, he is precluded from raising
issues which he could have raised in any such prior proceedings.
Washington v. Mayo, 77 So.
; Irvin v. Chapman, 75 So.
; State ex rel. Johnson v. Mayo, 69 So. 2d
. [Footnote 4
arguing before us that the issues now raised were or were not
raised in prior proceedings, the parties have relied somewhat upon
cases from this Court to support their arguments. Those decisions
are not squarely in point, because
Page 351 U. S. 284
the issue before us is not one of federal law. The issue before
us on res judicata
is whether, under Florida law,
petitioner was or was not free to raise in the Supreme Court of
Florida in 1955 the questions he attempted to raise there. We
conclude that the Supreme Court of Florida might have rested its
denial of the 1955 petition on the grounds that the several federal
issues presented to it in 1955 had been previously raised within
the meaning of § 79.10, and, therefore, could not be raised again
under the state practice, or at least could have been raised in the
prior proceedings and, accordingly, under the above decisions, they
likewise were not available as a matter of state law. [Footnote 5
Petitioner further suggests that, under Florida law, the
doctrine of res judicata
will "not be so rigidly applied
as to defeat the ends of justice." Universal Construction Co.
v. City of Fort Lauderdale, 68 So. 2d
, 369. Relying on that case, petitioner argues that the
application of res judicata
is within the discretion of
the court, but that case does not provide the necessary authority
for that conclusion. In that case, the Supreme Court of Florida,
exercising traditional common law and equitable powers, created an
exception to the common law doctrine of res judicata
because of an "unusual situation" confronting it. Id.,
So. 2d at 370. The question before us is whether, under the facts
of this case, the Supreme Court of Florida must necessarily read a
similar exception into an Act of the legislature. We find no
authoritative basis for doing so.
Finally, it is suggested that the order of the Florida court
denying the 1955 petition shows affirmatively that the court
decided the petition on the merits of the federal questions raised.
We do not so read it. At most, it is
Page 351 U. S. 285
inconclusive, and leaves room for a decision on the state
grounds indicated in § 79.10 or by Washington v. Mayo,
The language of the order is that petitioner "failed to
show . . . probable cause to believe that he is detained in custody
without lawful authority. . . ." That is stated in the standard
form used in habeas corpus proceedings. We find nothing on its face
showing that the court must have decided the case on federal
grounds, rather than on the readily available and substantial state
Inasmuch as the Supreme Court of Florida's denial of the 1955
petition might have rested on either of the state grounds now
suggested by the State, petitioner has failed to establish our
jurisdiction to decide the federal issues that he urges upon us. He
has not shown that they have been passed upon by the highest court
of his State.
For lack of jurisdiction, the case, therefore, must be
"811.11 Horse or cattle stealing"
"Whoever commits larceny by stealing any horse, mule, mare,
filly, colt, cow, bull, ox, steer, heifer or calf, the property of
another, shall be punished by imprisonment in the state prison not
less than two years nor more than five years."
There was no allegation in this or the subsequent petition that
the prosecution knowingly used perjured testimony, as in Mooney
v. Holohan, 294 U. S. 103
The 1955 petition for habeas corpus and the petition for
certiorari to this Court were drafted by petitioner. In similar
circumstances, this Court has held that,
"where the substance of the claim is clear, we should not insist
upon more refined allegations than [such a person] could be
expected to supply."
Tomkins v. Missouri, 323 U. S. 485
323 U. S. 487
Rice v. Olson, 324 U. S. 786
324 U. S.
-792; Holiday v. Johnson, 313 U.
, 313 U. S. 350
Florida follows the same practice. Ex parte Amos,
5, 12, 112 So. 289, 292; Chase v. Florida ex rel. Burch,
93 Fla. 963, 968, 113 So. 103, 106.
While it is true that, in the Johnson
cases, the issues sought to be raised in the habeas
corpus proceeding could have been raised on direct appeal, the
court held that the writ was not available, because the petitioners
had failed to raise those issues in "prior proceeding." These
included a writ of error coram nobis
and a previous trial on the merits in Irvin.
It is suggested that the Washington
case does not
preclude this Court from taking jurisdiction, because, in that
case, the court, while stating the rule that would preclude
jurisdiction, did consider on its merits a nonfederal contention
which had not been previously raised. But, assuming that the
contention so considered had involved a substantial federal
question, this Court would have lacked jurisdiction to review the
judgment, for the reason that it might have rested upon the
adequate state ground. For our purposes, therefore, the discussion
of the merits in that case may be treated as dicta.
Furthermore, the contention considered on its merits in the
case "apparently was not raised upon the
earlier proceeding. . . ." 77 So. 2d at 622. In the instant case,
the perjury issue was presented in the 1949 petition, although not
in terms of a federal constitutional issue. The Washington
case, therefore, is certainly no authority for a conclusion in the
instant case that any issues growing out of the previously raised
issue, that the conviction rested upon perjured testimony, could be
raised in the proceeding which is before us.
Our discussion of the Florida law is solely for the purpose of
determining whether the test for our jurisdiction is met. We do not
intimate that, under that law, petitioner is foreclosed from
seeking any further remedial process that may be open to him.
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE, MR. JUSTICE
BLACK and MR. JUSTICE CLARK, concur, dissenting.
Petitioner is a prisoner in the Florida State Prison, serving a
total sentence of 30 years for cattle stealing. In February, 1955,
he filed a petition for a writ of habeas corpus in the Supreme
Court of Florida. That court denied the petition without affording
petitioner a hearing and without requiring a response from
respondent, the custodian of the prison. A timely motion for
rehearing was also denied. We granted certiorari. 350 U.S. 872.
In these circumstances, the allegations of the petition must be
accepted as true for purposes of review. See Hawk v.
Olson, 326 U. S. 271
326 U. S. 273
Williams v. Kaiser, 323 U. S. 471
323 U. S.
-474. If they are taken as true, we have a shocking
case of miscarriage of justice.
Page 351 U. S. 286
In 1945, the County Solicitor for Polk County, Florida, filed
two informations charging petitioner and two codefendants, R. B.
Massey, Jr., and Charles Bath, with six offenses of stealing
cattle, each information containing three separate counts. The
first count of the first information charged that the three
defendants, on July 7, 1945, stole two steers belonging to Mrs.
Edna P. Bronson; the second count charged that the three
defendants, on July 7, 1945, stole two cows belonging to Mrs.
Bronson; and the third count charged that, on July 7, 1945, they
stole one heifer belonging to Mrs. Bronson. In the second
information, the first count charged that the three defendants, on
July 29, 1945, stole one cow belonging to William C. Zipperer; the
second count charged that the three defendants, on July 29, 1945,
stole one heifer belonging to Mr. Zipperer; and the third count
charged that, on the same day, the defendants stole one heifer
belonging to Mr. Zipperer. The second and third counts of the
second information are virtually identical.
At the trial, petitioner asserted his innocence. His two
codefendants, however, admitted their guilt and implicated
petitioner. Their testimony was the only evidence liking petitioner
with the crimes charged. All three were convicted. Bath apparently
received a sentence of two years' imprisonment, and Massey, 26
years. Petitioner, 53 years old at the time and never before
accused of dishonesty, was sentenced to five years' imprisonment on
each of the 6 counts, each sentence to be served consecutively,
making a total sentence of 30 years. Petitioner, now 63 years old,
has served more than 10 years of his sentence.
In May, 1949, petitioner, without the assistance of counsel,
prepared a petition for writ of habeas corpus and filed it in the
Supreme Court of Florida. The petition was inartistically drawn.
Petitioner contended that his trial on a bill of information,
rather than on a grand
Page 351 U. S. 287
jury indictment violated the Fifth Amendment of the United
States Constitution. Secondly, he contended that
"he is innocent of said offense, and is falsely imprisoned by
reason that verdict of guilty was wholly supported by prejudge
] and perjured testimony."
Accompanying the petition was an affidavit by one J. E. Croft
relating a prison conversation he had with Bath, the codefendant
who received the relatively light sentence of two years'
imprisonment. According to this affidavit, Bath told Croft that
petitioner was completely innocent. Bath described an agreement
which he and codefendant Massey had made before they embarked on
their cattle-stealing ventures. They agreed that, if they were
caught, they would say they were working for petitioner, for whom
they had worked as laborers on other occasions. Bath explained
that, by naming petitioner, they had hoped to be "passed up" and
given a chance to get out of the country.
In addition to the Croft affidavit, the habeas corpus petition
was accompanied by an affidavit signed and sworn to by Massey. He
recanted his trial testimony, clearing petitioner of all
responsibility for the stolen cattle. Massey stated that his story
implicating petitioner "was a falsehood, and that I gave such
testimony hoping that it would aid me when my case came up." The
affidavit concluded, "Before God is my judge, Dan Durley, never had
anything to do with any cattle stealing that I testified to at the
The Supreme Court of Florida denied the 1949 petition for a writ
of habeas corpus on the ground that petitioner had failed to show
probable cause that his detention was unlawful. It should be noted
that the 1949 petition did not assert that the use of perjured
testimony deprived petitioner of a federal constitutional
In January, 1952, petitioner filed a second habeas corpus
petition in the Circuit Court of Union County, Florida,
Page 351 U. S. 288
this time assisted by court-appointed counsel. He contended that
the six 5-year sentences amounted to double jeopardy because the
two informations upon which he was convicted charged him in
substance with no more than two offenses, each of which carried a
maximum penalty of 5 years, and that petitioner had already served
sufficient time to satisfy a 10-year sentence. He made a general
claim that his imprisonment was "in direct violation of his rights
as set out in the Constitution of the United States." There was no
mention of the perjured testimony issue. After argument, the
Circuit Court of Union County quashed the writ. An appeal to the
Supreme Court of Florida was dismissed.
The basis of the present litigation is the habeas corpus
petition filed in the Florida Supreme Court in February, 1955.
Petitioner prepared it without the aid of counsel. The petition
repeats the double jeopardy contention, as well as the charge that
he was convicted solely on the basis of perjured testimony,
coupling these allegations with a claim that his imprisonment
deprives him of liberty "in violation of his Constitutional Rights
afforded him by the Florida and the Constitution of the United
States of America." His federal constitutional arguments were
elaborated in the motion for rehearing. Petitioner's claim that it
violates due process to let his conviction stand solely on perjured
testimony was raised for the first time in the 1955 habeas corpus
petition -- the one now under consideration. [Footnote 2/1
The Court dismisses the case on the ground that the Florida
Supreme Court order denying habeas corpus might have rested on an
adequate state ground -- res judicata.
Page 351 U. S. 289
The Court concludes that, under Florida law, petitioner is
barred from raising federal issues in the 1955 habeas corpus
proceeding because he had raised them or at least had a fair and
adequate opportunity to raise them in prior habeas corpus
proceedings. The Court strangely relies on Washington v.
Mayo, 77 So. 2d
. That case involved a habeas corpus petition in which two
contentions were raised. The first contention had been expressly
raised and decided in a previous habeas corpus proceeding. The
second contention, however, had not been raised previously. This
contention was decided on the merits by the Florida Supreme Court
even though the petitioner "has not shown that he did not have a
fair and adequate opportunity to raise and have it determined."
77 So. 2d at 622.
Johnson v. Mayo, 69 So. 2d
, and Irvin v. Chapman, 75 So. 2d
, also relied on by the Court, are not in point. In both
cases, the Florida Supreme Court held that an issue that could have
been raised on direct appeal from the conviction could not be
litigated in subsequent habeas corpus proceedings. [Footnote 2/2
] Those cases did not involve the
question now before us -- whether prior habeas corpus proceedings
bar the litigation of issues which could not have been raised on
direct appeal from the conviction. [Footnote 2/3
The Florida Supreme Court has expressly dismissed a number of
habeas corpus proceedings on the ground that former habeas corpus
adjudications were res judicata.
Page 351 U. S. 290
But, in those cases, the habeas corpus petitions attempted to
relitigate issues which had been expressly presented and decided in
the previous habeas corpus proceedings. See Moat v. Mayo,
82 So. 2d 591; Pope v. Mayo,
39 So. 2d 286; State ex
rel. Williams v. Prescott,
110 Fla. 261, 148 So. 533.
is not a rigid doctrine in Florida. The
Supreme Court recently refused to apply it where to do so would
"defeat the ends of justice." Universal Const. Co. v. City of
Ft. Lauderdale, 68 So. 2d
, 369. [Footnote 2/4
the facts alleged by petitioner are conceded, as they must be on
the present record, it defeats the ends of justice to deny relief
The language of the Florida Supreme Court's order in the present
case indicates that petitioner's federal constitutional claims were
rejected not on grounds of res judicata,
but on their
merits. The petition was denied because of failure to show
"probable cause to believe that [petitioner] is detained in custody
without lawful authority." Faced with a similar state court order
in Williams v. Kaiser, supra,
at 323 U. S. 478
"The denial of the petition on the grounds that it fails to
state a cause of action strongly suggests that it was denied
because there was no cause of action based on the federal
We should hold the same in the present case.
Once we reach the merits, the answer seems clear. It is well
settled that, to obtain a conviction by the use of
Page 351 U. S. 291
testimony known by the prosecution to be perjured offends due
process. Mooney v. Holohan, 294 U.
; Pyle v. Kansas, 317 U.
. While the petition did not allege that the
prosecution knew that petitioner's codefendants were lying when
they implicated petitioner, the State now knows that the testimony
of the only witnesses against petitioner was false. No competent
evidence remains to support the conviction. Deprivation of a
hearing under these circumstances amounts, in my opinion, to a
denial of due process of law.
Perhaps a hearing on the charges would dispel them. But, on the
present record, we have a grave miscarriage of justice involving an
invasion of federal rights guaranteed by the Fourteenth
In the 1949 petition, petitioner argued that the testimony was
perjured, but he did not present this as a federal question. The
1952 petition did not mention the perjured testimony issue.
The Florida Supreme Court stated the rationale of these
decisions as follows:
"It is elementary that a writ of habeas corpus cannot be used as
a substitute for appeal, motion to quash or a motion in arrest of
Johnson v. Mayo,
69 So. 2d at 308.
Petitioner's claim of a denial of federal rights because his
conviction is based solely on perjured testimony obviously could
not have been raised on direct appeal. He did not obtain the
affidavits showing that the witnesses had lied until long after the
time to appeal his conviction had expired.
"The basic principle upon which the doctrine of res
rests is that there should be an end to litigation,
and that, 'in the interest of the State,
controversy should be settled in one action, in order that the
courts and the parties will not be bothered for the same cause by
interminable litigation.' 59 So. 2d at 44; italics supplied.
Nevertheless, when a choice must be made, we apprehend that the
State, as well as the courts, is more interested in the fair and
proper administration of justice than in rigidly applying a fiction
of the law designed to terminate litigation."
68 So. 2d at 369.