West Virginia's habitual criminal statute provides for a
mandatory life sentence upon the third conviction "of a crime
punishable by confinement in a penitentiary." The increased penalty
is to be invoked by an information filed by the prosecuting
attorney "immediately upon conviction and before sentence." In such
proceedings, in which they were represented by counsel and did not
request continuances or raise any matters in defense, but did
concede the applicability of the statute to the circumstances of
their cases, petitioners were sentenced to life imprisonment.
Subsequently they petitioned the State Supreme Court for writs of
habeas corpus, alleging that the Act had been applied without
advance notice and to only a minority of those subject to its
provisions, in violation of the Due Process and Equal Protection
Clauses of the Fourteenth Amendment. Their petitions were
1. Due process does not require advance notice that the trial on
the substantive offense will be followed by an habitual criminal
accusation. It does require a reasonable opportunity to defend
against such an accusation, but the records show that petitioners
were not denied such an opportunity. Pp. 368 U. S.
2. The failure to proceed against other offenders because of a
lack of knowledge of prior offenses or because of the exercise of
reasonable selectivity in enforcement does not deny equal
protection to persons who are prosecuted, and petitioners did not
allege that the failure to prosecute others was due to any other
reason. Pp. 368 U. S.
Page 368 U. S. 449
MR. JUSTICE CLARK delivered the opinion of the Court.
The petitioners in these consolidated cases are serving life
sentences imposed under West Virginia's habitual criminal statute.
This Act provides for a mandatory life sentence upon the third
conviction "of a crime punishable by confinement in a
penitentiary." [Footnote 1
increased penalty is to be invoked by an information filed by the
prosecuting attorney "immediately upon conviction and before
sentence." [Footnote 2
Alleging that this Act had been applied without advance notice and
to only a minority of those subject to its provisions, in violation
respectively of the Due Process and Equal Protection Clauses of the
Fourteenth Amendment, the petitioners filed separate petitions for
writs of habeas corpus in the Supreme Court of Appeals of West
Virginia. Both of their petitions were denied without opinion.
Unlike Chewning v. Cunningham, ante,
p. 368 U. S. 443
here, each of the petitioners was represented by counsel at the
time he was sentenced. Finding the cases representative of the many
recidivist cases that have been docketed in this Court the past few
Terms, we granted certiorari. 365 U.S. 810. We now affirm the
judgment in each case.
William Oyler, the petitioner in No. 56, was convicted of murder
in the second degree on February 5, 1953, which offense carried a
penalty of from 5 to 18 years' imprisonment. Sentence was deferred,
and on February 11, his motion for a new trial was overruled. On
that same date,
Page 368 U. S. 450
the Prosecuting Attorney requested and was granted leave to file
an information in writing alleging that Oyler was the same person
who had suffered three prior convictions in Pennsylvania which were
punishable by confinement in a penitentiary. After being cautioned
as to the effect of such information, Oyler, accompanied by his
counsel, acknowledged in open court that he was the person named in
the information. The court then determined that the defendant had
thrice been convicted of crimes punishable by confinement in a
penitentiary, and sentenced him to life imprisonment. In so doing,
the court indicated that the life sentence was mandatory under the
statute, and recommended that Oyler be paroled as soon as he was
eligible. In 1960, Oyler filed a habeas corpus application in the
Supreme Court of Appeals alleging a denial of due process under the
Fourteenth Amendment in that he had not been given advance notice
of his prosecution as a recidivist, which prevented him from
showing the inapplicability of the habitual criminal law. The
statute was alleged to be inapplicable because he had never been
sentenced to imprisonment in a penitentiary, although he had been
convicted of crimes subjecting him to the possibility of such
sentence. [Footnote 3
] He also
attacked his sentence on the equal protection ground previously set
In 1957, Paul Crabtree, the petitioner in No. 57, pleaded guilty
to forging a $35 check, which offense carried a penalty of from 2
to 10 years' imprisonment. Sentence was deferred, and, a week
later, the Prosecuting Attorney informed the court that Crabtree
had suffered two previous felony convictions, one in the State of
Washington and one in West Virginia. The trial judge, after
cautioning Crabtree of the effect of the information and
Page 368 U. S. 451
his rights under it, inquired if he was in fact the accused
person. Crabtree, who had been represented by counsel throughout,
admitted in open court that he was such person. Upon this admission
and the accused's further statement that he had nothing more to
say, the court proceeded to sentence him to life imprisonment. In
1960, Crabtree sought habeas corpus relief in the Supreme Court of
Appeals, claiming denial of due process because of the absence of
notice which prevented him from showing he had never been convicted
in Walla Walla County, Washington, as had been alleged in the
information. [Footnote 4
Oyler, he also raised the equal protection ground.
Petitioners recognize that the constitutionality of the practice
of inflicting severer criminal penalties upon habitual offenders is
no longer open to serious challenge; [Footnote 5
] however, they contend that, in West Virginia,
such penalties are being invoked in an unconstitutional manner. It
is petitioners' position that procedural due process under the
Fourteenth Amendment requires notice of the habitual criminal
accusation before the trial on the third
Page 368 U. S. 452
offense, or at least in time to afford a reasonable opportunity
to meet the recidivist charge.
Even though an habitual criminal charge does not state a
separate offense, the determination of whether one is an habitual
criminal is "essentially independent" of the determination of guilt
on the underlying substantive offense. Chandler v. Fretag,
348 U. S. 3
348 U. S. 8
(1954). Thus, although the habitual criminal issue may be combined
with the trial of the felony charge, "it is a distinct issue, and
it may appropriately be the subject of separate determination."
Graham v. West Virginia, 224 U. S. 616
224 U. S. 625
(1912). If West Virginia chooses to handle the matter as two
separate proceedings, due process does not require advance notice
that the trial on the substantive offense will be followed by an
habitual criminal proceeding. [Footnote 6
] See Graham v. West Virginia,
Nevertheless, a defendant must receive reasonable notice and an
opportunity to be heard relative to the recidivist charge even if
due process does not require that notice be given prior to the
trial on the substantive offense. Such requirements are implicit
within our decisions in Chewning v. Cunningham, supra; Reynolds
v. Cochran, 365 U. S. 525
(1961); Chandler v. Fretag, supra.
Although these cases
were specifically concerned with the right to assistance of
counsel, it would have been an idle accomplishment to say that due
process requires counsel, but not the right to reasonable notice
and opportunity to be heard.
As interpreted by its highest court, West Virginia's recidivist
statute does not require the State to notify the
Page 368 U. S. 453
defendant prior to trial on the substantive offense that
information of his prior convictions will be presented in the event
he is found guilty. [Footnote
] Thus, notice of the State's invocation of the statute is
first brought home to the accused when, after conviction on the
substantive offense but before sentencing, the information is read
to him in open court, as was done here. At this point, petitioners
were required to plead to the information. The statute expressly
provides for a jury trial on the issue of identity if the accused
either denies he is the person named in the information or just
remains silent. [Footnote
But the petitioners, who were represented by counsel, neither
denied they were the persons named nor remained silent. Nor did
they object or seek a continuance on the ground that they had not
received adequate notice and needed more time to determine how to
respond with respect to the issue of their identity. Rather, both
petitioners rendered further inquiry along this line unnecessary by
their acknowledgments in open court that they were the same persons
who had previously been convicted. In such circumstances, the
petitioners are in no position now to assert that they were not
given a fair opportunity to respond to the allegations as to their
They assert, however, that they would have raised other defenses
if they had been given adequate notice of the recidivist charges.
It is, of course, true that identity is not the only issue
presented in a recidivist proceeding, for, as pointed out by Mr.
Justice Hughes (later Chief Justice) when this Court first reviewed
West Virginia's habitual criminal law, this statute contemplates
valid convictions which have not been subsequently nullified.
Graham v. West Virginia, supra.
A list of the more obvious
Page 368 U. S. 454
would also include such matters as whether the previous
convictions are of the character contemplated by West Virginia's
statute and whether the required procedure has been followed in
invoking it. Indeed, we may assume that any infirmities in the
prior convictions open to collateral attack could have been reached
in the recidivist proceedings, either because the state law so
permits [Footnote 9
] or due
process so requires. But this is a question we need not and do not
decide, for neither the petitioners nor their counsel attempted
during the recidivist proceedings to raise the issues which they
now seek to raise or, indeed, any other issues. They were not,
therefore, denied the right to do so. The petitioners' claim that
they were deprived of due process because of inadequate opportunity
to contest the habitual criminal accusation must be rejected in
these cases. Each of the petitioners had a lawyer at his side, and
neither the petitioners nor their counsel sought in any way to
raise any matters in defense or intimated that a continuance was
needed to investigate the existence of any possible defense. On the
contrary, the record clearly shows that both petitioners personally
and through their lawyers conceded the applicability of the law's
sanctions to the circumstances of their cases.
Petitioners also claim they were denied the equal protection of
law guaranteed by the Fourteenth Amendment. In his petition for a
writ of habeas corpus to the Supreme Court of Appeals of West
Virginia, Oyler stated:
"Petitioner was discriminated against as an Habitual Criminal in
that from January, 1940, to
Page 368 U. S. 455
June, 1955, there were six men sentenced in the Taylor County
Circuit Court who were subject to prosecution as Habitual
offenders, Petitioner was the only man thus sentenced during this
period. It is a matter of record that the five men who were not
prosecuted as Habitual Criminals during this period, all had three
or more felony convictions and sentences as adults, and
Petitioner's former convictions were a result of Juvenile Court
"* * * *"
"#5. The Petitioner was discriminated against by selective use
of a mandatory State Statute, in that 904 men who were known
offenders throughout the State of West Virginia were not sentenced
as required by the mandatory Statutes, Chapter 61, Article 11,
Sections 18 and 19 of the Code. Equal Protection and Equal Justice
Statistical data based on prison records were appended to the
petition to support the latter allegation. Crabtree in his petition
included similar statistical support and alleged:
"The said Statute are [sic
] administered and applied in
such a manner as to be in violation of Equal Protection and Equal
Justice therefor in conflict with the Fourteenth Amendment to the
Constitution of the United States."
Thus, petitioners' contention is that the habitual criminal
statute imposes a mandatory duty on the prosecuting authorities to
seek the severer penalty against all persons coming within the
statutory standards, but that it is done only in a minority of
cases. [Footnote 10
Page 368 U. S. 456
argue, denies equal protection to those persons against whom the
heavier penalty is enforced. We note that it is not stated whether
the failure to proceed against other three-time offenders was due
to lack of knowledge of the prior offenses on the part of the
prosecutors or was the result of a deliberate policy of proceeding
only in a certain class of cases or against specific persons. The
statistics merely show that, according to penitentiary records, a
high percentage of those subject to the law have not been proceeded
against. There is no indication that these records of previous
convictions, which may not have been compiled until after the
three-time offenders had reached the penitentiary, were available
to the prosecutors. [Footnote
] Hence ,the allegations set out no more than a failure to
prosecute others because of a lack of knowledge of their prior
offenses. This does not deny equal protection due petitioners under
the Fourteenth Amendment. See Sanders v. Waters,
317 (C.A. 10th Cir. 1952); Oregon v. Hicks,
213 Or. 619,
Moreover, the conscious exercise of some selectivity in
enforcement is not in itself a federal constitutional violation.
Even though the statistics in this case might imply a policy of
selective enforcement, it was not stated that the selection was
deliberately based upon an unjustifiable standard such as race,
religion, or other arbitrary classification. Therefore, grounds
supporting a finding of a denial of equal protection were not
alleged. Oregon v. Hicks, supra; cf. Snowden v. Hughes,
321 U. S. 1
Yick Wo v. Hopkins, 118 U. S. 356
(1886) (by implication).
The other points raised by petitioners, such as the misstatement
of the Washington county in which Crabtree
Page 368 U. S. 457
was convicted and the fact that Oyler actually served in a
Pennsylvania correctional home, rather than a penitentiary, all
involve state questions with which we are not concerned. Since the
highest court of West Virginia handed down no opinion, we do not
know what questions its judgment foreclosed. If any remain open,
our judgment would not affect a test of them in appropriate state
* Together with No. 57, Crabtree v. Bole, Warden,
on certiorari to the same Court.
W.Va.Code, 1961, § 6130.
W.Va.Code, 1961, § 6131.
The statute has been interpreted as requiring only that the
previous convictions be such that imprisonment in a penitentiary
could have been imposed. State ex rel. Johnson v. Skeen,
140 W.Va. 896, 87 S.E.2d
The record indicates that, instead of in Walla Walla, Crabtree
was convicted in Yakima County, Washington. At the time he was
sentenced as a habitual criminal, he admitted that he had
previously been sentenced to imprisonment in the State of
Washington for a term of 20 years.
E.g., Moore v. Missouri, 159 U.
(1895). West Virginia's statute is a carryover
from the laws of Virginia, Va.Code, 1860, c. 199, §§ 25-26, and
became its law when West Virginia was organized as a separate
State. Since that time, it has remained basically the same, save
for a 1943 procedural amendment which provided that the statute
should be invoked by information filed after conviction, rather
than by allegation in the indictment upon which the subject was
being prosecuted for a substantive offense. In 1912, this Court
upheld the constitutionality of the statute. Graham v. West
Virginia, 224 U. S. 616
Any other rule would place a difficult burden on the imposition
of a recidivist penalty. Although the fact of prior conviction is
within the knowledge of the defendant, often this knowledge does
not come home to the prosecutor until after the trial, and, in many
cases, the prior convictions are not discovered until the defendant
reaches the penitentiary.
West Virginia v. Blankenship,
137 W.Va. 1, 69 S.E.2d
W.Va.Code, 1961, § 6131.
The fact that the statute expressly provides for a jury trial on
the issue of identity and is silent as to how other issues are to
be determined does not foreclose the raising of issues other than
identity. This is especially clear in the case of legal issues,
such as the petitioners now raise, where a jury trial would be
The denial of relief by West Virginia's highest court may have
involved the determination that the statute, like its counterpart §
6260, infra, note
is not mandatory. Such an interpretation would be binding
upon this Court. However, we need not inquire into this point.
After prisoners are confined in the penitentiary, the warden is
granted discretion as to the invocation of the severer penalty.
W.Va.Code, 1961, § 6260. Thus, the failure to invoke the penalty in
the cases cited by petitioners may reflect the exercise of such
MR. JUSTICE HARLAN, concurring.
I join the Court's opinion in Oyler v. Boles
Crabtree v. Boles,
Nos. 56 and 57, and concur in the
result in Chewning v. Cunningham,
No. 63, ante,
p. 368 U. S. 443
In my view, the issues decided in Oyler
on the one hand, and in Chewning,
the other, represent opposite sides of the same coin. Since their
interrelationship does not appear from the opinions of the Court,
and since I cannot agree with the grounds of decision stated in
I file this separate opinion.
The statutes of both Virginia and West Virginia provide for
enhanced punishment of multiple offenders. Apparently under the
practice of neither State is the alleged recidivist given advance
notice, either before the trial for his latest offense or after
that trial but before sentencing, of the charges that are made in
the multiple-offense accusation. It is not until he appears in open
court and hears the prosecutor's information read to him that the
accused learns on which convictions it is that the State relies in
support of its demand for an increased sentence. And it is then and
there that he must plead and state what his defense is, if he has
any. This procedure was followed in each of the present cases.
For an individual unrepresented by counsel, this is surely too
precipitous a procedure to satisfy the standards of fairness
required of state courts by the Due Process
Page 368 U. S. 458
Clause of the Fourteenth Amendment. In re Oliver,
333 U. S. 257
333 U. S. 273
see Williams v. New York, 337 U.
, 337 U. S. 245
Cole v. Arkansas, 333 U. S. 196
333 U. S. 201
One who is untutored in the law cannot help but be bewildered by
this sudden presentation of the charges against him and the demand
for an immediate response. Without suggesting that advance notice
of any particular duration must be afforded, still less that such
notice must be given before trial or sentencing on the latest
offense, had the petitioners in Oyler and Crabtree been without the
aid of counsel at their multiple-offender hearings, I would
entertain grave doubts as to the constitutionality of the procedure
from which their increased sentences resulted.
But the records in these cases reveal that both Oyler and
Crabtree had counsel at hand when the multiple-offender hearing was
held and when they were asked to plead. Counsel could have
requested a continuance in order to look into the validity of the
previous convictions or other possible defenses to the recidivist
charges, or, if there was any doubt, to establish the identities of
the previous offenders. They chose not to do so, and I think this
choice forecloses the petitioners' claims that they were not given
adequate notice and opportunity to prepare a defense.
however, the petitioner had no counsel. He
was taken from the state penitentiary without any warning of what
was in store for him, and was accused in open court of having been
convicted on three prior occasions. His allegations that he
requested the assignment of counsel, and that such request was
denied, are not controverted. [Footnote
Page 368 U. S. 459
The Court strikes down the enhanced sentence, despite the
apparent similarity between this claim and the one rejected in
Gryger v. Burke, 334 U. S. 728
because it holds that various defenses that were available to
Chewning under Virginia law could not have been known to or
presented by a layman. To me, the bare possibility that any of
these improbable claims could have been asserted does not amount to
the "exceptional circumstances" which, under existing law,
e.g., Betts v. Brady, 316 U. S. 455
must be present before the Fourteenth Amendment imposes on the
State a duty to provide counsel for an indigent accused in a
noncapital case. Nor do I think that a decision on these grounds
can be reconciled with the holding in Gryger,
in which the
Court rejected the proposition, made by able appointed counsel,
that certain contentions, much like those here suggested by the
Court, could have been offered had the petitioner in that case been
provided with counsel for his multiple-offender hearing.
What does distinguish this case from Gryger,
and persuades me that the failure to supply assistance of counsel
amounted to a denial of the procedural fairness assured by the
Fourteenth Amendment, is the want of adequate notice in advance of
the hearing. In Gryger,
a copy of the information listing
the prior occasions on which the accused had been convicted was
served upon him more than six and a half months before he was
brought into court and asked to plead. This was more than ample
time for him to engage an attorney, request assignment of counsel,
or decide for himself what line of defense to take. [Footnote 2/2
] In the case before us now,
Page 368 U. S. 460
was given no such opportunity. Hence, I agree that the least
that fairness required was that he be provided with counsel so as
to be advised of the courses available to him. With no opportunity
to get such advice, I do not think that his own failure to ask for
a continuance has any legal significance.
Although petitioner did not allege in his habeas corpus petition
that he was indigent at the time of the recidivist hearing, the
state court apparently proceeded on the assumption that he had met
the necessary poverty standard.
It is true that a subsidiary claim in Gryger
the petitioner had been denied access to legal materials which were
necessary in the preparation of his defense. But he was at least
able to reflect calmly on the factual accusation being made against
him, and was able to plan in advance what plea to enter and how
best to present his case.
MR. JUSTICE DOUGLAS, with whom The Chief Justice, MR. JUSTICE
BLACK, and MR. JUSTICE BRENNAN concur, dissenting.
When this Court, years ago, sustained an application of West
Virginia's habitual criminal law, it said:
"Full opportunity was accorded to the prisoner to meet the
allegation of former conviction. Plainly, the statute contemplated
a valid conviction which had not been set aside or the consequences
of which had not been removed by absolute pardon. No question as to
this can be raised here, for the prisoner in no way sought to
contest the validity or unimpaired character of the former
judgments, but pleaded that he was not the person who had thus been
convicted. On this issue, he had due hearing before a jury."
Graham v. West Virginia, 224 U.
, 224 U. S.
The issue now presented is broader. It is what the procedure
used in making a charge that a person is an habitual criminal is
necessary to satisfy the requirements of due process.
It is said that the record fails to show that this precise point
was raised at the trial. If so, West Virginia might make that an
adequate state ground, though it should be noted in passing that
the court in Rhea v. Edwards, 136 F.
238 F.2d 850, held that Tennessee's
former procedure in habitual offender cases violated due process
where inadequate notice was given, even though
Page 368 U. S. 461
the accused apparently had not made this an issue at the trial.
Cf. Terminiello v. Chicago, 337 U. S.
. In these cases, however, West Virginia nowhere
suggests that the issue of due process is not properly here.
Rather, the argument is that the requirements of due process are
satisfied though the issue to be tried is restricted to the
identity of the accused.
A hearing under these habitual offender statutes requires "a
judicial hearing" in order to comport with due process.
Chandler v. Fretag, 348 U. S. 3
348 U. S. 8
case held that denial of an opportunity for an
accused to retain a lawyer to represent him deprives him of due
process. And see Chewning v. Cunningham, ante,
368 U. S. 443
due process is to be satisfied, the full procedural panoply of the
Bill of Rights, so far as notice and an opportunity to defend are
concerned, must be afforded the accused. The charge of being an
habitual offender is as effectively refuted by proof that there was
no prior conviction or that the prior convictions were not
penitentiary offenses as by proof that the accused is not the
person charged with the new offense. The charge of being an
habitual offender is also effectively refuted by proof that the
prior convictions were not constitutionally valid, as, for example,
where one went to trial without a lawyer under circumstances where
the appointment of someone to represent him was a requirement of
due process. Denial or absence of counsel is an issue raisable on
collateral attack of state judgments. Williams v. Kaiser,
323 U. S. 471
That is an inquiry that should also be permitted in these habitual
offender cases, if the procedure employed is to satisfy due
I mention the right of counsel merely to underline the gravity
of these accusations. Unless any infirmities in the prior
convictions that can be reached on collateral
Page 368 U. S. 462
attack [Footnote 3/1
] can be
reached in these proceedings, the wrong done is seriously
As I understand it, the opinion of the Court concedes as much.
But it affirms the convictions, even though no prior notice of the
habitual offender charge was given. Without any advance warning,
the present informations were filed at times when petitioners were
in court in connection with their most recent convictions. The
omission of formal notice has been held fatal in proceedings under
recidivist statutes. United States ex rel. Collins v.
204 F.2d 624; Edwards v. Rhea,
238 F.2d 850.
I think reasonable prior notice is necessary to satisfy due process
-- notice given far enough in advance to allow for an opportunity
to defend. A 9-day notice was deemed adequate in Johnson v.
284 F.2d 344, 345, the court saying:
"The fundamental requisites of due process, when the statute is
to be invoked, are reasonable notice and an opportunity for a full
and complete hearing, with the right to the aid of competent
Respondent concedes that the notice necessary for a criminal
trial was not given. Respondent indeed maintains that no notice is
"The primary purpose for affording a defendant notice is to
inform him of the charge against him, and to give him a reasonable
time in which to prepare his defense. Such reason for notice does
not exist in the instant cases pertaining to the application of the
West Virginia habitual criminal act."
Brief, p. 5.
Adequate notice of the charge under these habitual offender
statutes is an important as adequate notice
Page 368 U. S. 463
of the charge in an ordinary criminal trial. The notice required
must be commensurate with the range and complexity of issues that
concededly may be tendered. The requirements of notice, like those
for a fair hearing, are basic. As we stated in In re
Oliver, 333 U. S. 257
333 U. S.
"A person's right to reasonable notice of a charge against him,
and an opportunity to be heard in his defense -- a right to his day
in court -- are basic in our system of jurisprudence. . . ."
That case was one in which a "one-man grand jury" charged a
witness with giving false and evasive testimony and summarily
convicted him. Its principle is equally applicable here. Until
there is a charge fairly made and fairly tried, procedural due
process has not been satisfied. [Footnote 3/2
Unless this principle is adhered to in proceedings under these
recidivist statutes, serious penalties may be imposed without any
real opportunity to defend.
Constitutional infirmities in criminal convictions in federal
courts were declared to be "a jurisdictional bar to a valid
conviction" and assertable by habeas corpus in Johnson v.
Zerbst, 304 U. S. 458
304 U. S. 468
decided in 1938.
Any contrary implications from Graham v. West Virginia,
must be read in light of the fact that the broadening
reach of constitutional issues raisable by state habeas corpus
followed our decision in Johnson v. Zerbst, supra,
fn3/1|>note 1. Graham v. West Virginia
decided in 1912; Johnson v. Zerbst
in 1938; and the
broadening attack on state court judgments on constitutional
grounds in collateral proceedings started with Chambers v.
Florida, 309 U. S. 227
And see Smith v. O'Grady, 312 U.
; Williams v. Kaiser, supra.