Petitioner, who was under sentence of death for murder, sought a
writ of habeas corpus in the District Court. That court denied the
writ, denied a certificate of probable cause to appeal, but granted
a stay of execution to allow for an appeal. Petitioner filed with
the Court of Appeals a document stating the formal history of the
case, noting one of the issues, and alleging that the petition
"merits further hearing by the Court," which requested a further
stay of execution, a certificate of probable cause, and leave to
appeal in forma pauperis.
The next day, counsel were heard
orally by a panel of the court in an unrecorded hearing. The court
granted the stay of execution and thereafter, without further
argument or submissions, granted the certificate of probable cause
and affirmed the lower court's denial of habeas corpus.
Where an appeal possesses sufficient merit to
warrant a certificate of probable cause, appellant must be afforded
adequate opportunity to address the merits, and if a summary
procedure is adopted, he must be informed, by rule or otherwise,
that his opportunity will or may be limited.
Certiorari granted; vacated and remanded.
On November 27, 1959, petitioner was found guilty of first
degree murder by a Colorado jury, which fixed his penalty at death.
Following subsequent state proceedings, he sought a writ of habeas
corpus in the United States District Court for the District of
Colorado. He alleged that he had received inadequate
Page 391 U. S. 465
by appointed trial counsel, [Footnote 1
] that the trial court had not properly
determined the voluntariness of confessions admitted against him,
and that the procedure used to determine his sanity fell short of
constitutional requirements. On June 2, 1967, the District Court
denied the writ, denied a certificate of probable cause to appeal,
28 U.S.C. § 2253, but granted a stay of execution to
June 16, 1967, to allow time for appeal. The District Court filed a
written opinion and order to that effect on June 5, 1967.
Three days later, on June 8, petitioner's attorneys filed with
the Court of Appeals for the Tenth Circuit a three-page document
requesting a further stay of execution, a certificate of probable
cause to appeal, and leave to appeal in forma pauperis.
This document merely stated the formal history of the case in
numbered paragraphs, noted one of the issues, and alleged that
"this petition merits further hearing by this Court." On the
following day, June 9, counsel were heard orally by a panel of the
Court of Appeals. The hearing was not recorded. The court granted a
further stay of execution. On June 18, without further argument or
submissions by counsel, the Court of Appeals issued an order
granting the certificate of probable cause, and, in the next
sentence, affirming the District Court's denial of habeas corpus.
Petitioner sought a writ of certiorari in this Court, alleging that
the procedure followed by the Court of Appeals violated the
standards established by, or implicit in, Nowakowski v.
Maroney, 386 U. S. 542
We grant the writ, vacate the judgment of the Court of Appeals,
and remand to that court for further appropriate
Page 391 U. S. 466
proceedings. Nowakowski, supra,
held that, when a
district court grants a certificate of probable cause the court of
appeals must "proceed to a disposition of the appeal in accord with
its ordinary procedure." 386 U.S. at 386 U. S. 543
The principle underlying that decision was that, if an appellant
persuades an appropriate tribunal that probable cause for an appeal
exists, he must then be afforded an opportunity to address the
underlying merits. This principle is no less applicable when a
court of appeals, having received submissions relating only to
probable cause and other procedural matters, decides that probable
cause indeed exists.
As we only recently noted in Carafas v. LaVallee, ante,
p. 391 U. S. 234
391 U. S. 242
does not prevent the courts of appeals from
adopting appropriate summary procedures for final disposition of
such cases. Carafas
requires the courts of appeals to give
sufficient indication that an appeal has been disposed of on the
merits, but nothing in Nowakowski
and nothing we say here
prevents the courts of appeals from considering the questions of
probable cause and the merits together, and nothing said there or
here necessarily requires full briefing and oral argument in every
instance in which a certificate is granted. We hold only that,
where an appeal possesses sufficient merit to warrant a
certificate, the appellant must be afforded adequate opportunity to
address the merits, and that, if a summary procedure is adopted,
the appellant must be informed, by rule or otherwise, that his
opportunity will or may be limited. [Footnote 2
] Within this
Page 391 U. S. 467
general framework, the promulgation of specific procedures is a
matter for the courts of appeals.
The motion to proceed in forma pauperis
for a writ of certiorari are granted. The judgment of the Court of
Appeals affirming the judgment of the District Court is vacated,
and the case is remanded for further proceedings in conformity with
this opinion. The stay of execution heretofore granted by MR.
JUSTICE WHITE is continued in force pending the disposition of the
matter by the Court of Appeals, on condition that the petitioner
proceed with due diligence in that court.
It is so ordered.
Petitioner's statement of facts alleges not only that trial
counsel was guilty of egregious neglect at trial, but also that
there were understandable reasons: there is said to be evidence
that, during the period of the trial the attorney's attention was
preoccupied with other matters, to-wit, the commission of a series
In an effort to determine whether the merits had been addressed,
and whether petitioner was on notice that they should be addressed
in full, at the unrecorded hearing on June 9, this Court solicited
further submissions from the parties in this case. Petitioner
replied that the merits had been raised only to the extent
necessary to show grounds for a certificate of probable cause.
Respondent replied that petitioner was given all the time he
wanted. Respondent was unable, however, to point to any rule or
decision forewarning an applicant for a certificate of probable
cause to make his argument on the underlying issues in full.