Petitioner was tried and convicted of a federal crime. His only
defense was insanity. After his conviction was upheld on appeal,
petitioner sought post-conviction relief under 28 U.S.C. § 2255,
and included a claim that the finding of sanity was based upon the
improper admission of illegally seized evidence. The District
Court, after an evidentiary hearing, denied relief. Petitioner's
applications to the District Court and the Court of Appeals for
leave to appeal in forma pauperis
were denied, both courts
adhering to the view followed by the Court of Appeals that unlawful
search and seizure claims
"are not proper matters to be presented by a motion to vacate
sentence under § 2255 but can only be properly presented by appeal
from the conviction."
A claim of unconstitutional search and seizure is
cognizable in a proceeding under 28 U.S.C. § 2255. Pp. 394 U. S.
(a) Unconstitutional restraints "may be challenged on federal
habeas corpus even though imposed pursuant to the conviction of a
federal court of competent jurisdiction," Fay v. Noia,
372 U. S. 391
372 U. S. 409
(1963), and the same principle applies in a proceeding under §
2255, which revised the post-conviction procedure for federal
prisoners but did not reduce the scope of habeas corpus relief. Pp.
394 U. S.
(b) Post-conviction relief for prisoners' constitutional claims
is not limited by the rule that collateral review is not available
to correct errors of law. P. 394 U. S.
(c) Federal post-conviction relief is available to both state
and federal prisoners to protect constitutional rights relating to
the criminal trial process (including the right of a defendant not
to have unconstitutionally obtained evidence admitted against him
at trial), and the circumstances under which a federal court must
review constitutional claims of federal prisoners in a § 2255
proceeding are the same as those requiring habeas corpus review of
constitutional claims of state prisoners, see Townsend v.
Sain, 372 U. S. 293
372 U. S. 313
(1963), except that a § 2255 court need not be concerned with the
adequacy of the underlying federal rules of procedure. Pp.
394 U. S.
Page 394 U. S. 218
(d) Considerations of finality of litigation have no greater
weight with respect to federal prisoners seeking § 2255 relief than
with respect to state prisoners seeking federal habeas corpus
relief. P. 394 U. S.
(e) Petitioner's insanity defense, like any other defense,
cannot be prejudiced by the admission of illegally seized evidence.
P. 394 U. S.
Reversed and remanded.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The question here is whether the claim of a federal prisoner
that he was convicted on evidence obtained in an unconstitutional
search and seizure is cognizable in a post-conviction proceeding
under 28 U.S.C. § 2255. [Footnote
Page 394 U. S. 219
Petitioner was tried and convicted in the District Court for the
Eastern District of Missouri on charges of armed robbery of a
federally insured savings and loan association. At trial,
petitioner's only defense was insanity. The Court of Appeals for
the Eighth Circuit, on petitioner's direct appeal, affirmed the
conviction. Kaufman v. United States,
350 F.2d 408
Petitioner then filed this post-conviction proceeding under §
2255 and included a claim that the finding of sanity was based upon
the improper admission of unlawfully seized evidence. [Footnote 2
] After an evidentiary
hearing, the District Judge, who had also presided at petitioner's
trial, denied relief with a written opinion. As respects the claim
of unlawful search and seizure, the opinion states that:
"The record does not substantiate this claim. In any event, this
matter was not assigned as error on Kaufman's appeal from
conviction, and is not available as a ground for collateral attack
on the instant § 2255 motion."
268 F. Supp. 484, 487 (1967). Petitioner's applications to the
District Court and the Court of Appeals for the Eighth Circuit for
leave to appeal in forma pauperis
We treat the actions of the District Court and the Court of
Appeals as grounded on the view consistently
Page 394 U. S. 220
followed by the Court of Appeals that claims of unlawful search
"are not proper matters to be presented by a motion to vacate
sentence under § 2255, but can only be properly presented by appeal
from the conviction. [Footnote
Other courts of appeals have indicated a contrary
Page 394 U. S. 221
view. [Footnote 4
] In light
of the importance of the issue in the administration of § 2255, we
granted certiorari. 390 U.S. 1002 (1968). We reverse.
The authority of the federal courts to issue the writ of habeas
corpus was incorporated in the very first grant of federal court
jurisdiction made by the Judiciary Act of 1789, c. 20, § 14, 1
Stat. 81, with the limiting provision that
"writs of habeas corpus shall in no case extend to prisoners in
gaol, unless where they are in custody, under or by colour of the
authority of the United States. . . ."
Common law principles initially determined the scope of the
writ. Ex parte
4 Cranch 75, 8 U. S. 93
(1807). In 1867, however, the writ was extended to state prisoners,
and its scope was expanded to authorize relief, both as to federal
and state prisoners, in
"all cases where any person may be restrained of his or her
liberty in violation of the constitution, or of any treaty or law
of the United States. . . ."
Act of February 5, 1867, c. 28, § 1, 14 Stat. 385.
Section 2255 revised the procedure by which federal prisoners
are to seek such relief, but did not in any respect cut back the
scope of the writ. The section was included in the 1948 revision of
the Judicial Code
"at the instance of the Judicial Conference [of the United
States] to meet practical difficulties that had arisen in
administering the habeas corpus jurisdiction of the federal courts.
Nowhere in the history of Section 2255 do we find any purpose to
impinge upon prisoners' rights of collateral attack upon their
convictions. On the contrary, the sole purpose was to minimize the
difficulties encountered in habeas corpus hearings by affording
the same rights in another and more convenient forum,
Page 394 U. S. 222
Hayman, 342 U. S. 205
342 U. S. 219
(1952) (italics supplied); [Footnote 5
"the legislation was intended simply to provide in the
sentencing court a remedy exactly commensurate with that which had
previously been available by habeas corpus in the court of the
district where the prisoner was confined."
Hill v. United States, 368 U.
, 368 U. S. 427
(1962). Thus, we may refer to our decisions respecting the
availability of the federal habeas remedy in deciding the question
presented in this case.
We noted in Fay v. Noia, 372 U.
, 372 U. S. 409
"[t]he course of decisions of this Court . . . makes plain that
restraints contrary to our fundamental law, the Constitution, may
be challenged on federal habeas even though imposed pursuant to the
conviction of a federal court of competent jurisdiction. [Footnote 6
We have given the same recognition to constitutional claims in §
2255 proceedings. See, e.g., United States v. Hayman, supra;
Sanders v. United States, 373 U. S. 1
Jordan v. United States,
352 U.S. 904 (1956). The courts
of appeals which have denied cognizance under § 2255 to
unconstitutional search and seizure claims have not generally
supplied reasons supporting their apparent departure from this
course of our decisions. Rather, these courts have made the bald
statement, variously expressed,
Page 394 U. S. 223
that a motion under § 2255 cannot be used in lieu of an appeal.
] It is true that,
in Sunal v. Large, 332 U. S. 174
332 U. S. 179
(1947), we held that
"the writ is not designed for collateral review of errors of law
committed by the trial court -- the existence of any evidence to
support the conviction, irregularities in the grand jury procedure,
departure from a statutory grant of time in which to prepare for
trial, and other errors in trial procedure which do not cross the
But we there recognized that federal habeas relief for
constitutional claims asserted by federal prisoners is not limited
by that rule. 332 U.S. at 332 U. S. 182
see also Hill v. United States, supra,
at 368 U. S. 428
Later, in Townsend v. Sain, 372 U.
, 372 U. S.
-312 (1963), we pointed out the vital distinction
between the appellate and habeas functions, and concluded that
habeas relief cannot be denied solely on the ground that relief
should have been sought by appeal to prisoners alleging
"The whole history of the writ -- its unique development --
refutes a construction of the federal courts'
Page 394 U. S. 224
habeas corpus powers that would assimilate their task to that of
courts of appellate review. The function on habeas is different. It
is to test by way of an original civil proceeding, independent of
the normal channels of review of criminal judgments, the very
gravest allegations. . . . The language of Congress, the history of
the writ, the decisions of this Court, all make clear that the
power of inquiry on federal habeas corpus is plenary. Therefore,
where an applicant for a writ of habeas corpus alleges facts which,
if proved, would entitle him to relief, the federal court to which
the application is made has the power to receive evidence and try
the facts anew."
The Government suggests another rationale for denying
post-conviction relief to federal prisoners with illegal search and
seizure claims. The denial of Fourth Amendment protection against
unreasonable searches and seizures, the Government's argument runs,
is of a different nature from denials of other constitutional
rights which we have held subject to collateral attack by federal
prisoners. For, unlike a claim of denial of effective counsel or of
violation of the privilege against self-incrimination, as examples,
a claim of illegal search and seizure does not impugn the integrity
of the factfinding process or challenge evidence as inherently
unreliable; rather, the exclusion of illegally seized evidence is
simply a prophylactic device intended generally to deter Fourth
Amendment violations by law enforcement officers. This deterrent
function, the Government argues, is adequately served by the
opportunities afforded a federal defendant to enforce the
exclusionary rule before or at trial, so that the relatively
minimal additional deterrence afforded by a post-conviction remedy
would not seem to justify, except in special circumstances, the
collateral release of guilty persons who did not raise the search
Page 394 U. S. 225
issue at trial or on direct appeal. In sum, the Government
sponsors adoption by this Court of the rule announced in the
majority opinion of the Court of Appeals for the District of
Columbia Circuit in Thornton v. United States,
U.S.App.D.C. 114, 116, 368 F.2d 822, 824 (1966), that, in the
absence of a showing of "special circumstances," a claim by a
federal prisoner that evidence admitted at his trial was the fruit
of an unconstitutional search or seizure is not properly the ground
of a collateral attack on his conviction.
The Government concedes in its brief that we have already
rejected this approach with respect to the availability of the
federal habeas corpus remedy to state prisoners. This rejection was
premised in large part on a recognition that the availability of
collateral remedies is necessary to insure the integrity of
proceedings at and before trial where constitutional rights are at
stake. Our decisions leave no doubt that the federal habeas remedy
extends to state prisoners alleging that unconstitutionally
obtained evidence was admitted against them at trial. See,
e.g., Mancusi v. DeForte, 392 U. S. 364
(1968); Carafas v. LaVallee, 391 U.
(1968); Warden v. Hayden, 387 U.
(1967); see also Henry v. Mississippi,
379 U. S. 443
379 U. S. 452
(1965). The Government argues, however, that federal
post-conviction relief should not be available to federal prisoners
in as broad a range of cases as that cognizable when presented by
state prisoners. Support for this proposition is drawn from the
fact that considerations which this Court, in Fay v. Noia,
deemed justifications for affording a federal forum to
state prisoners -- e.g.,
the necessity that federal courts
have the "last say" with respect to questions of federal law, the
inadequacy of state procedures to raise and preserve federal
claims, the concern that state judges may be unsympathetic to
federally created rights, the institutional constraints on the
exercise of this Court's
Page 394 U. S. 226
certiorari jurisdiction to review state convictions -- do not
obtain with respect to federal prisoners. Thus, we are told that
the federal prisoner, having already had his day in federal court,
stands in a different position with regard to federal collateral
remedies than does the state prisoner. Conceding this distinction,
we are unable to understand why it should lead us to restrict,
completely or severely, access by federal prisoners with illegal
search and seizure claims to federal collateral remedies, while
placing no similar restriction on access by state prisoners.
The opportunity to assert federal rights in a federal forum is
clearly not the sole justification for federal post-conviction
relief; otherwise there would be no need to make such relief
available to federal prisoners at all. The provision of federal
collateral remedies rests more fundamentally upon a recognition
that adequate protection of constitutional rights relating to the
criminal trial process requires the continuing availability of a
mechanism for relief. This is no less true for federal prisoners
than it is for state prisoners.
In Townsend v. Sain, supra,
at 372 U. S. 313
372 U. S. 318
we set down the circumstances under which a federal court must
review constitutional claims -- including, of course, claims of
illegal search and seizure -- presented by state prisoners:
"If (1) the merits of the factual dispute were not resolved in
the state hearing; (2) the state factual determination is not
fairly supported by the record as a whole; (3) the factfinding
procedure employed by the state court was not adequate to afford a
full and fair hearing; (4) there is a substantial allegation of
newly discovered evidence; (5) the material facts were not
adequately developed at the state court hearing; or (6) for any
reason it appears that the state trier of fact did not afford the
habeas applicant a full and fair fact hearing."
"* * * *
Page 394 U. S.
"In all other cases where the material facts are in dispute, the
holding of such a hearing is in the discretion of the district
Of these, only the duty of the federal habeas court to
scrutinize "the factfinding procedure" under (3) does not apply in
the case of a federal prisoner; federal factfinding procedures are,
by hypothesis, adequate to assure the integrity of the underlying
constitutional rights. Thus, when a request for relief under § 2255
asserts a claim of unconstitutional search and seizure which was
tested by a motion to suppress at or before trial under Fed.Rule
Crim.Proc. 41(e), the § 2255 court need not stop to review the
adequacy of the procedure established by that Rule. In this
respect, and in this respect only, the position of the federal
prisoner does differ from that of the state prisoner. We perceive
no differences between the situations of state and federal
prisoners which should make allegations of the other circumstances
listed in Townsend v. Sain
less subject to scrutiny by a §
2255 court. [Footnote 8
Page 394 U. S. 228
The approach adopted by the court in Thornton
pressed upon us here exalts the value of finality in criminal
judgments at the expense of the interest of each prisoner in the
vindication of his constitutional rights. Such regard for the
benefits of finality runs contrary to the most basic precepts of
our system of post-conviction relief. In Fay v. Noia,
at 372 U. S. 424
a case involving a state prisoner who claimed that his confession
was coerced, we said that
"conventional notions of finality in criminal litigation cannot
be permitted to defeat the manifest federal policy that federal
constitutional rights of personal liberty shall not be denied
without the fullest opportunity for plenary federal judicial
The same view was expressed in Sanders v. United States,
at 373 U. S. 8
case involving a federal prisoner:
"[c]onventional notions of finality of litigation have no place
where life or liberty is at stake and infringement of
constitutional rights is alleged."
This philosophy inheres in our recognition of state prisoners'
post-conviction claims of illegal search and seizure. Plainly, the
interest in finality is the same with regard to both federal and
state prisoners. With regard to both, Congress has determined that
the full protection of their constitutional rights requires the
availability of a mechanism for collateral attack. The right then
is not merely to a federal forum, but to full and fair
consideration of constitutional claims. Federal prisoners are no
less entitled to such consideration than are state prisoners. There
is no reason to treat federal trial errors as less destructive of
constitutional guarantees than state trial errors, nor to give
greater preclusive effect to procedural defaults by federal
defendants than to similar defaults by state defendants. To hold
otherwise would reflect an anomalous and erroneous view of federal
We cannot agree with the suggestion in MR. JUSTICE BLACK's
dissent that the weight to be accorded the benefits
Page 394 U. S. 229
of finality is as controlling in the context of post-conviction
relief as in the context of retroactive relief. The availability of
post-conviction relief serves significantly to secure the integrity
of proceedings at or before trial and on appeal. No such service is
performed by extending rights retroactively. Thus, collateral
relief, unlike retroactive relief, contributes to the present
vitality of all constitutional rights whether or not they bear on
the integrity of the factfinding process.
More fundamentally, the logic of his dissent cannot be limited
to the availability of post-conviction relief. It brings into
question the propriety of the exclusionary rule itself. The
application of that rule is not made to turn on the existence of a
possibility of innocence; rather, exclusion of illegally obtained
evidence is deemed necessary to protect the right of all citizens,
not merely the citizen on trial, to be secure against unreasonable
searches and seizures. As we said in Miller v. United
States, 357 U. S. 301
357 U. S. 313
"We are duly mindful of the reliance that society must place for
achieving law and order upon the enforcing agencies of the criminal
law. But insistence on observance by law officers of traditional
fair procedural requirements is, from the long point of view, best
calculated to contribute to that end. However much in a particular
case insistence upon such rules may appear as a technicality that
inures to the benefit of a guilty person, the history of the
criminal law proves that tolerance of short-cut methods in law
enforcement impairs its enduring effectiveness. . . . Every
householder, the good and the bad, the guilty and the innocent, is
entitled to the protection designed to secure the common interest
against unlawful invasion of the house."
Finally, MR. JUSTICE BLACK's reliance on petitioner's concession
of participation in the robbery is misplaced.
Page 394 U. S. 230
That concession is irrelevant in light of petitioner's defense
at trial based on insanity. Surely that defense, any more than any
other defense, cannot be prejudiced by the admission of
unconstitutionally seized evidence.
We thus reject the rule announced in the majority opinion in
and adopt the reasoning of Judge Wright's dissent
in that case, 125 U.S.App.D.C. at 123, 368 F.2d at 831:
"There is undoubtedly a difference in the way federal courts
should treat post-conviction applications by state and federal
prisoners. Brown v. Allen,
, 344 U. S. 508
], 73 S. Ct.
397 (opinion of Mr. Justice Frankfurter), interprets 28 U.S.C. §
2241 as requiring federal courts to have the 'last say' with
respect to questions of federal law. Federal prisoners applying for
collateral relief often have had their constitutional claims passed
on by federal courts at trial or on appeal, so the Brown v.
rationale for federal court relitigation is inapposite.
But this difference provides no basis for limiting the grounds upon
which federal prisoners may obtain collateral relief, or for
formulating a separate set of rules to determine when a federal
prisoner's claim has adequately been adjudicated. Where a federal
trial or appellate court has had a 'say' on a federal prisoner's
claim, there may be no need for collateral relitigation. But what
if the federal trial or appellate court said nothing because the
issue was not raised? What if it is unclear whether the 'say' was
on the merits? What if new law has been made or facts uncovered
relating to the constitutional claim since the trial and appeal?
What if the trial or appellate court based its rulings on findings
of fact made after a hearing not 'full and fair' within the meaning
of Townsend v. Sain, 372 U. S. 293
, 83 S. Ct. 745, 9
L. Ed. 2d 770 (1963)?
Page 394 U. S. 231
All these problems are common to state and federal prisoners,
and the interest in finality operates equally in both situations.
These problems raise; not the issue whether relitigation is
necessary, but whether one adequate litigation has been afforded.
It would be anomalous indeed, especially in light of the interest
in maintaining good federal state relations, if defaults not
precluding one adequate federal review for the constitutional
claims of state prisoners precluded such a review for federal
prisoners, or if defects rendering state court adjudications
inadequate did not similarly affect federal court
We therefore hold that a claim of unconstitutional search and
seizure is cognizable in a 2255 proceeding. The order of the Court
of Appeals is reversed and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.
The pertinent provisions of 28 U.S.C. § 2255 are:
"A prisoner in custody under sentence of a court established by
Act of Congress claiming the right to be released upon the ground
that the sentence was imposed in violation of the Constitution or
laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence was in
excess of the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the sentence to
vacate, set aside or correct the sentence."
"A motion for such relief may be made at any time."
"Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief, the
court shall cause notice thereof to be served upon the United
States attorney, grant a prompt hearing thereon, determine the
issues and make findings of fact and conclusions of law with
respect thereto. If the court finds that the . . . sentence imposed
was not authorized by law or otherwise open to collateral attack,
or that there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the judgment
vulnerable to collateral attack, the court shall vacate and set the
judgment aside and shall discharge the prisoner or resentence him
or grant a new trial or correct the sentence as may appear
"A court may entertain and determine such motion without
requiring the production of the prisoner at the hearing."
"The sentencing court shall not be required to entertain a
second or successive motion for similar relief on behalf of the
Petitioner initiated the § 2255 proceeding by a motion. The only
claim presented was denial of effective assistance of counsel. The
District Judge ordered a hearing, and appointed counsel to assist
petitioner. Counsel filed a supplemental motion presenting two
additional claims, one of which was that the search of petitioner's
automobile was illegal.
Warren v. United States,
311 F.2d 673, 675 (1963);
see also Springer v. United States,
340 F.2d 950 (1965);
Peters v. United States,
312 F.2d 481 (1963); Gendron
v. United States,
340 F.2d 601 (1965). Accord: United
States v. Re,
372 F.2d 641 (C.A.2d Cir.1967); United
States v. Jenkins,
281 F.2d 193 (C.A.3d Cir.1960);
Armstead v. United States,
318 F.2d 725 (C.A. 5th
Cir.1963); Eisner v. United States,
351 F.2d 55 (C.A. 6th
Cir.1965); De Welles v. United States,
372 F.2d 67 (C.A.
7th Cir.1967); Williams v. United States,
307 F.2d 366
(C.A. 9th Cir.1962).
We have not overlooked that the District Court's statement that
"this matter was not assigned as error on Kaufman's appeal from
conviction . . ." suggests that, in any event, failure to appeal
the conviction renders the § 2255 remedy unavailable. This
suggestion is contrary to our decisions that failure to take a
direct appeal from conviction does not deprive a federal
post-conviction court of power to adjudicate the merits of
constitutional claims; the question, rather, is whether the case is
one in which refusal to exercise that power would be appropriate.
See Fay v. Noia, 372 U. S. 391
372 U. S.
-440 (1963); Henry v. Mississippi,
379 U. S. 443
379 U. S.
This certainly is not a case where there was a "deliberate
bypass" of a direct appeal. Appointed counsel had objected at trial
to the admission of certain evidence on grounds of unlawful search
and seizure, but newly appointed appellate counsel did not assign
the admission as error either in his brief or on oral argument of
the appeal. After oral argument of the appeal, however, petitioner
wrote a letter to appellate counsel asking him to submit to the
Court of Appeals a claim of illegal search and seizure of items
from his automobile. Counsel forwarded petitioner's letter to the
Clerk of the Court of Appeals, who notified counsel that
petitioner's letter had been given to the panel which had heard and
was considering the appeal. The opinion of the Court of Appeals
affirming petitioner's conviction does not appear to pass on the
search and seizure claim.
United States v. Sutton,
321 F.2d 221 (C.A.4th
Cir.1963); Gaitan v. United States,
317 F.2d 494 (C.A.
Among the serious administrative problems under habeas corpus
practice in the case of federal prisoners was that created by the
requirement that the action be brought in the district of
confinement, where the records of the case were often not readily
available. Section 2255 changed this to require an application by
motion filed in the sentencing court. See United States v.
Hayman, 342 U. S. 205
342 U. S.
See, e.g., 85 U. S.
Wall. 163 (1874); Ex parte Wilson, 114 U.
(1885); Callan v. Wilson, 127 U.
(1888); Counselman v. Hitchcock,
142 U. S. 547
(1892); Johnson v. Zerbst, 304 U.
(1938); Bowen v. Johnston, 306 U. S.
(1939); Waley v. Johnston, 316 U.
(1942); Von Moltke v. Gillies,
332 U. S. 708
(1948); see also
cases collected in Fay v. Noia,
372 U. S. 391
372 U. S. 409
"A motion under § 2255 cannot be made the
substitute for an appeal," Peters v. United States, supra,
n. 3, at 482 (C.A. 8th Cir.);
"Section 2255 provides for a collateral attack on a judgment of
conviction, and is not a substitute for appeal for alleged errors
committed at the trial,"
Eisner v. United States, supra, n
3, at 57 (C.A. 6th Cir.);
"Questions concerning the admissibility of evidence obtained
directly or indirectly as a result of an unlawful search can be
reviewed on an appeal from a judgment of conviction, but cannot be
dealt with in a section 2255 proceeding,"
Williams v. United States, supra, n
3, at 367 (C.A. 9th Cir.);
"It has long been the law that habeas corpus and § 2255 will not
be allowed to do service as an appeal, and that, so far as federal
prisoners are concerned, failure to appeal will normally bar resort
to post-conviction relief,"
Nash v. United States,
342 F.2d 366, 367 (C.A. 5th
Cir.1965). These paraphrase the statement in Sunal v.
Large, 332 U. S. 174
332 U. S. 178
(1947), that "the writ of habeas corpus will not be allowed to do
service for an appeal," but that statement was made in the context
of an alleged nonconstitutional trial error. See United States
314 F.2d 314, 322-323 (C.A.2d Cir.1963).
Where a trial or appellate court has determined the federal
prisoner's claim, discretion may in a proper case be exercised
against the grant of a § 2255 hearing. Section 2255 provides for
hearing "[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief. . .
." In Sanders v. United States, 373 U. S.
(1963), we announced standards governing the
determination whether a hearing should be ordered in the case of a
successive motion under § 2255. Similarly, where the trial or
appellate court has had a "say" on a federal prisoner's claim, it
may be open to the § 2255 court to determine that, on the basis of
the motion, files, and records, "the prisoner is entitled to no
relief." See Thornton v. United States,
114, 125, 368 F.2d 822, 833 (1966) (dissenting opinion of Wright,
Furthermore, the § 2255 court may in a proper case deny relief
to a federal prisoner who has deliberately bypassed the orderly
federal procedures provided at or before trial and by way of appeal
motion to suppress under Fed.Rule Crim.Proc.
41(e) or appeal under Fed.Rule App.Proc. 4(b). Fay v. Noia,
n. 3, at 372 U. S. 438
Henry v. Mississippi, supra,
n. 3, at 379 U. S.
MR. JUSTICE BLACK, dissenting.
Petitioner Kaufman was convicted of robbing a federally insured
savings and loan association while armed with a pistol. Part of the
evidence used against him was a revolver, some of the stolen
traveler's checks, a money order receipt, a traffic summons, and
gasoline receipts. During the trial, petitioner's counsel conceded
that petitioner had committed the robbery, but contended he was not
responsible for the crime because he was mentally ill at the time.
An appeal from his conviction was rejected by the Court of Appeals,
350 F.2d 408 (C.A. 8th Cir.1965), and we denied certiorari, 383
U.S. 951 (1966). Three months later -- after the
Page 394 U. S. 232
decision had become what is generally considered "final" -- he
filed in the Federal District Court the present motion under 28
U.S.C. § 2255, asking that his sentence be vacated on the ground,
among others, that the trial court had committed error in not
suppressing the evidence against him because the articles had been
obtained by an unlawful search and seizure. Despite the fact that
he has never, either in his trial or in this proceeding, asserted
that he had not actually physically committed the robbery with a
pistol, and despite the fact that this plainly reliable evidence
clearly shows, along with the other evidence at trial, that he was
not insane, the Court is reversing his case, holding that he can
collaterally attack the judgment after it had become final. I
My dissent rests on my belief that not every conviction based in
part on a denial of a constitutional right is subject to attack by
habeas corpus or § 2255 proceedings after a conviction has become
final. This conclusion is supported by the language of § 2255,
which clearly suggests that not every constitutional claim is
intended to be a basis for collateral relief. [Footnote 2/1
] And, as this Court has said in
Fay v. Noia,
with reference to habeas corpus,
"Discretion is implicit in the statutory command that the judge
. . . 'dispose of the matter as law and justice require,' 28 U.S.C.
§ 2243. . . ."
,4 372 U. S. 38
course, one important factor that would relate to whether the
conviction should be vulnerable to collateral
Page 394 U. S. 233
attack is the possibility of the applicant's innocence. For
illustration, few would think that justice requires release of a
person whose allegations clearly show that he was guilty of the
crime of which he had been convicted.
I agree with the Court's conclusion that the scope of collateral
attack is substantially the same in federal habeas corpus cases
which involve challenges to state convictions, as it is in § 2255
cases which involve challenges to federal convictions. The crucial
question, however, is whether certain types of claims, such as a
claim to keep out relevant and trustworthy evidence because the
result of an unconstitutional search and seizure, should normally
be open in these collateral proceedings. This question was fully
and carefully considered by the Court of Appeals for the District
of Columbia Circuit in Thornton v. United States,
U.S.App.D.C. 114, 368 F.2d 822 (1966), and I agree substantially
with the opinion of Judge Leventhal for the majority of that court,
which states: [Footnote 2/2
"[G]enerally a claim by a federal prisoner that evidence
admitted at his trial was the fruit of an unconstitutional search
or seizure is not properly the ground of a collateral attack on his
conviction. As further noted below, this rule is subject to an
exception for special circumstances. . . ."
"* * * *"
"Many opinions declare that collateral attack, as by habeas
corpus, is available to correct the denial of a constitutional
right. This is the general rule, but it is not an absolute. . .
"* * * *"
"The courts are called on to evolve and provide procedures and
remedies that are effective to vindicate constitutional rights.
However, where effective procedures are available in the direct
Page 394 U. S. 234
is no imperative to provide an additional, collateral review,
leaving no stone unturned, when exploration of all avenues of
justice at the behest of individual petitioners may impair Judicial
administration of the federal courts, as by making criminal
litigation interminable, and diverting resources of the federal
It was formerly the rule in this country that judgments were so
impervious to collateral attack that a defendant could not
collaterally attack his conviction even after the Government had
admitted his innocence. That rule, obviously a harsh and what might
seem to most people an indefensible one, has of course now been
abandoned. It was finally put to rest in Fay v. Noia,
372 U. S. 391
(1963). It is this element of probable or possible innocence that I
think should be given weight in determining whether a judgment
after conviction and appeal and affirmance should be open to
collateral attack, for the great historic role of the writ of
habeas corpus has been to insure the reliability of the
guilt-determining process. [Footnote
] In Fay v. Noia,
Noia and his two codefendants had
been convicted of felony murder in New York state court and each
had been sentenced to life imprisonment. The sole evidence against
each defendant was his confession. While his codefendants appealed,
Noia did not, for fear that, if he secured a reversal and was
reconvicted at a second trial, he would be sentenced to death. The
confessions of one codefendant were subsequently found by the Court
of Appeals for the Second Circuit to have been coerced by practices
which that court described as "satanic." United States ex rel.
Caminito v. Murphy,
222 F.2d 698,
Page 394 U. S. 235
701 (1955). The conviction of Noia's other codefendant was also
reversed, People v. Bonino,
1 N.Y.2d 752, 135 N.E.2d 51,
and since there was no evidence other than the coerced confessions
that they were guilty, the State apparently declined to reprosecute
them and they were set free. See United States ex rel. Noia v.
Fay, 183 F.
6 (1960). Noia, however, languished in prison, even though his
alleged confederates had been released. Both the New York courts
and the Federal District Court declined to review his case on the
ground that his 1942 failure to appeal made his conviction "final."
He remained in jail despite the fact that he "continuously asserted
his innocence of the crime for which he [had] been convicted" in
his petition for habeas corpus and elsewhere. See
Transcript of Record in No. 84, October Term, 1962, p. 8.
It was under these circumstances, strongly appealing to the
Court's sense of what justice required, that this Court held that
Noia was entitled to challenge his conviction even though it had
previously become "final." My Brother HARLAN, dissenting, concluded
that no matter how appealing the circumstances, one wrongly
convicted must be consigned to the slow, tedious, and uncertain
road to whatever relief he might possibly get from the Chief
Executive. On the contrary, I agreed with Fay v. Noia
one of the bright landmarks in the administration of criminal
justice. But I did not think then and do not think now that it laid
down an inflexible rule compelling the courts to release every
prisoner who alleges in collateral proceedings some constitutional
flaw, regardless of its nature, regardless of his guilt or
innocence, and regardless of the circumstances of the case. The
Court's opinion in Noia
shows, from beginning to end, that
the defendant's guilt or innocence is at least one of the vital
considerations in determining whether collateral relief should be
available to a convicted defendant.
Page 394 U. S. 236
The Court repeatedly emphasized that the only evidence against
Noia was a coerced confession and that he remained in jail while
the State permitted his alleged confederates to go free. The Court
made it clear that equitable considerations such as these should
play a part in determining the availability of federal habeas
"Although we hold that the jurisdiction of the federal courts on
habeas corpus is not affected by procedural defaults incurred by
the applicant during the state court proceedings, we recognize a
limited discretion in the federal judge to deny relief to an
applicant under certain circumstances. Discretion is implicit in
the statutory command that the judge, after granting the writ and
holding a hearing of appropriate scope, 'dispose of the matter as
law and justice require,' 28 U.S.C. § 2243, and discretion was the
flexible concept employed by the federal courts in developing the
exhaustion rule. Furthermore, habeas corpus has traditionally been
regarded as governed by equitable principles. [Footnote 2/4
And in its closing paragraph, the Court stressed:
"Today as always few indeed is the number of state prisoners who
eventually win their freedom by means of federal habeas corpus.
Those few who are ultimately successful are persons whom society
has grievously wronged and for whom belated liberation is little
enough compensation. [Footnote
Surely, it cannot be said of Kaufman, an admitted armed robber,
that he is a person whom "society has grievously wronged and for
whom belated liberation is little enough compensation."
Page 394 U. S. 237
Although, as the Court of Appeals indicated in the
case, habeas corpus has been thought of broadly
as a means of securing redress for the violation of any
"constitutional right," it was true until Mapp v. Ohio,
367 U. S. 643
(1961), that almost every "constitutional right" referred to in
this sense played a central role in assuring that the trial would
be a reliable means of testing guilt. It is true that the
prohibition against coerced confessions has been vigorously
enforced even in the absence of proof that the confession itself
was unreliable, e.g., Rogers v. Richmond, 365 U.
(1961), but even this prohibition rests to a
substantial extent on recognition that all such confessions "may be
and have been, to an unascertained extent, found to be
at 365 U. S.
A claim of illegal search and seizure under the Fourth Amendment
is crucially different from many other constitutional rights;
ordinarily the evidence seized can in no way have been rendered
untrustworthy by the means of its seizure and indeed often this
evidence alone establishes beyond virtually any shadow of a doubt
that the defendant is guilty. A good example of such a case is one
in which I filed a dissent today, Harris v. Nelson, post,
p. 394 U. S. 286
prisoner in Harris
was convicted on a charge that he had
been in possession of marihuana, possession alone being a crime
under state law. He later collaterally attacked that conviction,
alleging that the marihuana had been unlawfully seized from his
home, where he had been in illegal possession of it. He did not,
and evidently could not, allege a single fact that would indicate
the slightest possibility that he actually was innocent of the
crime charged. Under these circumstances, it implies no disrespect
for the importance of the Fourth Amendment to recognize the simple
proposition that treatment of search and seizure claims should
Page 394 U. S. 238
correspond to the purpose of the Fourth Amendment exclusionary
rule. As the Court of Appeals said in Thornton:
"Our rejection of the availability of collateral review for
claims of unreasonable search and seizure (in the absence of
exceptional circumstances) is not attributable to a low regard for
the significance of the Fourth Amendment in our times and
civilization. On the contrary, the magnitude of the Fourth
Amendment in our constitutional constellation has prompted unusual
remedies by Congress, as well as the courts. . . ."
". . . The corollary, however, is a contraction of the need for
enlarging collateral review in order to assure effective
vindication of the constitutional interests involved."
The purpose of the exclusionary rule, unlike most provisions of
the Bill of Rights, does not include, even to the slightest degree,
the goal of insuring that the guilt-determining process be
reliable. Rather, as this Court has said time and again, the rule
has one primary and overriding purpose, the deterrence of
unconstitutional searches and seizures by the police. As the Court
said in Linkletter v. Walker, 381 U.
, 381 U. S.
had as its prime purpose the enforcement of the
Fourth Amendment through the inclusion of the exclusionary rule
within its rights. This, it was found, was the only effective
deterrent to lawless police action. Indeed, all of the cases since
Wolf [v. Colorado, 338 U. S. 25
the exclusion of illegal evidence have been based on the necessity
for an effective deterrent to illegal police action."
How this purpose can be served by the broad and unqualified rule
adopted by the Court today is something
Page 394 U. S. 239
of a mystery. Of course, the shortcomings inherent in any human
system make it impossible to eliminate entirely all the incentives
to conduct an illegal search. It would seem rather fanciful,
however, to suggest that these inevitable incentives would be
decreased to any significant extent by the fact that, if a
conviction is obtained, after adequate opportunities have been
provided to litigate constitutional claims, and if this conviction
is upheld by all the reviewing courts, the validity of the search
and seizure may later be questioned in a collateral proceeding.
Understandably, the Court does not make any such suggestion, and
indeed makes no effort to justify its result in terms of the
long-recognized deterrent purpose of the exclusionary rule. The
Court instead simply provides us with a string of citations that
supposedly settle the question, at least as to state convictions,
at 394 U. S. 225
but the Court neglects to mention that not one of the cases it
cites contains a single intimation that the issue before us now was
even considered. [Footnote 2/7
The only other justification for the Court's result that can be
gleaned from its opinion is the statement that the reasoning of the
Court of Appeals in Thornton
"exalts the value of finality in criminal judgments at the
expense of the interest of each prisoner in the vindication of his
at 394 U. S. 228
This astonishing statement is directly contrary to the principles
this Court has consistently applied on this subject, as, for
example, in Elkins v. United States, 364 U.
, 364 U. S. 217
(1960), where we said:
"The [exclusionary] rule is calculated to prevent, not to
repair. Its purpose is to deter --
Page 394 U. S. 240
to compel respect for the constitutional guaranty in the only
effectively available way -- by removing the incentive to disregard
This same recognition that no personal right of the prisoner can
be vindicated in these Fourth Amendment cases was stressed in this
Court's opinion in Linkletter, supra:
"We cannot say that this [deterrent] purpose would be advanced
by making the rule retrospective. The misconduct of the police
prior to Mapp
has already occurred, and will not be
corrected by releasing the prisoners involved. . . . Finally, the
ruptured privacy of the victims' homes and effects cannot be
restored. Reparation comes too late."
381 U.S. at 381 U. S.
The Court's consistent adherence to this approach has continued
through all of the various "retroactivity" cases, including today's
decision in Desist v. United States, post,
p. 394 U. S. 244
which the Court emphasizes, quoting from Linkletter,
"[t]he misconduct of the police . . . has already occurred, and
will not be corrected by releasing the prisoners involved,'" and
that "the exclusionary rule is but a `procedural weapon that has no
bearing on guilt.'" It would be hard to find a more apt summary of
this Court's holdings in these "retroactivity" cases than the
statement that they "exal[t] the value of finality in criminal
judgments at the expense of the interest of each prisoner in the
vindication of his constitutional rights." But since this is the
course the Court has chosen to steer, I think it would not be amiss
to suggest that the Court at least decide this case on the same
principles, and seek to achieve a modest semblance of consistency.
Instead the Court adopts a rule that offers no discernible benefits
in enforcing the Fourth Amendment and insures that prisoners who
are undoubtedly guilty will be set free.
It is seemingly becoming more and more difficult to gain
acceptance for the proposition that punishment of
Page 394 U. S. 241
the guilty is desirable, other things being equal. One
commentator, who attempted in vain to dissuade this Court from
today's holding, thought it necessary to point out that there is "a
strong public interest in convicting the guilty." [Footnote 2/8
] Indeed, the day may soon come when
the ever-cautious law reviews will actually be forced to offer the
timid and uncertain contention, recently suggested satirically,
that "crime may be thought socially undesirable, and its control a
valid governmental objective' to which the criminal law is
`rationally related." [Footnote
I cannot agree to a rule, however technical it may seem, that
leads to these results. I would not let any criminal conviction
become invulnerable to collateral attack where there is left
remaining the probability or possibility that constitutional
commands related to the integrity of the factfinding process have
been violated. In such situations, society has failed to perform
its obligation to prove beyond a reasonable doubt that the
defendant committed the crime. But it is quite a different thing to
permit collateral attack on a conviction after a trial according to
due process when the defendant clearly is, by the proof and by his
own admission, guilty of the crime charged. There may, of course,
as the Court of Appeals held in the Thornton
case, be some
special circumstances in which allowance of a Fourth Amendment
claim in a collateral proceeding would be justified in terms of the
relevant and applicable constitutional principles. Some of the
situations possibly falling in this category have been enumerated
and examined by others, [Footnote
] and there are circumstances alleged here that might
Page 394 U. S. 242
to such a disposition of this case. [Footnote 2/11
] But the Court does not rest its judgment
on this narrow ground, and I therefore do not attempt to pass on
it. I do contend, however, that the court below was right in
refusing to follow the broad rule that this Court is announcing
today. In collateral attacks, whether by habeas corpus or by § 2255
proceedings, I would always require that the convicted defendant
raise the kind of constitutional claim that casts some shadow of a
doubt on his guilt. This defendant is permitted to attack his
conviction collaterally although he conceded at the trial and does
not now deny that he had robbed the savings and loan association
and although the evidence makes absolutely clear that he knew what
he was doing. Thus, his guilt being certain, surely he does not
have a constitutional right to get a new trial. I cannot possibly
agree with the Court.
"If the court finds that the judgment was rendered without
jurisdiction, or that the sentence imposed was not authorized by
law or otherwise open to collateral attack, or that there has been
such a denial
or infringement of the constitutional rights
of the prisoner as to render the judgment vulnerable to
the court shall vacate and set the judgment
aside and shall discharge the prisoner or resentence him or grant a
new trial or correct the sentence as may appear appropriate."
28 U.S.C. § 2255. (Emphasis supplied.)
125 U.S.App.D.C. at 116-118, 368 F.2d at 824-826.
Mishkin, The Supreme Court, 1964 Term -- Foreword:
The High Court, The Great writ, and the Due Process of Time and
Law, 79 Harv.L.Rev. 56, 796 (1965).
372 U. S. 391
372 U. S.
at 372 U. S.
125 U.S.App.D.C. at 118, 368 F.2d at 826.
Only one of these decisions, Mancusi v. DeForte,
392 U. S. 364
(1968), actually ordered the granting of habeas relief on the basis
of a search and seizure claim, and in Mancusi
Warden v. Hayden, 387 U. S. 294
(1967)) the issue was not even theoretically before us since only
in the most exceptional case would we have considered a question
not mentioned in the State Warden's petition for a writ of
Amsterdam, Search, Seizure, and Section 2255: A Comment, 112
U.Pa.L.Rev. 378, 389 (1964).
79 Harv.L.Rev. (parody ed.) 10, 12 (March 1966).
Thornton v. United States, supra;
fn2/8|>n. 8, at 391-392, n. 60.
Petitioner's allegations suggest that he may have been
unjustifiably frustrated in his efforts to raise the search and
seizure issue on direct appeal from his conviction. See
the Court's opinion, ante
at 394 U. S. 220
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins,
I concur in much of my Brother BLACK's opinion, and agree with
his conclusion that 28 U.S.C. § 2255 should be available to contest
the admission of evidence allegedly seized in violation of the
Fourth Amendment only under limited and special circumstances of
the sort suggested in Thornton v. United States,
U.S.App.D.C. 114, 368 F.2d 822 (1966). I must, however,
disassociate myself from any implications, see, e.g., ante
at 394 U. S.
-233, 394 U. S.
-236, that the availability of this collateral remedy
turns on a petitioner's assertion that he was in fact, innocent, or
on the substantiality of such an allegation.
I think it appropriate to add that the main roots of the
situation against which my Brother BLACK so rightly
Page 394 U. S. 243
inveighs are to be found in the Court's decisions in
Townsend v. Sain, 372 U. S. 293
(1963), and Fay v. Noia, 372 U. S. 391
(1963), which have opened wide the gates to collateral
reexamination of both state and federal criminal convictions. Be
that as it may, the present case offers an opportunity to narrow
the entrance in a fair and practicable manner. In rejecting the
opportunity, the Court once again *
imposes a burden on the judiciary and on society at large, which
results in no legitimate benefit to the petitioner and does nothing
to serve the interests of justice.
I therefore dissent from the opinion of the Court.
my dissent in Gardner v. California,
393 U. S. 367
393 U. S. 371