Three years after his conviction for a federal crime, petitioner
brought this collateral attack on the ground of unconstitutional
discrimination in the composition of the grand jury that indicted
him. The District Court found that, though petitioner could have
done so, he at no stage of the proceedings attacked the grand
jury's composition, and it concluded that, under Fed.Rule
Crim.Proc. 12(b)(2), he had waived his right to do so. The court
also determined that, since the challenged jury selection method
had long obtained, the grand jury that indicted petitioner indicted
his two white accomplices, and the case against petitioner was "a
strong one," there was no "cause shown" under the rule to grant
relief from the waiver. The Court of Appeals affirmed.
Held:
1. The waiver standard set forth in Fed.Rule Crim.Proc. 12(b)(2)
governs an untimely claim of grand jury discrimination, not only
during the criminal proceeding, but also later on collateral
review.
Shotwell Mfg. Co. v. United States, 371 U.
S. 341, followed;
Kaufman v. United States,
394 U. S. 217,
distinguished. Pp.
411 U. S.
236-243.
2. The District Court, in the light of the record in this case,
did not abuse its discretion in denying petitioner relief from the
application of the waiver provision. Pp.
411 U. S.
243-245.
455 F.2d 919, affirmed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ.,
joined. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS
and BRENNAN, JJ., joined,
post, p.
411 U. S.
245.
Page 411 U. S. 234
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
We are called upon to determine the effect of Rule 12(b)(2) of
the Federal Rules of Criminal Procedure on a post-conviction motion
for relief which raises for the first time a claim of
unconstitutional discrimination in the composition of a grand jury.
An indictment was returned in the District Court charging
petitioner Davis, a Negro, and two white men with entry into a
federally insured bank with intent to commit larceny in violation
of 18 U.S.C. §§ 2 and 2113(a). Represented by appointed counsel,
[
Footnote 1] petitioner entered
a not guilty plea at his arraignment and was given 30 days within
which to file pretrial motions. He timely moved to quash his
indictment on the ground that it was the result of an illegal
arrest, but made no other pretrial motions relating to the
indictment.
On the opening day of the trial, following
voir dire of
the jury, the District Judge ruled on petitioner's pretrial motions
in chambers and ordered that the motion to quash on the illegal
arrest ground be carried with the case. He then asked twice if
there were anything else before commencing trial. Petitioner was
convicted and
Page 411 U. S. 235
sentenced to 14 years' imprisonment. His conviction was affirmed
on appeal. 409 F.2d 1095 (CA5 1969).
Post-conviction motions were thereafter filed and denied, but
none dealt with the issue presented in this case. Almost three
years after his conviction, petitioner filed the instant motion to
dismiss the indictment, pursuant to 28 U.S.C. § 2255, alleging that
the District Court had acquiesced in the systematic exclusion of
qualified Negro jurymen by reason of the use of a "key man" system
of selection, [
Footnote 2] an
asserted violation of the
"mandatory requirement of the statute laws set forth . . . in
title 28, U.S.C.A. Section 1861, 1863, 1864, and the 5th amendment
of the United States Constitution. [
Footnote 3]"
His challenge only went to the composition of the grand jury,
and did not include the petit jury which found him guilty. The
District Court, though it took no evidence on the motion, invited
additional briefs on the issue of waiver. It then denied the
motion. In its memorandum opinion, it relied on
Shotwell Mfg.
Co. v. United States, 371 U. S. 341
(1963), and concluded that petitioner had waived his right to
object to the composition of the grand jury because such a
contention is waived under Rule 12(b)(2) unless raised by motion
prior to trial. Also, since the "key man" method of selecting grand
jurors had been openly followed for many years prior to
petitioner's indictment, since the same grand jury that indicted
petitioner indicted his two white accomplices, and since the
Page 411 U. S. 236
case against petitioner was "a strong one," the court determined
that there was nothing in the facts of the case or in the nature of
the claim justifying the exercise of the power to grant relief
under Rule 12(b)(2) for "cause shown."
The Court of Appeals affirmed on the basis of
Shotwell,
supra, and Rule 12(b)(2). Because its decision is contrary to
decisions of the Ninth Circuit in
Fernandez v. Meier, 408
F.2d 974 (1969), and
Chee v. United States, 449 F.2d 747
(1971), we granted certiorari to resolve the conflict.
Petitioner contends that, because his § 2255 motion alleged
deprivation of a fundamental constitutional right, one which has
been recognized since
Strauder v. West Virginia,
100 U. S. 303
(1880), his case is controlled by this Court's dispositions of
Kaufman v. United States, 394 U.
S. 217 (1969), and
Sanders v. United States,
373 U. S. 1 (1963),
rather than
Shotwell Mfg. Co. v. United States, supra, and
Rule 12(b)(2). Accordingly, he urges that his collateral attack on
his conviction may be precluded only after a hearing in which it is
established that he "deliberately bypassed" or "understandingly and
knowingly" waived his claim of unconstitutional grand jury
composition.
See Fay v. Noia, 372 U.
S. 391 (1963), and
Johnson v. Zerbst,
304 U. S. 458
(1938).
I
Rule 12(b)(2) provides in pertinent part that
"[d]efenses and objections based on defects in the institution
of the prosecution or in the indictment . . . may be raised only by
motion before trial,"
and that failure to present such defenses or objections
"constitutes a waiver thereof, but the court for cause shown may
grant relief from the waiver." By its terms, it applies to both
procedural and constitutional defects in the institution of
prosecutions which do not affect the jurisdiction of the
Page 411 U. S. 237
trial court. According to the Notes of the Advisory Committee on
Rules, the waiver provision was designed to continue existing law,
which, as exemplified by this Court's decision in
United States
v. Gale, 109 U. S. 65
(1883), was,
inter alia, that defendants who pleaded to an
indictment and went to trial without making any nonjurisdictional
objection to the grand jury, even one unconstitutionally composed,
waived any right of subsequent complaint on account thereof. Not
surprisingly, therefore, the Advisory Committee's Notes expressly
indicate that claims such as petitioner's are meant to be within
the Rule's purview:
"These two paragraphs [12(b)(1) and (2)] classify into two
groups all objections and defenses to be interposed by motion
prescribed by Rule 12(a). In one group are defenses and objections
which must be raised by motion, failure to do so constituting a
waiver. . . ."
". . . Among the defenses and objections in this group are the
following: illegal selection or organization of the grand jury. . .
."
Notes of Advisory Committee following Fed.Rule Crim.Proc. 12, 18
U.S.C.App.
This Court had occasion to consider the Rule's application in
Shotwell Mfg. Co. v. United States, supra, a case
involving tax evasion convictions. In a motion filed more than four
years after their trial, but before the conclusion of direct
review, petitioners alleged that both the grand and petit jury
arrays were illegally constituted because,
inter alia,
"the Clerk of the District Court failed to employ a selection
method designed to secure a cross-section of the population."
[
Footnote 4] 371 U.S. at
371 U. S.
361-362.
Page 411 U. S. 238
Deeming the case controlled by Rule 12(b)(2), the District Court
held a hearing to determine whether there was "cause" warranting
relief from the waiver provision, and it found that
"the facts concerning the selection of the grand and petit
juries were notorious, and available to petitioners in the exercise
of due diligence before the trial."
Id. at
371 U. S. 363.
It concluded that their failure to exercise due diligence, combined
with the absence of prejudice from the alleged illegalities,
precluded the raising of the issue, and the Court of Appeals
affirmed. In this Court, petitioners conceded that Rule 12(b)(2)
applied to their objection to the grand jury array, but they denied
that it applied to the petit jury. Both objections were held
foreclosed by the petitioners' years of inaction, and the lower
courts' application of the Rule was affirmed.
Shotwell
thus confirms that Rule 12(b)(2) precludes untimely challenges to
grand jury arrays, even when such challenges are on constitutional
grounds. [
Footnote 5] Despite
the strong analogy between the effect of the Rule as construed in
Shotwell and petitioner's § 2255 allegations, he
nonetheless contends that
Kaufman v. United States, supra,
establishes that he is not precluded from raising
Page 411 U. S. 239
his constitutional challenge in a § 2255 proceeding. [
Footnote 6]
See Fay v. Noia,
supra. We disagree.
In
Kaufman, the defendant in a bank robbery conviction
sought collateral relief under § 2255, alleging that illegally
seized evidence had been admitted against him at trial over a
timely objection, and that this evidence resulted in the rejection
of his only defense to the charge. The application was denied in
both the District Court and the Court of Appeals on the ground that
it had not been raised on appeal from the judgment of conviction,
and "that a motion under § 2255 cannot be used in lieu of an
appeal." 394 U.S. at
394 U. S. 223.
This Court reversed, however, holding that, when constitutional
claims are asserted, post-conviction relief cannot be denied solely
on the ground that relief should have been sought by appeal.
Ibid.
But the Court in
Kaufman was not dealing with the sort
of express waiver provision contained in Rule 12(b)(2) which
specifically provides for the waiver of a particular
Page 411 U. S. 240
kind of constitutional claim if it be not timely asserted. The
claim in
Kaufman was that the applicable provisions of §
2255, by implication, forbade the assertion of a constitutional
claim of unlawful search and seizure where the defendant failed to
assert the claim on appeal from the judgment of conviction.
[
Footnote 7]
See, e.g.,
Sunal v. Large, 332 U. S. 174,
332 U. S. 179
(1947). The Court held that the statute did not preclude the
granting of relief on such a claim simply because it had not been
asserted on appeal, where there was no indication of a knowing and
deliberate bypass of the appeal procedure. But here, the
Government's claim is not that § 2255 itself limits or precludes
the assertion of petitioner's claim, but that the separate
provisions of Rule 12(b)(2) do so.
Kaufman, therefore, is
dispositive only if the absence of a statutory provision for waiver
in § 2255, and the federal habeas statute, by implication,
precludes the application to post-conviction proceedings of the
express waiver provision found in the Federal Rules of Criminal
Procedure.
Shotwell held that a claim of unconstitutional grand
jury composition, raised four years after conviction, but while the
appeal proceedings were still alive, was governed by Rule 12(b)(2).
Both the reasons for the Rule and the normal rules of statutory
construction clearly indicate that no more lenient standard of
waiver should
Page 411 U. S. 241
apply to a claim raised three years after conviction simply
because the claim is asserted by way of collateral attack, rather
than in the criminal proceeding itself.
The waiver provisions of Rule 12(b)(2) are operative only with
respect to claims of defects in the institution of criminal
proceedings. If its time limits are followed, inquiry into an
alleged defect may be concluded, and, if necessary, cured before
the court, the witnesses, and the parties have gone to the burden
and expense of a trial. If defendants were allowed to flout its
time limitations, on the other hand, there would be little
incentive to comply with its terms when a successful attack might
simply result in a new indictment prior to trial. Strong tactical
considerations would militate in favor of delaying the raising of
the claim in hopes of an acquittal, with the thought that, if those
hopes did not materialize, the claim could be used to upset an
otherwise valid conviction at a time when reprosecution might well
be difficult.
Rule 12(b)(2), promulgated by this Court and, pursuant to 18
U.S.C. § 3771, "adopted" by Congress, governs, by its terms, the
manner in which the claims of defects in the institution of
criminal proceedings may be waived.
See Singer v. United
States, 380 U. S. 24,
380 U. S. 37
(1965). Were we confronted with an express conflict between the
Rule and a prior statute, the force of § 3771, providing that
"[a]ll laws in conflict with such rules shall be of no further
force or effect," is such that the prior inconsistent statute would
be deemed to have been repealed.
Cf. Sibbach v. Wilson &
Co., 312 U. S. 1,
312 U. S. 10
(1941). The Federal Rules of Criminal Procedure do not,
ex
proprio vigore, govern post-conviction proceedings, and, had
Congress in enacting the statutes governing federal collateral
relief specifically there dealt with the issue of waiver, we would
be faced with a difficult question of repeal by implication of such
a provision by the later-enacted
Page 411 U. S. 242
rules of criminal procedure. But Congress did not deal with the
question of waiver in the federal collateral relief statutes, and,
in
Kaufman, this Court held that, since § 2255 had not
spoken on the subject of waiver with respect to claims of unlawful
search and seizure, a particular doctrine of waiver would be
applied by this Court in interpreting the statute.
We think it inconceivable that Congress, having in the criminal
proceeding foreclosed the raising of a claim such as this after the
commencement of trial in the absence of a showing of "cause" for
relief from waiver, nonetheless intended to perversely negate the
Rule's purpose by permitting an entirely different, but much more
liberal, requirement of waiver in federal habeas proceedings. We
believe that the necessary effect of the congressional adoption of
Rule 12(b)(2) is to provide that a claim, once waived pursuant to
that Rule, may not later be resurrected, either in the criminal
proceedings or in federal habeas, in the absence of the showing of
"cause" which that Rule requires. We therefore hold that the waiver
standard expressed in Rule 12(b)(2) governs an untimely claim of
grand jury discrimination not only during the criminal proceeding,
but also later on collateral review.
Our conclusion in this regard is further buttressed by the
Court's observation in
Parker v. North Carolina,
397 U. S. 790,
397 U. S. 798
(1970), decided the year after
Kaufman, that "[w]hether
the question of racial exclusion in the selection of the grand jury
is open in a federal habeas corpus action we need not decide." The
context of the Court's language makes it apparent that the question
was framed in terms of waiver and timely assertion of such a claim
in state criminal proceedings. But if the question were left open
with respect to state proceedings, it must have been at least
patently open with respect to
Page 411 U. S. 243
federal habeas review of federal convictions, where Congress is
the lawgiver both as to the procedural rules governing the criminal
trial and the principles governing collateral review.
II
The principles of Rule 12(b)(2), as construed in
Shotwell, are not difficult to apply to the facts of this
case. Petitioner alleged the deprivation of a substantial
constitutional right, recognized by this Court as applicable to
state criminal proceedings from
Bush v. Kentucky,
107 U. S. 110
(1883), through
Alexander v. Louisiana, 405 U.
S. 625 (1972). But he failed to assert the claim until
long after his trial, verdict, sentence, and appeal had run their
course. In findings challenged only half-heartedly here, the
District Court determined that no motion, oral or otherwise, raised
the issue of discrimination in the selection of the grand jurors
prior to trial. The Court of Appeals affirmed, and, on petition for
rehearing, conducted its own search of the record in a vain effort
to see whether the files or docket entries in the case supported
petitioner's contention that he had made such a motion. We will not
disturb the coordinate findings of these two courts on a question
such as this.
The waiver provision of the Rule therefore coming into play, the
District Court held that there had been no "cause shown" which
would justify relief. It said:
"Petitioner offers no plausible explanation of his failure to
timely make his objection to the composition of the grand jury. The
method of selecting grand jurors then in use was the same system
employed by this court for years. No reason has been suggested why
petitioner or his attorney could not have ascertained all of the
facts necessary to present the objection to the court prior to
trial. The same
Page 411 U. S. 244
grand jury that indicted petitioner also indicted his two white
accomplices. The case had no racial overtones. The government's
case against petitioner was, although largely circumstantial, a
strong one. There was certainly sufficient evidence against
petitioner to justify a grand jury in determining that he should
stand trial for the offense with which he was charged. . . .
Petitioner has shown no cause why the court should grant him relief
from his waiver of the objection to the composition of the grand
jury. . . ."
In denying the relief, the court took into consideration the
question of prejudice to petitioner. This approach was approved in
Shotwell, where the Court stated:
"[W]here, as here, objection to the jury selection has not been
timely raised under Rule 12(b)(2), it is entirely proper to take
absence of prejudice into account in determining whether a
sufficient showing has been made to warrant relief from the effect
of that Rule."
371 U.S. at
371 U. S.
363.
Petitioner seeks to avoid this aspect of
Shotwell by
asserting that there both lower courts had found that petitioners
were not prejudiced in any way by the alleged illegalities,
whereas, under
Peters v. Kiff, 407 U.
S. 493 (1972), prejudice is presumed in cases where
there is an allegation of racial discrimination in grand jury
composition. But
Peters dealt with whether or not a white
man had a substantive constitutional right to set aside his
conviction upon proof that Negroes had been systematically excluded
from the state grand and petit juries which indicted and tried him.
Three Justices dissented from the Court's upholding of such a
substantive right on the ground that no prejudice had been shown,
and three concurred separately in the
Page 411 U. S. 245
judgment. But the three opinions delivered in
Peters,
supra, all indicate a focus on the existence of the
constitutional right, rather than its possible loss through delay
in asserting it. The presumption of prejudice which supports the
existence of the right is not inconsistent with a holding that
actual prejudice must be shown in order to obtain relief from a
statutorily provided waiver for failure to assert it in a timely
manner.
We hold that the District Court did not abuse its discretion in
denying petitioner relief from the application of the waiver
provision of Rule 12(b)(2), and that, having concluded he was not
entitled to such relief, it properly dismissed his motion under §
2255. Accordingly, the judgment of the Court of Appeals is
Affirmed.
[
Footnote 1]
Petitioner was represented throughout the trial by competent,
court-appointed counsel, whose advocacy prompted the Court of
Appeals to compliment him saying:
"We have rarely witnessed a more thorough or more unstinted
expenditure of effort by able counsel on behalf of a client."
409 F.2d 1095, 1101 (CA5 1969).
[
Footnote 2]
The use of the "key man" system was approved in
Scales v.
United States, 367 U. S. 203,
367 U. S. 259
(1961),
affirming 260 F.2d 21, 44-46 (CA4 1958). The
adoption of the Jury Selection and Service Act of 1968, 28 U.S.C.
§§ 1861-1869, has precluded its further use.
[
Footnote 3]
Petitioner also alleged that a timely oral motion in open court
prior to trial was made preserving for him the right to contest the
grand jury array, and that a law student who was researching the
grand jury array was stopped from seeing him.
[
Footnote 4]
Petitioner attempts to distinguish
Shotwell on the
ground that the case "involved legal irregularities which did not
rise to the dimension of the fundamental constitutional right
asserted" herein. (Brief for Petitioner 18.) At 362-363 of the
Court's opinion in
Shotwell, however, the majority
accepted petitioners' assertion of constitutional deprivation at
face value before rejecting their claims on the basis of Rule
12(b)(2).
[
Footnote 5]
We are comforted in this conclusion by the concurrence of all
but one of the courts of appeals that have considered the issue.
See Moore v. United States, 432 F.2d 730, 740 (CA3 1970)
(en banc);
Juelich v. Harris, 425 F.2d 814 (CA7 1970);
United States v. Williams, 421 F.2d 529, 532 (CA8 1970);
Bustillo v. United States, 421 F.2d 131 (CA5 1970); and
Poliafico v. United States, 237 F.2d 97 (CA6 1956).
Contra, Fernandez v. Meier, 408 F.2d 974 (CA9 1969).
[
Footnote 6]
Petitioner relies on the reasoning of
Fernandez, supra,
in arguing that a different waiver rule should apply in § 2255
proceedings. In that case, the defendant argued that the exclusion
of Spanish Americans from his grand and petit juries constituted a
deprivation of constitutional right. The claim was untimely raised,
and the Court of Appeals conceded that failure to present it as
provided in Rule 12(b)(2) resulted in a waiver. Relying, however,
on this Court's decisions in
Fay v. Noia, 372 U.
S. 391 (1963), and
Sanders v. United States,
373 U. S. 1 (1963),
that court held that collateral relief could be denied under § 2255
only upon a showing of a "knowing and deliberate bypass" of a
timely objection. Petitioner concedes that the court misread
Sanders, supra, but he argues that it applied the correct
waiver rule. Although we find it difficult to conceptualize the
application of one waiver rule for purposes of federal appeal and
another for purposes of federal habeas corpus, we will nonetheless
give consideration to petitioner's claim that the cases
interpreting the federal habeas corpus statute set the applicable
standard.
[
Footnote 7]
The Court in
Kaufman made reference to the possibility
of the denial of § 2255 relief as a result of a deliberate bypass
of the suppression procedures established in Fed.Rule Crim.Proc.
41(e).
Kaufman v. United States, 394 U.
S. 217,
394 U. S. 227
n. 8 (1969). But it had no occasion to consider that Rule's effects
on § 2255 motions, since, there, "[a]ppointed counsel had objected
at trial to the admission of certain evidence on grounds of
unlawful search and seizure,"
id. at
394 U. S. 220
n. 3, and the District Court's rationale for denying relief was
that "this matter was not assigned as error on Kaufman's appeal
from conviction, and is not available as a ground for collateral
attack. . . ."
See id. at
394 U. S.
219.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE BRENNAN join, dissenting.
The opinion of the Court obscures the only sensible argument for
the result the majority reaches. I am not persuaded by that
argument, and find the majority opinion clearly defective. I
believe that Rule 12(b)(2), properly interpreted in the light of
the purposes it serves and the purposes served by making available
collateral relief from criminal convictions, does not bar a
prisoner from claiming that the grand jury that indicted him was
unconstitutionally composed if he shows that his failure to make
that claim before trial was not "an intentional relinquishment or
abandonment of a known right or privilege,"
Johnson v.
Zerbst, 304 U. S. 458,
304 U. S. 464
(1938). But first there is some underbrush to be cleared away.
Davis challenged the "key man" system of selection of grand
jurors used in the Northern District of Mississippi in 1968, when
he was indicted, because it was
Page 411 U. S. 246
implemented to exclude qualified Negroes from the grand jury.
[
Footnote 2/1]
Cf. Glasser v.
United States, 315 U. S. 60,
315 U. S. 85-87
(1942);
Dow v. Carnegie-Illinois Steel Corp., 224 F.2d 414
(CA3 1955). The Court notes that the use of the "key man" system
was approved by this Court in
Scales v. United States,
367 U. S. 203
(1961). [
Footnote 2/2] This
observation is both irrelevant and misleading. It is irrelevant
because the Court's holding today bars prisoners from raising
meritorious claims not raised before trial. [
Footnote 2/3] A prisoner like Davis could not contend
after today's decision, for example, that federal jury
commissioners had simply refused to place the names of Negroes in
the jury box used in 1968. That, of course, would have been
unconstitutional.
See Alexander v.
Louisiana,
Page 411 U. S. 247
405 U. S. 625,
405 U. S.
628-629 (1972);
Hill v. Texas, 316 U.
S. 400 (1942). [
Footnote
2/4] The Court's observation is misleading, because, in
Scales, the Court said only that "no in propriety in the
method of choosing grand jurors has been shown" as to a grand jury
convened in the Middle District of North Carolina in 1955, 367 U.S.
at
367 U. S. 206
n. 2, 259. I doubt that the Court meant to suggest that the use of
a "key man" system was immune from constitutional attack. Indeed,
Carter v. Jury Comm'n, 396 U. S. 320
(1970), and the cases there cited, show that systems essentially
the same as a "key man" system may be administered in an
unconstitutional manner. [
Footnote
2/5]
To the extent that our prior decisions speak to the issue in
this case, the Court's decision today seems inconsistent
Page 411 U. S. 248
with them. The Court purports to distinguish
Kaufman v.
United States, 394 U. S. 217
(1969), for example, on the ground that we were there "not dealing
with the sort of express waiver provision contained in Rule
12(b)(2)." I had not thought that words were quite so magical as
that distinction makes them. It is true, of course, that Rule
12(b)(2) provides that
"[d]efenses and objections based on defects in the institution
of the prosecution . . . may be raised only by motion before trial.
. . . Failure to present any such defense or objection as herein
provided constitutes a waiver thereof, but the court for cause
shown may grant relief from the waiver."
Kaufman involved a claim that the prisoner was
convicted on the basis of evidence obtained in an unconstitutional
search. And Rule 41(e) of the Federal Rules of Criminal Procedure
provides that a motion to suppress the use of the evidence obtained
in an unlawful search
"shall be made before trial or hearing unless opportunity
therefor did not exist or the defendant was not aware of the
grounds for the motion, but the court in its discretion may
entertain the motion at the trial or hearing."
In
Kaufman, we indicated that the failure to make a
timely motion to suppress would permit the § 2255 court to deny
relief where that failure was a deliberate bypass of the orderly
procedures set out in the Rules of Criminal Procedure. 394 U.S. at
394 U. S. 227
n. 8. Relief under § 2255 would be barred only if there had been an
intentional relinquishment of a known right. [
Footnote 2/6] Rule 41(e) does not
Page 411 U. S. 249
use the apparently crucial word "waiver." But its structure is
basically the same as that of Rule 12(b)(2): the motions shall be
made at a certain time, and failure to make them may be excused for
cause. Nothing in the opinion of the Court suggests why the use of
the word "waiver" makes such a difference, so that
Kaufman
permits consideration of claims not made in the time set by Rule
41(e) in a § 2255 proceeding, while claims not made in the time set
by Rule 12(b)(2) may not be considered. There is a clear line of
cases in the court of appeals holding that failure to make a timely
motion to suppress evidence bars an attempt to raise the Fourth
Amendment issue on appeal.
See, e.g., United States v.
Ellis, 461 F.2d 962 (CA2 1972);
United States v.
Volkell, 251 F.2d 333 (CA2 1958), and cases cited therein.
Certainly the use of the word "waiver" in Rule 12(b)(2) does not
make any clearer the notice to attorneys that the failure to make a
timely claim about the composition of the grand jury will bar later
attempts to raise that claim.
In light of the similarity between
Kaufman and this
case, the only way that I can understand the Court's action is to
assume that the Court believes there are strong reasons of policy
justifying "an air-tight system of forfeitures,"
Fay v.
Noia, 372 U. S. 391,
372 U. S. 432
(1963), with respect to a claim that the grand jury was
unconstitutionally composed, reasons that are not applicable to a
claim that evidence unconstitutionally seized was used at trial.
All that I can find in the opinion of the Court, however, is one
sentence referring to such policy considerations:
"Strong tactical considerations would militate in favor of
delaying the raising of the claim in hopes of an acquittal, with
the thought that, if those hopes did not materialize, the claim
could be used to upset an
Page 411 U. S. 250
otherwise valid conviction at a time when reprosecution might
well be difficult. [
Footnote
2/7]"
That, I submit, is once again both irrelevant and misleading. It
is misleading because it relies on a mechanical invocation of the
difficulties of reprosecution in a setting where those difficulties
are patently quite small. When evidence used at trial is ordered
suppressed and a retrial required, the prosecution must reconstruct
its case with a new focus; it may have to gather new evidence, or
find new witnesses, or it may have to elicit new testimony from
witnesses who testified before. In such a setting, there may well
be difficulties in reprosecution. But when a new trial is required
so that an indictment may be returned by a properly constituted
grand jury, those difficulties simply do not arise. Nothing in the
previous trial must be redone; indeed, the prosecution could
present its entire case through the testimony given at the previous
trial, if it showed that its witnesses were now unavailable, and
thus that the alleged difficulties in reprosecution were real.
Cf. Mattox v. United States, 156 U.
S. 237 (1895). All that the prosecution might lose is
the enhancement of credibility, if any, that the actual presence of
the witnesses could lend their testimony.
The Court's reference to "[s]trong tactical considerations" is
irrelevant, because a prisoner would properly be held to have
intentionally relinquished his right to raise the constitutional
claim if he failed to raise it for tactical reasons. The only issue
in this case is whether one who claims that he did not
intentionally relinquish a known right is to be afforded the
opportunity to prove that claim, as a step toward establishing that
his rights were, in fact, infringed. Saying that Davis, who makes
just such a claim, cannot be allowed to prove it because some
Page 411 U. S. 251
other prisoners might have made a tactical choice not to raise
the underlying issue, is just not responsive to his argument.
[
Footnote 2/8]
The Solicitor General has urged on us policy considerations that
at least bear on the decision whether the Government's interest in
enforcing an air-tight system of forfeitures with respect to claims
going to the composition of the grand jury is greater than its
interest in enforcing a similar system with respect to claims going
to the admission of illegally seized evidence. He argues that the
crucial difference lies in the ease with which the prosecution can
reconstruct its case on a proper basis. It is relatively easy, he
says, to remedy the return of an indictment by an
unconstitutionally composed grand jury. All that must be done is to
convene a properly composed grand jury. But if the result of a
finding of error is to wash out not just the indictment, but also
an entire trial, that error is very costly to legitimate interests
in economy. Thus, failure to raise a claim relating to the
composition of the grand jury prior to trial may entail large
costs. In contrast, the Solicitor General suggests, failure to
raise a claim before trial relating to the use of the fruits of an
unconstitutional search is not quite so costly. Whenever the
finding that the search was unlawful is made, the prosecution will
have to reconstruct its case rather substantially. New witnesses
may have to be found, and more emphasis must be placed upon the
testimony of witnesses that is not tainted by the search. There is,
on this view, a very important reason for enforcing an air-tight
system of foreclosures
Page 411 U. S. 252
where the claim is that an easily remedied error has been made
-- it is simply much more costly to require retrials in those
cases.
That argument undoubtedly has some force. But it also goes too
far, for it is inconsistent with the power given to reverse a
conviction on the basis of plain error to which no objection had
been made. Fed.Rule Crim.Proc. 52(b). An improper argument by a
prosecutor in his closing argument may be plain error, for example.
Doty v. United States, 416 F.2d 887, 890-891 (CA10 1968),
and cases cited. Yet timely objection might have cut off the
improper argument at a point when an admonition to the jury to
disregard it would adequately protect the defendant's rights. A
system that permits reversal on the ground of plain error to which
no objection had been made, but prohibits reversal on the ground
that timely objection to the composition of the grand jury had not
been made by a defendant who did not intentionally relinquish his
right to object, and that justifies the latter rule in terms of
governmental interests in economy, seems to me perverse.
The Solicitor General's argument is unpersuasive, ultimately,
not alone for the reasons just given, but also because the
legitimate governmental interests that support a strict system of
forfeitures with respect to claims about the composition of the
grand jury are, in my view, outweighed by other important public
interests. [
Footnote 2/9] First,
and most important in this case, we must assure that no one is
excluded from participation in important democratic
Page 411 U. S. 253
institutions like the grand jury because of race. Second,
convicted offenders will be more amenable to rehabilitation when
they know that all their claims of unfairness have been considered,
unless they deliberately refrained from raising them at an earlier
point. Finally, providing the opportunity to raise such claims at
any point in the process, so long as the offender did not willingly
conceal them for strategic reasons, helps guarantee that the
process of criminal justice is fair, and does so without benefiting
someone who was delinquent in his attempts to preserve the fairness
of the process.
"For over 90 years, it has been established that a criminal
conviction of a Negro cannot stand under the Equal Protection
Clause of the Fourteenth Amendment if it is based on an indictment
of a grand jury from which Negroes were excluded by reason of their
race.
Strauder v. West Virginia, 100 U. S.
303 (1880);
Neal v. Delaware, 103 U. S.
370 (1881)."
Alexander v. Louisiana, 405 U.
S. 625,
405 U. S. 628
(1972).
"People excluded from juries because of their race are as much
aggrieved as those indicted and tried by juries chosen under a
system of racial exclusion."
Carter v. Jury Comm'n, 396 U.S. at
396 U. S. 329.
When it fulfills its proper function, the grand jury is a central
institution of our democracy, restraining the discretion of
prosecutors to institute criminal proceedings.
Cf. United
States v. Dionisio, 410 U. S. 1,
410 U. S. 17
(1973);
Wood v. Georgia, 370 U. S. 375,
370 U. S. 390
(1962). Although there may be other ways to vindicate the right of
every qualified citizen to participate in the grand jury without
discrimination based on race,
Carter v. Jury Comm'n,
supra, this Court has consistently allowed criminal defendants
to assert the rights of excluded groups without requiring that they
show prejudice in the particular ease.
Ballard v. United
States, 329 U. S. 187,
329 U. S. 195
(1946). This is contrary to the general rule that no one has
standing to assert the rights of others,
Moose
Lodge No. 107 v.
Page 411 U. S. 254
Irvis, 407 U. S. 163,
407 U. S.
166-167 (1972). It is justified by the importance of
assuring every opportunity to raise claims of unconstitutional
discrimination in the selection of grand juries. That principle
alone, in my view, would warrant a very restrictive view of
attempts to foreclose the opportunity to raise such claims.
But there is more. Offenders who have been indicted by
unconstitutionally composed grand juries undeniably are aggrieved.
There is a paramount public interest that the process of criminal
justice be fair. As we said in
Kaufman v. United States,
394 U.S. at
394 U. S.
226,
"The provision of federal collateral remedies rests . . . upon a
recognition that adequate protection of constitutional rights
relating to the criminal trial process requires the continuing
availability of a mechanism for relief."
The function of collateral relief
"has been to provide a prompt and efficacious remedy for
whatever society deems to be intolerable restraints. Its root
principle is that, in a civilized society, government must
always be accountable to the judiciary for a man's
imprisonment: if the imprisonment cannot be shown to conform with
the fundamental requirements of law, the individual is entitled to
his immediate release."
Fay v. Noia, 372 U.S. at
372 U. S.
401-402 (emphasis added). The traditional scope of
collateral relief requires, again, that prisoners be afforded the
broadest possible opportunity to present claims that their
detention is the result of an unconstitutional procedure. [
Footnote 2/10]
I do not deny that there is an interest in enforcing compliance
with reasonable procedural requirements by a system of forfeitures,
so that claims will be raised at a time when they may easily be
determined and necessary
Page 411 U. S. 255
corrective action taken. But I do not believe that the system of
forfeitures must be so comprehensive and rigid that a person may
not raise a claim of discrimination in the selection of the grand
jury even though he made no deliberate, informed choice to forgo
the claim. Such a system too grievously affects other important
interests.
With these principles in mind, the resolution of this case is
not difficult. Rule 12(b)(2) provides that "the court for cause
shown may grant relief from the waiver." I would hold that, when a
prisoner shows that his failure to raise a claim of discrimination
in the selection of the grand jury was not an intentional
relinquishment of a known right, he has shown cause for relief from
the waiver. [
Footnote 2/11] The
prior cases, which Rule 12(b)(2) is said to have continued, did not
examine in any detail the circumstances in which failure to object
was held to constitute a waiver.
See, e.g., United States v.
Gale, 109 U. S. 65
(1883);
In re Wilson, 140 U. S. 575
(1891).
Cf. Kohl v. Lehlback, 160 U.
S. 293 (1895). It is clear that in none of those cases
did the prisoner show that his failure to object was not an
intentional relinquishment of a known right. [
Footnote 2/12]
Page 411 U. S. 256
Shotwell Mfg. Co. v. United States, 371 U.
S. 341 (1963), does not reflect a contrary
interpretation of Rule 12(b)(2). There, a corporation and two of
its officers were indicted for attempted income tax evasion. Four
years after trial, they attacked the composition of the grand and
petit juries. They contended that there was newly discovered
evidence that the Clerk of the District Court had failed to use a
method of selecting grand jurors designed to secure a cross-section
of the community. Thus, they did not contend that they had not
known of their right to be indicted by a representative grand jury.
Clearly, to establish that that right had been infringed, they had
to find evidence relating to the method of selection. The District
Court found that such evidence was "notorious and available to
petitioners in the exercise of due diligence before the trial."
Id. at
371 U. S. 363.
I have little difficulty in saying that, where one must present
evidence in order to support a constitutional claim, the failure to
exercise due diligence in searching for that evidence is a
deliberate relinquishment of that claim.
The interpretation I would give to "good cause" is supported,
finally, by this Court's insistence that acquiescence in the loss
of constitutional rights is not lightly to be assumed.
See
Johnson v. Zerbst, 304 U. S. 458,
304 U. S. 464
(1938);
Aetna Insurance Co. v. Kennedy, 301 U.
S. 389,
301 U. S. 393
(1937), and cases cited therein at n. 2. It is well established
that a procedural rule that unreasonably
Page 411 U. S. 257
precludes the vindication of constitutional rights itself raises
serious constitutional questions.
See, e.g., Reece v.
Georgia, 350 U. S. 85
(1955);
Davis v. Wechsler, 263 U. S.
22 (1923);
Williams v. Georgia, 349 U.
S. 375,
349 U. S. 399
(1955) (Clark, J., dissenting). In
Johnson v. Zerbst,
supra, this Court adopted a definition of waiver that can be
applied to serve all valid interests in barring untimely assertions
of constitutional rights while not precluding claims by defendants
who have not abused the procedural system. No convincing reasons
have been advanced to adopt a more restrictive definition of waiver
in this case. If Davis did not intentionally relinquish a known
right, I do not see any valid interest in keeping him from
asserting that right in this § 2255 action.
Davis alleged in his motion for collateral relief that "he had
not waived nor abandoned this right to contest the Grand Jury
array." App. 8. This is enough, in a motion submitted by a prisoner
unaided by counsel, to constitute an allegation that he had not
intentionally relinquished a known right.
Cf. Haines v.
Kerner, 404 U. S. 519
(1972). It is a factual allegation not refuted by the record in the
case, 28 U.S.C. § 2255, and Davis should have an opportunity to
prove this allegation. I would therefore reverse the judgment
below.
[
Footnote 2/1]
Davis alleged, in part:
"(b) that the jury commissioner and Clerk of Court for the
Northern District of Mississippi, for the past 20, years
implementing the 'Keyman' and 'selectors,' system, cause nought to
token in their selection of prospective qualifying negro jurymen
because of their race and color in violation of Section 1863."
"(c) that the Northern District Court has, by its affirmative
action taken for the past 20 years, has acquiesced to
systematically, purposefully, unlawfully and unconstitutionally
excluded the prospective qualified resident negroes from the Grand
Jury box in violation of Section 1864."
"(d) that the petitioner, being a member of the Negro race, has
been prejudiced by the aforesaid violation caused by the violators
in carrying out their duties, and has denied petitioner his
constitutional right, guaranteed to him by the Sixth Amendment, the
right to a fair cross-section of the community."
App. 7.
[
Footnote 2/2]
Under a "key man" system, jury commissioners ask persons who are
thought to have wide contacts in the community to supply the names
of prospective jurors.
[
Footnote 2/3]
Similarly, the Jury Selection and Service Act of 1968, 28 U.S.C.
§§ 1861-1869, can be administered in an unconstitutional manner.
Its adoption might have some bearing on our decision to review a
holding that the "key man" system used in Mississippi in 1968 was
constitutional, but the new Act is plainly irrelevant to the
question presented by this case.
[
Footnote 2/4]
Those cases involved discrimination unconstitutional because of
the Equal Protection Clause of the Fourteenth Amendment. But the
Due Process and Grand Jury Clauses of the Fifth Amendment make
unconstitutional the same discrimination in the federal system.
Bolling v. Sharpe, 347 U. S. 497,
347 U. S. 499
(1954).
[
Footnote 2/5]
The Court also notes that its conclusion is
"buttressed by the Court's observation in
Parker v. North
Carolina, 397 U. S. 790,
397 U. S.
798 (1970) . . . that '[w]hether the question of racial
exclusion in the selection of the grand jury is open in a federal
habeas corpus action we need not decide.'"
I am at a loss to understand how that observation buttresses the
Court's holding today. In
Parker, we were reviewing a
state court's decision to deny collateral relief under state law.
The state court had refused to consider Parker's claim that the
grand jury was unconstitutionally composed because he had failed to
raise the claim before trial. That was either an adequate state
ground, in a procedural sense, or a construction of the state
collateral relief statute. No matter how considered, though, the
Court clearly had no jurisdiction to consider the constitutional
claim. It would have been odd indeed had we decided that Parker's
claim could or could not be raised in a federal habeas corpus
action. The observation on which the majority relies can only mean
that the question had not then been decided by this Court. I fail
to understand how the fact that a question had not been resolved
supports any particular resolution of a similar question. In the
sense of "buttressed" used by the majority,
Parker also
buttresses my position.
[
Footnote 2/6]
Kaufman had raised the search issue at trial, but his counsel,
on appeal, did not pursue it. 394 U.S. at
394 U. S. 220
n. 3. Ordinarily, the failure to pursue a claim in the Court of
Appeals bars further review. It does so in the nature of things
with respect to consideration by the Court of Appeals. And, as to
review in this Court,
see Lawn v. United States,
355 U. S. 339,
355 U. S. 362
n. 16 (1958).
That a rule makes a waiver "express," rather than a series of
holdings doing the same, should affect analysis only if the fact
that the waiver is "express" makes some difference in terms of
policy. The Court offers no reasons why the "express" waiver bears
on any relevant policies of § 2255.
[
Footnote 2/7]
The sentence preceding that one in the opinion of the Court
simply says that some incentive to raise the claim is necessary. It
does not say why the system of foreclosures must be air-tight.
[
Footnote 2/8]
The difficulties in proving that a tactical choice was made not
to raise the grand jury claim are, so far as I can tell, no
different from proving that a tactical choice was made not to make
a motion to suppress or to object to a prosecutor's comments on a
defendant's failure to testify, both decisions to which this Court
has applied the traditional test of waiver.
Kaufman v. United
States, 394 U. S. 217
(1969);
Camp v. Arkansas, 404 U. S.
69 (1971).
[
Footnote 2/9]
Since nothing distinguishes this case from others involving, for
example, claims of illegal searches,
Kaufman v. United States,
supra, in terms of the governmental interest in finality in
criminal litigation, I do not discuss that interest here. The
Government must be able to assert interests peculiar to grand jury
claims in order to show that those interests outweigh
countervailing public interests served by leaving those claims open
to later determination.
[
Footnote 2/10]
Indeed, this Court has suggested that any narrowing of those
opportunities would itself be an unconstitutional suspension of the
writ of habeas corpus, Art. I, § 9, cl. 2.
Fay v. Noia,
372 U. S. 391,
372 U. S. 406
(1963);
Sanders v. United States, 373 U. S.
1,
373 U. S. 11-12
(1963).
[
Footnote 2/11]
I do not understand the Court's contention that this is a
"liberal requirement." It is true, of course, that waiver will not
be presumed from a silent record.
Cf. Carnley v. Cochran,
369 U. S. 506,
369 U. S. 516
(1962). But, in a case like this, the record is not silent; it
shows that the defendant did not object to the composition of the
grand jury. (I do not quarrel with the Court's reliance on the
finding made below that, despite Davis' allegations, no pretrial
objection was made.) Thus, the burden is on him to show that he did
not know of his right to object to the composition of the grand
jury, or that, knowing of his rights, he nonetheless did not
exercise them because, for example, he feared that to do so would
generate hostility that would adversely affect his chances of
acquittal.
[
Footnote 2/12]
In a related setting, this Court has interpreted language that
might be thought to preclude later claims in a manner similar to
that I would adopt here.
Sanders v. United States, supra,
involved the question whether failure to raise a claim in a
previous petition for collateral relief precluded consideration of
that claim in a later petition. There was a statutory provision
that "[t]he sentencing court shall not be required to entertain a
second or successive motion for similar relief on behalf of the
same prisoner." 28 U.S.C. § 2255. The term "similar relief" was
interpreted to mean relief based upon the same claim that was
presented before, or upon a claim that had intentionally been
relinquished, 373 U.S. at
373 U. S.
15-18.