Respondent, in custody pursuant to a sentence imposed by the
Superior Court of the District of Columbia, applied in the United
States District Court for the District of Columbia for a writ of
habeas corpus seeking a review of the constitutionality of the
proceedings that led to his conviction and sentence. The District
Court dismissed the application on the basis of D.C.Code Ann. §
23-110(g) (1973), which provides that an application for a writ of
habeas corpus on behalf of a prisoner authorized to apply for
collateral relief by motion in the Superior Court pursuant to the
statute
"shall not be entertained by the Superior Court or by any
Federal or State court if it appears that the applicant has failed
to make a motion for relief under this section or that the Superior
Court has denied him relief. . . ."
The United States Court of Appeals for the District of Columbia
Circuit reversed. Doubting the constitutionality of the statutory
curtailment of the District Court's jurisdiction to issue writs of
habeas corpus, the court construed the statute as merely requiring
the exhaustion of local remedies before a habeas corpus petition
could be filed in the District Court, and concluded that respondent
had exhausted those remedies.
Held:
1. Section 23-110(g) prohibits the District Court from
entertaining respondent's post-conviction application for a writ of
habeas corpus. The statute expressly covers the situation in which
the applicant has exhausted his local remedies, and requires that
the Federal District Court not entertain the habeas application in
such a case. Moreover, the language of § 23-110(g) was deliberately
patterned after 28 U.S.C. § 2255, which created a new
post-conviction remedy in sentencing district courts, and provided
that a habeas corpus petition may not be entertained elsewhere; §
23-110(g) was plainly intended to achieve the parallel result in
the District of Columbia by requiring collateral review of
convictions from the Superior Court to be heard in that court. Pp.
430 U. S.
377-378.
2. Section 23-110(g) does not suspend the privilege of the writ
of habeas corpus in violation of Art. I, § 9, cl. 2, of the
Constitution. Pp.
430 U. S.
379-384.
Page 430 U. S. 373
(a) The final clause of § 2110(g), which allows a Federal
District Court to entertain a habeas corpus application if it
"appears that the remedy by motion is inadequate or ineffective to
test the legality of [the applicant's] detention," avoids any
serious question about the statute's constitutionality. The
substitution of a new collateral remedy that is neither inadequate
nor ineffective does not constitute a suspension of the writ.
Cf. United States v. Hayman, 342 U.
S. 205,
342 U. S. 223.
P.
430 U. S.
381.
(b) The collateral relief available in the Superior Court is
neither ineffective nor inadequate simply because the judges of
that court lack the protections of Art. III judges (life tenure and
salary protection), for they must be presumed competent to decide
all constitutional and other issues that routinely arise in
criminal cases. Pp.
430 U. S.
381-383.
169 U.S.App.D.C. 319, 515 F.2d 1290, reversed.
STEVENS, J., delivered the opinion of the Court, in which
BRENNAN, STEWART, WHITE, MARSHALL, and POWELL, JJ., joined, and in
Part I of which BURGER, C.J., and BLACKMUN and REHNQUIST, JJ.,
joined. POWELL, J., filed a concurring opinion,
post, p.
430 U. S. 384.
BURGER, C.J., filed an opinion concurring in part and concurring in
the judgment, in which BLACKMUN and REHNQUIST, JJ., joined,
post, p.
430 U. S.
384.
MR. JUSTICE STEVENS delivered the opinion of the Court.
Respondent is in custody pursuant to a sentence imposed by the
Superior Court of the District of Columbia. [
Footnote 1] He has filed an application for a writ
of habeas corpus in the United States District Court for the
District of Columbia asking that court to review the
constitutionality of the proceedings that
Page 430 U. S. 374
led to his conviction and sentence. The question presented to us
is whether § 2110(g) of the District of Columbia Code [
Footnote 2] prevents the District Court
from entertaining the application. [
Footnote 3]
Page 430 U. S. 375
Congress enacted 2110(g) as part of the District of Columbia
Court Reform and Criminal Procedure Act of 1970, 84 Stat. 608; that
Act created a new local court system and transferred in its
entirety the Federal District Court's responsibility for processing
local litigation to the Superior Court of the District of Columbia.
[
Footnote 4] Section 2110 of
the Code established a procedure for collateral review of
convictions in the Superior Court; the procedure is comparable to
that authorized by 28 U.S.C. § 2255 for the United States district
courts. Section 2110(g) provides:
"An application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion pursuant
to this section shall not be entertained by the Superior Court or
by any Federal or State court if it appears that the applicant has
failed to make a
Page 430 U. S. 376
motion for relief under this section
or that the Superior
Court has denied him relief, unless it also appears that the
remedy by motion is inadequate or ineffective to test the legality
of his detention. [
Footnote
5]"
(Emphasis added.)
On the authority of this provision, the District Court dismissed
respondent's application. [
Footnote
6] The Court of Appeals reversed. Largely because of its doubts
concerning the constitutionality of a statutory curtailment of the
District Court's jurisdiction to issue writs of habeas corpus, the
Court of Appeals construed the statute as merely requiring
exhaustion of local remedies before a habeas corpus petition could
be filed in the District Court. [
Footnote 7] The Court of Appeals, unlike
Page 430 U. S. 377
the District Court, concluded that respondent had exhausted his
local remedies, and thus remanded the case to the District Court
for consideration of the merits. The Government's petition for
certiorari, which we granted, 424 U.S. 907, did not question the
Court of Appeals' conclusion regarding exhaustion. [
Footnote 8]
I
There are two reasons why § 2110(g) cannot fairly be read as
merely requiring the exhaustion of local remedies before applying
for a writ of habeas corpus in the District Court.
First, the statute expressly covers the situation in which the
applicant has exhausted his local remedies, and requires that the
application be denied in such a case. The statute provides that the
application "shall not be entertained . . . by any Federal . . .
court if it appears that . . . the Superior Court has denied [the
applicant] relief." This unequivocal statutory command to federal
courts not to entertain an application for habeas corpus after the
applicant has been denied collateral relief in the Superior Court
is squarely at odds with the Court of Appeals' view that the
statute deals only with the procedure the applicant must follow
before he may request relief in the District Court.
Second, the language of § 2110(g) was deliberately patterned
after 28 U.S.C. § 2255. [
Footnote
9] That section, enacted in
Page 430 U. S. 378
1948, 62 Stat. 967, substituted a new collateral review
procedure for the preexisting habeas corpus procedure. Prior to the
adoption of § 2255, the district courts for the districts in which
federal prisoners were confined entertained habeas corpus
petitions; since 1948, collateral review has been available
pursuant to § 2255 only in the districts in which the convictions
were obtained. Thus, § 2255 created a new post-conviction remedy in
the sentencing court, and provided that a habeas corpus petition
may not be entertained elsewhere. [
Footnote 10]
See United States v. Haman,
342 U. S. 205.
Just as § 2255 was intended to substitute a different forum and a
different procedure for collateral review of federal convictions, §
23-110(g) was plainly intended to achieve a parallel result with
respect to convictions in the District of Columbia.
Notwithstanding the desirability of adopting a construction of
the statute which would avoid the constitutional issue raised by
respondent, we are convinced that the language of § 2110(g) is
sufficiently plain to require us simply to read it as it is
written. [
Footnote 11]
Page 430 U. S. 379
II
Respondent argues [
Footnote
12] that § 2110(g), if read literally, violates Art. I, § 9,
cl. 2, of the United States Constitution, which provides:
"The Privilege of the Writ of Habeas Corpus shall not
Page 430 U. S. 380
be suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it."
His argument is made in two steps: (1) that the substitution of
a remedy that is not "exactly commensurate" with habeas corpus
relief available in a district court is a suspension of the writ
within the meaning of the Clause; and (2) that, because the judges
of the Superior Court of the District of Columbia do not enjoy the
life tenure and salary protection which are guaranteed to district
judges by Art. III, § 1, of the Constitution, the collateral review
procedure authorized by § 2110(g) of the District of Columbia Code
is not exactly commensurate with habeas corpus relief in the
district courts.
The Government disputes both propositions. First, it contends
that the constitutional provision merely prohibits suspension of
the writ as it was being used when the Constitution was adopted; at
that time, the writ was not employed in collateral attacks on
judgments entered by courts of competent jurisdiction. [
Footnote 13] Second, it contends
that the procedure authorized by § 2110(g) is "exactly
commensurate" with the preexisting habeas corpus remedy.
Page 430 U. S. 381
We are satisfied that the statute is valid, but we do not rest
our decision on either of the broad propositions advanced by the
Government. We are persuaded that the final Clause in § 23-110(g)
avoids any serious question about the constitutionality of the
statute. That clause allows the District Court to entertain a
habeas corpus application if it "appears that the remedy by motion
is inadequate or ineffective to test the legality of [the
applicant's] detention." Thus, the only constitutional question
presented is whether the substitution of a new collateral remedy
which is both adequate and effective should be regarded as a
suspension of the Great Writ within the meaning of the
Constitution. The obvious answer to this question is provided by
the Court's opinion in
United States v. Hayman:
"In a case where the Section 2255 procedure is shown to be
'inadequate or ineffective,' the Section provides that the habeas
corpus remedy shall remain open to afford the necessary hearing.
Under such circumstances, we do not reach constitutional
questions."
342 U.S. at
342 U. S. 223
(footnote omitted). The Court implicitly held in
Hayman,
as we hold in this case, that the substitution of a collateral
remedy which is neither inadequate nor ineffective to test the
legality of a person's detention does not constitute a suspension
of the writ of habeas corpus.
The question which remains is whether the remedy in the Superior
Court of the District of Columbia created by § 23-110 is
"inadequate or ineffective." We have already construed the remedy
created by 28 U.S.C. § 2255 as the exact equivalent of the
preexisting habeas corpus remedy.
Hill v. United States,
368 U. S. 424,
368 U. S. 427.
[
Footnote 14] Since the
scope of the remedy provided
Page 430 U. S. 382
by § 210 is the same as that provided by § 2255, it is also
commensurate with habeas corpus in all respects save one -- the
judges who administer it do not have the tenure and salary
protection afforded by Art. III of the Constitution. [
Footnote 15]
We are fully cognizant of the critical importance of life
tenure, particularly when judges are required to vindicate the
constitutional rights of persons who have been found guilty of
criminal offenses. [
Footnote
16] The relationship between life tenure and judicial
independence was vigorously explained by Mr. Justice Douglas in his
dissenting opinion in
Palmore v. United States,
411 U. S. 389,
411 U. S.
410-422. But, as the Court held in that case, the
Constitution does not require that all persons charged
Page 430 U. S. 383
with federal crimes be tried in Art. III courts. [
Footnote 17] That holding necessarily
determines that the judges of the Superior Court of the District of
Columbia must be presumed competent to decide all issues, including
constitutional issues, that routinely arise in the trial of
criminal cases. We must, therefore, presume that the collateral
relief available in the Superior Court is neither ineffective nor
inadequate simply because the judges of that court do not have life
tenure. [
Footnote 18]
This conclusion is consistent with the settled view that elected
judges of our state courts are fully competent to decide federal
constitutional issues, and that their decisions must be respected
by federal district judges in processing habeas corpus applications
pursuant to 28 U.S.C. § 2254. Normally a state judge's resolution
of a factual issue will be presumed to be correct unless the
factfinding procedure employed by the state court was not adequate.
[
Footnote 19] It is equally
permissible to presume that the judges of the Superior Court of the
District of Columbia will correctly resolve constitutional issues
unless it has been demonstrated, in accordance with the final
clause of § 2110(g), that the remedy afforded by that court is
"inadequate or ineffective." [
Footnote 20]
Page 430 U. S. 384
Finding no reason to doubt the adequacy of the remedy provided
by § 23-110, and having noted that its scope is commensurate with
habeas corpus relief, we hold that § 23-110(g) has not suspended
the writ of habeas corpus within the meaning of Art.I, § 9, cl.
2.
The judgment of the Court of Appeals is reversed.
It is so ordered.
[
Footnote 1]
He received concurrent sentences of 32-96 months and 260 months
following his conviction of grand larceny and larceny from the
District of Columbia Government, in violation of D.C.Code §§
22-2201 and 22-2206 (1973). He is now on parole.
[
Footnote 2]
District of Columbia Code Ann. § 23-110 (1973) provides:
"(a) A prisoner in custody under sentence of the Superior Court
claiming the right to be released upon the ground that (1) the
sentence was imposed in violation of the Constitution of the United
States or the laws of the District of Columbia, (2) the court was
without jurisdiction to impose the sentence, (3) the sentence was
in excess of the maximum authorized by law, (4) the sentence is
otherwise subject to collateral attack, may move the court to
vacate, set aside, or correct the sentence."
"(b) A motion for such relief may be made at any time."
"(c) Unless the motion and 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 prosecuting
authority, 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 (1) the judgment was rendered
without jurisdiction, (2) the sentence imposed was not authorized
by law or is otherwise open to collateral attack, (3) 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, resentence him, grant a new trial, or
correct the sentence, as may appear appropriate."
"(d) A court may entertain and determine the motion without
requiring the production of the prisoner at the hearing."
"(e) The court shall not be required to entertain a second or
successive motion for similar relief on behalf of the same
prisoner."
"(f) An appeal may be taken to the District of Columbia Court of
Appeals from the order entered on the motion as from a final
judgment on application for a writ of habeas corpus."
"(g) An application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion pursuant
to this section shall not be entertained by the Superior Court or
by any Federal or State court if it appears that the applicant has
failed to make a motion for relief under this section or that the
Superior Court has denied him relief, unless it also appears that
the remedy by motion is inadequate or ineffective to test the
legality of his detention."
[
Footnote 3]
In
Pernell v. Southall Realty, 416 U.
S. 363,
416 U. S. 368
n. 4, we noted that a question of this nature remained to be
resolved.
[
Footnote 4]
See Palmore v. United States, 411 U.
S. 389,
411 U. S.
392-393, n. 2, and
Pernell v. Southall Realty,
supra at
416 U. S.
367-368, for a description of the statute and its
background. Prior to reorganization, the jurisdiction of the local
District of Columbia courts was extremely circumscribed. In regard
to criminal cases, for instance, the local courts had jurisdiction
only over misdemeanors and petty offenses, and this jurisdiction
was concurrent with that of the United States District Court. This
left the United States District Court and the United States Court
of Appeals for the District of Columbia Circuit with jurisdiction
over numerous local criminal and civil cases which were proving to
be a great burden to those courts, diverting their energies from
questions of national importance which require prompt resolution by
the federal courts of the Nation's Capital. S.Rep. No. 91-405, p. 3
(1969).
The District of Columbia Court Reform and Criminal Procedure Act
of 1970 was designed to alleviate these burdens by transferring
general jurisdiction over local matters to the Superior Court of
the District of Columbia and all appeals from that court to the
District of Columbia Court of Appeals ("the Highest Court of the
District"), thus creating a system of courts analogous to those
found in the States.
"This transfer will bring the jurisdiction of the U.S. Courts in
the District of Columbia in line with the jurisdiction exercised by
the Federal courts in the several States, and will give the local
courts jurisdiction over all purely local matters."
S.Rep. No. 91-405,
supra at 5.
[
Footnote 5]
The comparable section, 28 U.S.C. § 2255, reads in pertinent
part as follows:
"An application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion pursuant
to this section shall not be entertained if it appears that the
applicant has failed to apply for relief, by motion, to the court
which sentenced him, or that such court has denied him relief,
unless it also appears that the remedy by motion is inadequate or
ineffective to test the legality of his detention."
[
Footnote 6]
In its original order of dismissal, the District Court stated
that it "does not have jurisdiction over this matter, by virtue of
23 D.C.Code § 110(g)." Pet. for Cert. 66a. Later, in response to a
sua sponte per curiam order of the Court of Appeals,
quoted in part, 169 U.S.App.D.C. 319, 321, 515 F.2d 1290, 1292
(1975), the District Court concluded that respondent had not
exhausted his remedies in the local court system. Pet. for Cert.
67a-69a.
[
Footnote 7]
The opinion of the Court of Appeals in this case, 169
U.S.App.D.C. 319, 515 F.2d 1290 (1975), adopted the reasoning
developed at length in its en banc decision in
Palmore v.
Superior Court of District of Columbia, 169 U.S.App.D.C. 323,
515 F.2d 1294 (1975). This Court granted the Government's petition
for certiorari which consolidated for consideration both this case
and
Palmore, 424 U.S. 907, and set the cases for oral
argument. However, on the suggestion of the Solicitor General, we
vacated the judgment in
Palmore and remanded that case to
the Court of Appeals for further consideration in light of our
recent decision in
Stone v. Powell, 428 U.
S. 465. 429 U.S. 915. Palmore had challenged his
conviction on Fourth Amendment grounds.
[
Footnote 8]
After respondent's conviction was affirmed by the District of
Columbia Court of Appeals, he filed a
pro se motion for a
new trial in the Superior Court alleging ineffective assistance of
counsel. An order denying that motion was affirmed on appeal. While
that appeal was pending, respondent filed a second motion in the
Superior Court; although that court denied the motion on
jurisdictional grounds, the Court of Appeals reached the merits and
affirmed.
[
Footnote 9]
The House Report on the Act noted that § 23-110 was "modeled on
28 U.S.C. § 2255 with only necessary technical changes." H.R.Rep.
No. 91-907, p. 117 (1970). The Senate Report has almost identical
language. S.Rep. No. 9105, p. 38 (1969). Moreover, the two
provisions, § 2255 and § 23-110, contain almost identical
language.
[
Footnote 10]
Section 2255 allows an exception for the case in which the
remedy is "inadequate or ineffective"; § 23-110(g) contains the
same exception.
See infra at
430 U. S.
381.
[
Footnote 11]
The Court of Appeals, in
Palmore, supra at 328, 515
F.2d at 1299, gave special regard to
"the principle of constitutional adjudication which makes it
decisive in the choice of
fair alternatives that one
construction [which] may raise serious constitutional questions
[be] avoided by another."
United States v. Rumely, 345 U. S.
41,
345 U. S. 45
(emphasis added). Along the same vein, Mr. Chief Justice Hughes has
noted,
"if a serious doubt of constitutionality is raised, it is a
cardinal principle that this Court will first ascertain whether a
construction of the statute is
fairly possible by which
the question may be avoided."
Crowell v. Benson, 285 U. S. 22,
285 U. S. 62
(emphasis added). Both of these references to that "cardinal
principle" of statutory construction contain the caveat that resort
to an alternative construction to avoid deciding a constitutional
question is appropriate only when such a course is "fairly
possible" or when the statute provides a "fair alternative"
construction.
Here, the statute could not be more plain. It prohibits "any
Federal . . . court" from entertaining a writ of habeas corpus if
the applicant "has failed to make a motion for relief" to the
Superior Court or if "the Superior Court has denied him relief. . .
." Thus, the language of
United States v. Sullivan,
332 U. S. 689,
332 U. S. 693,
is applicable:
"A restrictive interpretation should not be given a statute
merely because Congress has chosen to depart from custom or because
giving effect to the express language employed by Congress might
require a court to face a constitutional question. And none of the
foregoing cases, nor any other on which they relied, authorizes a
court in interpreting a statute to depart from its clear meaning.
When it is reasonably plain that Congress meant its Act to prohibit
certain conduct, no one of the above references justifies a
distortion of the congressional purpose, not even if the clearly
correct purpose makes marked deviations from custom or leads
inevitably to a holding of constitutional invalidity."
[
Footnote 12]
The Court below in
Palmore, 169 U.S.App.D.C. at
333-335, 515 F.2d at 1304-1306, also suggested the possibility that
§ 23-110(g) might be unconstitutional because it denied persons
convicted in the Superior Court equal protection of the laws. These
persons must assert any collateral attack on their convictions
before Art. I judges, whereas persons convicted under general
federal law are allowed to attack their convictions before Art. III
judges. But precisely the same classification is made with respect
to the original trial and appeal process, which we have already
held constitutional.
Palmore v. United States,
411 U. S. 389. It
is certainly reasonable to make the same classification for
collateral review purposes as for purposes of trial and direct
review.
A rational basis for the classification is found in the purpose
behind the Court Reform Act. As one proponent of the Act noted, the
Act
"establishes a complete court system [for the District of
Columbia]. . . . It includes transfer of all, not some, 'local'
jurisdiction to the new court,"
the Superior Court for the District of Columbia, thus maximizing
"the potential of the courts" and minimizing "overlapping
jurisdiction." Statement of Associate Deputy Attorney General
Santarelli, Hearings on Court Reorganization, Criminal Law
Procedures, Bail, and Public Defender Service, before Subcommittee
No. 1 of the House Committee on the District of Columbia, 91st
Cong., 1st Sess., 13 (1969, pt. 1). He saw the transfer of
jurisdiction over "habeas corpus" as part of the overall transfer
of local jurisdiction.
Id. at 14. For a discussion of the
numerous and important purposes behind the enactment of § 2255,
purposes much like those which motivated enactment of § 23-110,
see United States v. Hayman, 342 U.
S. 205,
342 U. S.
210-219.
[
Footnote 13]
THE CHIEF JUSTICE's concurring opinion reminds us that Congress
has broadened the scope of the writ of habeas corpus beyond the
limits that obtained during the 17th and 18th centuries; he cites
us to the article in which Judge Friendly observed that "[w]hat
Congress has given, Congress can
partially take away." Is
Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38
U.Chi.L.Rev. 142, 171 (1970) (emphasis added). That observation is
more cautious than the conclusion that Congress may
totally repeal all post-18th century developments in this
area of the law. In any event, in view of the narrow basis for our
decision, we have no occasion to address the broad issue discussed
by THE CHIEF JUSTICE.
[
Footnote 14]
We there stated:
"Suffice it to say that it conclusively appears from the
historic context in which § 2255 was enacted that 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."
368 U.S. at
368 U. S. 427
(emphasis added).
See also United States v. Hayman, 342
U.S. at
342 U. S.
219.
[
Footnote 15]
In 1949, § 2255 was amended by inserting in the first paragraph
of that provision "Court established by Act of Congress" for "Court
of the United States." 63 Stat. 105. This was done to make "it
clear that the section is applicable in the district courts in the
Territories and possessions." H.R.Rep. No. 352, 81st Cong., 1st
Sess., 18 (1949). The courts of the Territories are created under
Art. I, not Art. III.
Palmore v. United States, 411 U.S.
at
411 U. S.
402-403, and cases cited therein. Since that time, §
2255 motions made by persons convicted in the Territories have been
heard by non-Art. III judges, and such a requirement has been
deemed neither "inadequate [n]or ineffective."
See United
States ex rel. Leguillou v. Davis, 212 F.2d 681 (CA3 1954).
This situation, however, is slightly different from the present
situation, in that a § 2255 motion made to a territorial court is
reviewable in the United States courts of appeals, which are Art.
III courts.
[
Footnote 16]
We note that the respondent has not been deprived entirely of
that protection. Under 28 U.S.C. § 1257(3), this Court possesses
jurisdiction to review final judgments of the District of Columbia
Court of Appeals. Thus, an individual tried in the Art. I courts of
the District of Columbia has two opportunities to seek review
before this Court, whose Members do enjoy life tenure and salary
protection -- first, after affirmance of his conviction by the
District of Columbia Court of Appeals, and second, after a judgment
of that court resulting in the denial of relief under § 23-110.
[
Footnote 17]
Indeed, as was noted by the majority in
Palmore,
"[v]ery early in our history, Congress left the enforcement of
selected federal criminal laws to state courts and to state judges
who did not enjoy the protections prescribed for federal judges in
Art. III."
411 U.S. at
411 U. S.
402.
[
Footnote 18]
The same analysis applies to salary protections. Moreover, the
salary level for judges of the Superior Court and judges of the
District of Columbia Court of Appeals are determined at a rate
equal to 90% of the salary levels accorded United States district
judges and United States circuit judges, respectively. D.C.Code
Ann. §§ 11-703(b), 11-904(b) (1973).
[
Footnote 19]
See 28 U.S.C. §§ 2254(d)(2) and (3).
[
Footnote 20]
In this case, we have no occasion to consider what kind of
showing would be required to demonstrate that the § 23-110 remedy
is inadequate or ineffective in a particular case, or whether the
character of the judge's tenure might be relevant to such a showing
in a case presenting issues of extraordinary public concern.
MR. JUSTICE POWELL, concurring.
I concur in the opinion of the Court. In view, however, of the
separate opinion filed today by THE CHIEF JUSTICE, I write merely
to make clear that I do not read Part II of the Court's opinion as
being incompatible with the views I have expressed previously with
respect to the nature and scope of habeas corpus.
Schneckloth
v. Bustamonte, 412 U. S. 218,
412 U. S. 250
(1973) (POWELL, J., concurring).
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE BLACKMUN and MR.
JUSTICE REHNQUIST join, concurring in part and concurring in the
judgment.
I join Part I of the Court's opinion and concur in the Court's
judgment. However, I find it unnecessary to examine the adequacy of
the remedy provided by § 23-110(g), for I do not consider that the
statute in any way implicates the respondent's rights under the
Suspension Clause, Art. I, § 9, cl. 2, of the Constitution.
The sweep of the Suspension Clause must be measured by reference
to the intention of the Framers and their understanding of what the
writ of habeas corpus meant at the time the Constitution was
drafted. The scope of the writ during the 17th and 18th centuries
has been described as follows:
"[O]nce a person had been convicted by a superior court of
general jurisdiction, a court disposing of a habeas corpus petition
could not go behind the conviction for any purpose other than to
verify the formal jurisdiction of the
Page 430 U. S. 385
committing court."
Oaks, Legal History in the High Court -- Habeas Corpus, 64
Mich.L.Rev. 451, 468 (1966).
Thus, at common law, the writ was available (1) to compel
adherence to prescribed procedures in advance of trial; (2) to
inquire into the cause of commitment not pursuant to judicial
process; and (3) to inquire whether a committing court had proper
jurisdiction. The writ in 1789 was not considered
"a means by which one court of general jurisdiction exercises
post-conviction review over the judgment of another court of like
authority."
Id. at 451.
Dicta to the contrary in
Fay v. Noia, 372 U.
S. 391 (1963), have since been shown to be based on an
incorrect view of the historic functions of habeas corpus.
Schneckloth v. Bustamonte, 412 U.
S. 218,
412 U. S.
252-256 (1973) (POWELL, J., concurring). The fact is
that, in defining the scope of federal collateral remedies, the
Court has invariably engaged in statutory interpretation,
construing what Congress has actually provided, rather than what it
constitutionally must provide.
See Developments in the Law
-- Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1268 (1970). Judge
Friendly has expressed this view clearly:
"It can scarcely be doubted that the writ protected by the
suspension clause is the writ as known to the framers, not as
Congress may have chosen to expand it or, more pertinently, as the
Supreme Court has interpreted what Congress did."
Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal
Judgments, 38 U.Chi.L.Rev. 142, 170 (1970) (footnote omitted).
Since I do not believe that the Suspension Clause requires
Congress to provide a federal remedy for collateral review of a
conviction entered by a court of competent jurisdiction, I see no
issue of constitutional dimension raised by the statute in
question. Under this view of the case, I need not consider the
important constitutional question whether the Suspension
Page 430 U. S. 386
Clause protects the jurisdiction of the Art. III courts. A
doctrine that allowed transfer of the historic habeas jurisdiction
to an Art. I court could raise separation of powers questions,
since the traditional Great Writ was largely a remedy against
executive detention.
See P. Bator, p. Mishkin, D. Shapiro,
& H. Wechsler, Hart & Wechsler's The Federal Courts and the
Federal System 1513-1514 (2d ed.1973). However, I agree with Part I
of the Court's opinion, namely that § 23-110(g) was designed to
preclude access to the District Court, not merely to assure
exhaustion of local remedies, and I would end the inquiry there.
Congress has not provided access to the District Court, and is
under no compulsion to do so. I would therefore reverse the
judgment on this basis.