454 U.S. 911 (1981)

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U.S. Supreme Court

DAVIS v. JACOBS , 454 U.S. 911 (1981)

454 U.S. 911

William DAVIS v. Thomas L. JACOBS, Commissioner of Probation; and John T. REED v. Carl AJELLO, Attorney General of Connecticut, et al
No. 80-2169 & No. 80-6504

Supreme Court of the United States October 13, 1981

Rehearing Denied Nov. 9, 1981.

See 454 U.S. 1048.

On petitions for writs of certiorari to the United States Court of Appeals for the Second Circuit.

Willie L. DILLARD v. R. J. MARKS, Superintendent, Pennsylvania State Penitentiary, et al.; Allen RODZIEWICZ v. Gary J. HILTON, Superintendent, New Jersey State Prison, et al.; and James Hugh HENSON, Jr. v. Walter W. REDMAN, Warden. Nos. 80-6586, 80-6818, 81-5071.

On petitions for writs of certiorari to the United States Court of Appeals for the Third Circuit.

Durkin WOODRUFF v. Harry L. ALLSBROOK et al.; and Robert Lee SMITH v. James P. MITCHELL, Warden. Nos. 80-6508, 81-5138.

On petitions for writs of certiorari to the United States Court of Appeals for the Fourth Circuit.

William James GIBSON v. Frank C. BLACKBURN, Warden; James FREEMAN v. Joe OLIVER et al.; James Edward CLAYTON v. W. J. ESTELLE, Director, Texas Department of Corrections; and Burrell JOHNSON, Jr. v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections. Nos. 80-6451, 80-6714, 80-6932, 81-5021.

[ Davis v. Jacobs 454 U.S. 911 (1981) ][911-Continued.]

On petitions for writs of certiorari to the United States Court of Appeals for the Fifth Circuit.

Clarence WILLIAMS v. ILLINOIS. No. 81-358.

On petition for writ of certiorari to the United States Court of Appeals for the Seventh Circuit.

Orville Gene VINSON v. Robert R. RAINES, Warden; Frank L. PERKINS v. Robert R. RAINES, Superintendent, Arizona State Prison; and Benny DIXON v. Robert RAINES. Nos. 80-6732, 81-5082, 81-5118.

On petitions for writs of certiorari to the United States Court of Appeals for the Ninth Circuit.

Gary Lee McCOLPIN v. Robert A. ATKINS; and William Thomas HUMPHREY v. OKLAHOMA et al. Nos. 80-6757, 80-6780.

On petitions for writs of certiorari to the United States Court of Appeals for the Tenth Circuit.

The petitions for writs of certiorari are denied.

Page 454 U.S. 911 , 912

Opinion of Justice STEVENS respecting the denial of the petitions for writs of certiorari.

The question raised by the dissenting opinion is whether the order to be entered in these 17 cases should be a dismissal or a denial. Although this question might be characterized as a procedural technicality-because its resolution is a matter of complete indifference to the litigants-the argument made in the dissent merits a response because it creates the impression that the Court's answer to this arcane inquiry demonstrates that the Court is discharging its responsibilities in a lawless manner. The impression is quite incorrect.

The petitioners in these cases are state prisoners. None of them has a meritorious claim. Their habeas corpus petitions were all dismissed by Federal District Judges, and they all unsuccessfully sought review in the United States Court of Appeals. Because none of the petitioners obtained a certificate of probable cause, none of these cases was properly "in" the Court of Appeals and therefore 28 U.S.C. 1254 does not give this Court jurisdiction over the petitions for certiorari. It is perfectly clear, however, that if there were merit to the petitions, the Court would have ample authority to review them in either of two ways.

First, as the Court expressly decided in 1945 in a case that is procedurally identical to these, this Court has jurisdiction under 28 U.S. C. 1651. In House v. Mayo, 324 U.S. 42, the Court conceded that it lacked certiorari jurisdiction under the predecessor to 1254, but squarely held that the All Writs Act, now 28 U. S.C. 1651, authorized the Court to "grant a writ of certiorari to review the action of the court of appeals in declining to allow an appeal to it" and to review the "questions on the merits sought to be raised by the appeal." [454 U.S. 911 , 913]

Primary Holding

A writ of certiorari to the Supreme Court may be granted under 28 U.S.C. Section 1651 when it arises from a decision by a court of appeals that rejects an appeal, and the Supreme Court may weigh the merits of the questions that would have been decided by the appeals court.


Davis filed a habeas corpus action in federal court, as did other state prisoners. The lower court denied their petitions and dismissed the actions. Review of the denial and dismissal was rejected by the court of appeals because Davis had failed to get a certificate of probable cause, which the court of appeals viewed as precluding its jurisdiction. He sought a writ of certiorari for the Supreme Court to review the case.



  • John Paul Stevens (Author)
  • Warren Earl Burger
  • William Joseph Brennan, Jr.
  • Byron Raymond White
  • Thurgood Marshall
  • Harry Andrew Blackmun
  • Sandra Day O'Connor

In addition to granting a writ of certiorari under 28 U.S.C. Section 1651, the Supreme Court also may grant a certificate of probable cause for petitions that appear to have merit, even if a lower court did not authorize an appeal in the case. However, the petitioner in this case does not have a meritorious claim, so it would be improper to grant a certificate of probable cause. Once the determination that a claim lacks merit has been made, the Court must decline certiorari.


  • William Hubbs Rehnquist (Author)
  • Lewis Franklin Powell, Jr.

A certificate of probable cause is an indispensable requirement for an appeal from a decision of a lower court under 28 U.S.C. Section 2253. Under this statutory scheme, Congress intended to foreclose appellate review when a certificate is lacking, so granting review by an extraordinary writ when the petitioner lacks a certificate goes beyond the scope of the judicial power.

Case Commentary

In reality, it is unusual for a writ of certiorari to be granted before the court of appeals issues a final judgment, although this is not technically required. Only an urgent need to resolve an issue on a matter of significant public concern is likely to be reviewed before a judgment by the lower court.

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