Petitioner, a state prisoner, applied to a Federal District
Court for habeas corpus without petitioning this Court for
certiorari from a denial of habeas corpus on the merits by the
highest state court or excusing his failure to do so. Limiting its
consideration of the application solely to the question whether it
presented an extraordinary instance that called for disregard of
accustomed procedure of petitioning this Court for certiorari, the
District Court found that nothing extraordinary appeared, and
discharged the writ.
Held: the District Court properly refused to examine
further into the merits of the petition and properly discharged the
writ. Pp.
339 U. S.
201-219.
(a) Ordinarily an application for habeas corpus by one detained
under a state court judgment of conviction for crime will be
entertained by a federal district court only after all state
remedies available, including all appellate remedies in the state
courts, have been exhausted and review has been denied by this
Court.
Ex parte Hawk, 321 U. S. 114. Pp.
339 U. S.
203-208.
(b) Whatever deviation from the established rule may be inferred
from or implied by
Wade v. Mayo, 334 U.
S. 672, is corrected by this decision. Pp.
339 U. S.
208-210.
(c) In § 2254 of the 1948 recodification of the Judicial Code,
Congress accepted the rule of the
Hawk case as a sound
rule to guide consideration of habeas corpus in federal courts. Pp.
339 U. S.
210-214.
(d) Though a refusal of certiorari by this Court may carry no
weight on the merits upon a later application to a federal district
court for habeas corpus, comity ordinarily requires an application
for review by this Court before a lower federal court may be asked
to intervene in state matters. Pp.
339 U. S.
214-217.
(e) In this case, petitioner did not sustain the burden of
showing that circumstances of peculiar urgency existed to require
prompt federal intervention. P.
339 U. S.
219.
172 F.2d 668, affirmed.
Page 339 U. S. 201
Petitioner's application for habeas corpus, to secure his
release from imprisonment under a state court conviction allegedly
in violation of the Federal Constitution, was denied by the
District Court. 77 F. Supp. 553. The Court of Appeals affirmed. 172
F.2d 668. This Court granted certiorari. 337 U.S. 923.
Affirmed, p.
339 U. S.
219.
MR. JUSTICE REED delivered the opinion of the Court.
Petitioner Darr, an inmate of the Oklahoma state penitentiary,
has been denied federal habeas corpus for failure to exhaust his
other available remedies. Petitioner's omission to apply here for
certiorari from the state court's denial of habeas corpus was held
an error, fatal to consideration on the merits. Therefore, the
merits of petitioner's claims of imprisonment in violation of the
Constitution are not before us. The petition for certiorari
requires us to pass solely upon the correctness of the lower
court's view that, ordinarily, a petition for certiorari must be
made to this Court from a state court's refusal of collateral
relief before a federal district court will consider an application
for habeas corpus on its merits.
Petitioner was serving a term in the Oklahoma state penitentiary
when, on November 28, 1930, he was summoned to appear in another
Oklahoma county to plead to two separate charges of armed bank
robbery. In January of 1931, he was tried by jury, and convicted on
the first charge; petitioner then pleaded guilty to the second. He
was sentenced to two terms of forty years each, to run
consecutively, and the first sentence is now being served.
Page 339 U. S. 202
No appeal from the conviction was taken, but, in 1947,
petitioner applied to the Oklahoma Court of Criminal Appeals for
habeas corpus. Judging only from the state court's opinion,
[
Footnote 1] for the original
petition is not included in the record before us, petitioner
alleged in the state court that he had been without funds to employ
counsel, that he had not had the aid of counsel of his own
choosing, and had not been provided sufficient time to procure and
prepare witnesses for his defense. These allegations were reviewed
by the state court and the writ was denied on the merits. No
application for certiorari was made here.
Petitioner then filed in the United States District Court for
the Eastern District of Oklahoma the application for habeas corpus
here at bar. The allegations were those passed upon by the Oklahoma
Court of Criminal Appeals, with the addition of a claim that
petitioner's plea of guilty to the second armed robbery charge had
been coerced. After hearing petitioner's testimony in open court,
the District Judge examined into the merits sufficiently to assure
himself that no extraordinary circumstances existed sufficient to
justify federal inquiry into the merits of petitioner's allegations
without the exhaustion of all other available remedies. [
Footnote 2] He then concluded that the
writ must be discharged as to the first sentence, since petitioner
had not applied for certiorari here from the state court's denial
of habeas corpus. The allegations of a coerced plea underlying the
second sentence could not properly be considered, held the court,
first, because petitioner had not raised the point in the state
proceeding, and further because petitioner is not presently being
detained under that sentence. Therefore no adjudication on the
merits was given. [
Footnote 3]
The Court of Appeals for the
Page 339 U. S. 203
Tenth Circuit affirmed, one judge dissenting from the
proposition that application for certiorari is a requisite step in
the exhaustion of remedy. [
Footnote
4]
It is not argued that the courts below state the law incorrectly
insofar as the second conviction is concerned. It has long been
settled that the federal courts will not consider on habeas corpus
claims which have not been raised in the state tribunal, [
Footnote 5] and, in any event, it is
unquestioned doctrine that only the sentence being served is
subject to habeas corpus attack. [
Footnote 6] Further, since neither court based its
conclusion upon petitioner's failure to appeal from his initial
conviction, that issue is not before us. There is no problem of
jurisdiction or power in the federal courts to consider
applications for habeas corpus. Nor is there at issue the effect of
a refusal of certiorari by this Court upon future applications for
federal habeas corpus by the state prisoner. The issue of
exhaustion of remedy, however, is not only of vital concern to
those who would seek the protection of the Great Writ, but, in the
case of state prisoners, is crucial to the relationship between the
state and federal sovereignties in the exercise of their coordinate
power over habeas corpus. Doubt respecting this issue should not go
unresolved. We therefore granted certiorari. 337 U.S. 923.
The writ of habeas corpus commands general recognition a the
essential remedy to safeguard a citizen against imprisonment by
State or Nation in violation of his constitutional rights.
[
Footnote 7] To make this
protection effective for unlettered prisoners without friends or
funds, federal courts have long disregarded legalistic requirements
in examining applications for the writ and judged the papers
Page 339 U. S. 204
by the simple statutory test of whether facts are alleged that
entitle the applicant to relief. [
Footnote 8]
This favorable attitude toward procedural difficulties accords
with the salutary purpose of Congress in extending in 1867 the
scope of federal habeas corpus beyond an examination of the
commitment papers under which a prisoner was held to the "very
truth and substance of the causes of his detention." [
Footnote 9] Through this extension of the
boundaries of federal habeas corpus, persons restrained in
violation of constitutional rights may regain their freedom. But,
since the 1867 statute granted jurisdiction to federal courts to
examine into alleged unconstitutional restraint of prisoners by
state power, it created an area of potential conflict between state
and federal courts. As it would be unseemly in our dual system of
government for a federal district court to upset a state court
conviction without an opportunity to the state courts to correct a
constitutional violation, the federal courts sought a means to
avoid such collisions. Solution was found in the doctrine of comity
between courts, a doctrine which teaches that one court should
defer action on causes properly within its jurisdiction until the
courts of another sovereignty with concurrent powers, and already
cognizant of the litigation, have had an opportunity to pass upon
the matter. [
Footnote
10]
Since habeas corpus is a discretionary writ, federal courts had
authority to refuse relief as a matter of comity until state
remedies were exhausted. Through this
Page 339 U. S. 205
comity, the doctrine of exhaustion of state remedies has
developed steadily from cases refusing federal habeas corpus before
state trial to a statutory direction that federal courts shall not
grant the writ to a state prisoner until state remedies have been
exhausted.
Ex parte Royall, [
Footnote 11] decided in 1886, held that a federal
district court had jurisdiction to release before trial a state
prisoner who was held in violation of federal constitutional
rights, but it approved denial of the writ as a matter of
discretion. It was not to be presumed that
"the decision of the state court would be otherwise than is
required by the fundamental law of the land, or that it would
disregard the settled principles of constitutional law announced by
this court. . . . [
Footnote
12]"
Analogy was found in earlier cases where state and federal
jurisdiction to attach property had been found to overlap. Apropos
were the words of the Court in
Covell v. Heyman: [
Footnote 13]
"The forbearance which courts of coordinate jurisdiction,
administered under a single system, exercise towards each other,
whereby conflicts are avoided, by avoiding interference with the
process of each other, is a principle of comity with perhaps no
higher sanction than the utility which comes from concord; but
between state courts and those of the United States, it is
something more. It is a principle of right and of law, and
therefore of necessity."
In the same term of court, the doctrine was advanced to its next
stage, for
in Ex parte Fonda, [
Footnote 14] the prisoner sought his federal relief in
this Court after his state conviction, but before he had prosecuted
his appeal to the state appellate tribunal. Stressing the
importance of noninterference
Page 339 U. S. 206
with the orderly processes of appellate review, this Court
denied to writ, for if the trial court had erred to the prejudice
of petitioner's constitutional rights, it could not be assumed that
the state appellate court would suffer the error to go uncorrected.
[
Footnote 15]
The established doctrine was applied to meet the variations
presented by the cases. By 1891, it was clear that a federal
circuit court committed no error in refusing a writ on the ground
that the petitioner had not come to this Court on writ of error,
[
Footnote 16] and a great
body of cases affirmed this holding that the petitioner should be
"put to his writ of error." [
Footnote 17]
Baker v. Grice [
Footnote 18] states the reason for the rule
that, after a final determination of the case by the state court,
the federal courts will even then generally leave the petitioner to
his remedy by writ of error from this Court.
". . . It is an exceedingly delicate jurisdiction given to the
federal courts by which a person under an indictment in a state
court, and subject to its laws, may, by the decision of a single
judge of the federal court, upon a writ of habeas corpus, be taken
out of the custody of the officers of the state and finally
discharged therefrom, and thus a trial by the state courts of an
indictment found under the laws of a state be finally
prevented."
And to this the Court added, in
Markuson v. Boucher,
[
Footnote 19] the explicit
reason why the exhaustion principle must
Page 339 U. S. 207
extend to remedies available in this Court as well as those open
in the state tribunals.
"The jurisdiction is more delicate, the reason against its
exercise stronger, when a single judge is invoked to reverse the
decision of the highest court of a State in which the
constitutional rights of a prisoner could have been claimed. . .
."
In 1913, a petitioner was denied an original writ here even
though he had appealed and had applied for state habeas corpus,
with the comment that writ of error to this Court was required.
[
Footnote 20] And following
next upon the heels of an adjudication that a state habeas corpus
action is a "suit" yielding a final reviewable judgment [
Footnote 21] came the leading case
of
Mooney v. Holohan, [
Footnote 22] clearly establishing the rule that available
collateral attacks in the state tribunals must be exhausted in
addition to direct attacks on the conviction. [
Footnote 23] In 1944, the unanimous per curiam
opinion of
Ex parte Hawk stated the fully developed and
established exhaustion doctrine in its most frequently quoted form.
[
Footnote 24]
"Ordinarily, an application for habeas corpus by one detained
under a state court judgment of conviction for crime will be
entertained by a federal court only after all state remedies
available, including all appellate remedies in the state courts and
in this Court by appeal or writ of certiorari, have been exhausted.
"
Page 339 U. S. 208
The doctrine of
Ex parte Hawk has been repeatedly
approved, [
Footnote 25] and
in
White v. Ragen, the same Court again unanimously
restated that principle in the clearest language. [
Footnote 26]
"Where the highest state court in which a decision could be had
considers and adjudicates the merits of a petition for habeas
corpus, state remedies, including appellate review, are not
exhausted so as to permit the filing of a petition for habeas
corpus in a federal District Court unless the federal question
involved is presented to this Court on certiorari or appeal from
the state court decision."
Thus, comity, which had constrained the lower federal courts to
refuse a grant of the Great Writ when remedies in state courts were
still open, brought forth the related rule that lower federal
courts ordinarily will not allow habeas corpus if the applicant has
not exhausted his remedy in this Court by certiorari or appeal from
state courts' refusal of relief on collateral attack.
In
Wade v. Mayo alone, [
Footnote 27] a case decided less than four years later,
does there appear language that may be construed as a departure
from the established rule. The District Court was allowed to hear
Wade's petition for habeas corpus, even though he had not applied
here for certiorari, because there was grave doubt whether the
state judgment constituted an adjudication of a federal question.
The Court said, at p.
334 U. S.
682:
"That doubt was such as to make it reasonably certain that this
Court would have denied certiorari on the theory that an adequate
state ground appeared
Page 339 U. S. 209
to underlie the judgment. His failure to make this futile
attempt to secure certiorari accordingly should not prejudice his
subsequent petition for habeas corpus in the District Court."
We had pointed out in
White v. Ragen, supra, a per
curiam expressly reiterating the
Hawk doctrine, that where
a state court's
"decision is based upon some other adequate nonfederal ground,
it is unnecessary for the petitioner to ask this Court for
certiorari in order to exhaust his state remedies, since we would
lack jurisdiction to review the decision of the state court.
[
Footnote 28]"
Not limiting its discussion to the holding on the
Hawk
exception, however,
Wade also treated with the general
Hawk rule of the necessity for review here before seeking
the writ in the federal district court. The thought behind the
language on that point evidently was that review here is not
usually required as a condition to a hearing on the merits in the
district court.
Wade did recognize that failure to come
here might be relevant in determining whether a district court
should entertain an application. On p.
334 U. S. 680,
it is said:
"After state procedure has been exhausted, the concern is with
the appropriate federal forum in which to pursue further the
constitutional claim. The choice lies between applying directly to
this Court for review of the constitutional issue by certiorari or
instituting an original habeas corpus proceeding in a federal
district court. Considerations of prompt and orderly procedure in
the federal courts
Page 339 U. S. 210
will often dictate that direct review be sought first in this
Court. And where a prisoner has neglected to seek that review, such
failure may be a relevant consideration for a district court in
determining whether to entertain a subsequent habeas corpus
petition."
We do not stop to reexamine the meaning of
Wade's
specific language. Whatever deviation
Wade may imply from
the established rule will be corrected by this decision.
Ex parte Hawk prescribes only what should "ordinarily"
be the proper procedure; all the cited cases from
Ex parte
Royall to
Hawk recognize that much cannot be
foreseen, and that "special circumstances" justify departure from
rules designed to regulate the usual case. The exceptions are few,
but they exist. [
Footnote
29] Other situations may develop.
Compare Moore v.
Dempsey, 261 U. S. 86.
Congress has now made statutory allowance for exceptions such as
these, leaving federal courts free to grant habeas corpus when the
exist "circumstances rendering such [state] process ineffective to
protect the rights of the prisoner." 28 U.S.C. § 2254.
In § 2254 of the 1948 recodification of the Judicial Code,
Congress gave legislative recognition to the
Hawk rule for
the exhaustion of remedies in the state courts and this Court.
[
Footnote 30] This was done
by embodying in the new statute
Page 339 U. S. 211
the rulings drawn from the precedents. [
Footnote 31] The rulings had been definitively
restated in
Hawk. That case had represented an effort by
this Court to clear the way for prompt and orderly consideration of
habeas corpus petitions from state prisoners. This Court had caused
the
Hawk opinion to be distributed to persons seeking
federal habeas corpus relief from state restraint and the opinion
had been generally cited and followed. [
Footnote 32] There is no doubt that Congress thought
that the desirable rule drawn from the existing precedents was
stated by
Hawk, for the statutory reviser's notes inform
us that
"This new section is declaratory of existing law as affirmed by
the Supreme Court.
See Ex parte Hawk, 321 U. S.
114 (1944). [
Footnote
33]"
While this section does not refer expressly to the requirement
for application to this Court for review, it must be read in the
light of the statement quoted on p.
339 U. S. 207
supra, from
Hawk. So read, there was occasion
neither
Page 339 U. S. 212
for the draftsmen of § 2254 to make reference to review in this
Court, nor for the committees of the House or Senate or members of
Congress to comment upon it. It is immaterial whether, as a matter
of terminology, it is said that review in this Court of a state
judgment declining relief from state restraint is a part of the
state judicial process which must be exhausted, or whether it is
said to be a part of federal procedure. The issue cannot be settled
by use of the proper words.
Hawk treated review here as a
state remedy.
Wade thought it was not state procedure. But
undoubtedly review here is a part of the process by which a person
unconstitutionally restrained of his liberty may secure redress.
Ex parte Hawk had made it clear that all appellate
remedies available in the state court and in this Court must be
considered as steps in the exhaustion of the state remedy in the
sense that the term is used, perhaps inexactly, in the field of
habeas corpus. [
Footnote 34]
Consideration of the legislative
Page 339 U. S. 213
history of § 2254 reveals no suggestion that the draftsmen
intended to alter the sense of the term as defined in
Hawk
or to differentiate between exhaustion of state remedies and review
in this Court. All the evidence manifests a purpose to enact
Hawk into statute. The reviser's notes, explicitly stating
this purpose, remained unchanged throughout the bill's legislative
progress. [
Footnote 35] So
did the statement of the exhaustion principle contained in the
first paragraph of § 2254 down to the first "or." [
Footnote 36] None of the changes or
additions made by the Senate to § 2254 affected the problem of
review here. They were directed at other issues. [
Footnote 37]
Page 339 U. S. 214
It seems sure that Congress drafted and enacted § 2254 expecting
review here in conformity with the
Hawk rule. Nothing
indicates to us a desire on the part of Congress to modify the
language. We think the rule of the
Hawk case that
ordinarily requires an effort to obtain review here has been
accepted by Congress as a sound rule to guide consideration of
habeas corpus in federal courts.
There is an insistence voiced by the dissent that we determine
what effect the lower federal courts should accord a denial of
certiorari by this Court when the state prisoner later applies for
federal habeas corpus. The issue of the effect of such a denial
apparently could arise only in a case where, after our refusal, the
state prisoner presented his application to another federal court.
It is not here in this case. We doubt the effectiveness of a
voluntary statement on a point not in issue. [
Footnote 38] Whether a refusal to grant
certiorari imports an opinion on any issue or not, the reason
persists for requiring an application here from the state refusal
before application to another federal court.
There should be no controversy over whether the refusal of
certiorari "would serve the purpose of an adjudication on the
merits." All the authorities agree that
res judicata does
not apply to applications for habeas corpus. The courts must be
kept open to guard against injustice
Page 339 U. S. 215
through judicial error. [
Footnote 39] Even after this Court has declined to review
a state judgment denying relief, other federal courts have power to
act on a new application by the prisoner. [
Footnote 40] On that application, the court may
require a showing of the record and action on prior applications,
and may decline to examine further into the merits because they
have already been decided against the petitioner. [
Footnote 41] Thus, there is avoided abuse
of the writ by repeated attempts to secure a hearing on frivolous
grounds, and repeated adjudications of the same issues by courts of
coordinate powers.
In this way the record on certiorari in this Court is brought to
the attention of the trial court. There have been statements made
in former opinions of this Court as to the effect of denial of
petitions for habeas corpus. [
Footnote 42] Records presented to this Court on petitions
in habeas corpus cases raise many different issues. There may be
issues of state procedure, questions of fact regarding the alleged
violations of constitutional rights, and issues of law respecting
the scope of constitutional rights -- problems made difficult by
the frequent practice of state courts to dismiss the applications
without opinion. If this Court has doubts concerning the basis of
state court judgments, the matter may be handled as in
Burke v.
Georgia, 338 U.S. 941, with an express direction that the
petitioner may proceed in the federal district court without
prejudice from the denial of his petition for certiorari. If the
District Court feels that error may have occurred, it has power to
examine the application to see if circumstances exist to justify it
in holding a hearing on the
Page 339 U. S. 216
merits. Such freedom of action protects the Great Writ without
trivializing it. [
Footnote
43]
But it is argued that, if the denial of certiorari mean nothing,
the result of our decision is to force a "meaningless step." We do
not agree. Though our denial of certiorari carry no weight in a
subsequent federal habeas corpus proceeding, we think a petition
for certiorari should nevertheless be made before an application
may be filed in another federal court by a state prisoner. The
requirement derives from the basic fact that this republic is a
federation, a union of states that has created the United States.
We have detailed the evolution of and the reason for the conclusion
that the responsibility to intervene in state criminal matters
rests primarily upon this Court. It is this Court which ordinarily
should reverse state court judgments concerning local criminal
administration. The opportunity to meet that constitutional
responsibility should be afforded. Even if the District Court may
disregard our denial of certiorari, the fact that power to overturn
state criminal administration must not be limited to this Court
alone does not make it less desirable to give this Court an
opportunity to perform its duty of passing upon charges of state
violations of federal constitutional rights. This Court has evolved
a procedure which assures an examination into the substance of a
prisoner's protest against unconstitutional detention without
allowing destructive abuse of the precious guaranty of the Great
Writ. Congress has specifically approved it. Though a refusal of
certiorari have no effect upon a later application for federal
habeas corpus, a petition for certiorari here ordinarily should be
required.
The answer to petitioner's argument that he should not be
required to seek review here from a state's refusal
Page 339 U. S. 217
to grant collateral relief before applying to other federal
courts involves a proper distribution of power between state and
federal courts. The sole issue is whether comity calls for review
here before a lower federal court may be asked to intervene in
state matters. We answer in the affirmative. Such a rule accords
with our form of government. Since the states have the major
responsibility for the maintenance of law and order within their
borders, the dignity and importance of their role as guardians of
the administration of criminal justice merits review of their acts
by this Court before a prisoner, as a matter of routine, may seek
release from state process in the district courts of the United
States. It is this Court's conviction that orderly federal
procedure under our dual system of government demands that the
state's highest courts should ordinarily be subject to reversal
only by this Court, and that a state's system for the
administration of justice should be condemned as constitutionally
inadequate only by this Court. From this conviction springs the
requirement of prior application to this Court to avoid unseemly
interference by federal district courts with state criminal
administration.
As the
Hawk requirement, we think, has always been the
rule, no change in procedure is necessary, and the reiteration of
the rule in this decision can, of course, result in no shifting of
the burden of work among federal courts. [
Footnote 44] No person restrained by state process
could heretofore have been certain of a hearing on the merits of
his application to a federal district court unless he had sought
review in this Court of the state's refusal to release him.
[
Footnote 45] Further, the
rule contributes toward expeditious administration, since it raises
the constitutional issue in a federal forum immediately, without
the necessity of a second trial
Page 339 U. S. 218
court proceeding and the compilation of a second record. And
while the rule has the merit of reasonable certainty, it does not
err on the side of unreasonable rigidity. Flexibility is left to
take care of the extraordinary situations that demand prompt
action. Solicitous as we are that no man be unconstitutionally
restrained and that prompt, certain, and simple methods for redress
be available, those ends for which modern habeas corpus has been
evolved can best be achieved by requiring in ordinary cases the
exhaustion of state remedies and review here.
The present case involves a refusal on the merits of state
collateral relief from a conviction allegedly obtained in violation
of the Constitution. No review was sought in this Court of the
state's refusal. Instead, without alleging that review had been
sought in this Court and without reliance upon any pleaded facts to
excuse such failure, the petitioner filed his application for this
habeas corpus in the District Court. Limiting its consideration of
the application solely to the question as to whether this was an
extraordinary instance that required disregard of accustomed
procedure, the District Court found that this was not a case of
peculiar urgency. We agree with the lower court's conclusion that
it should go no further into consideration of the application. A
conviction after public trial in a state court by verdict or plea
of guilty places the burden on the accused to allege and prove
primary facts, not inferences, that show, notwithstanding the
strong presumption of constitutional regularity in state judicial
proceedings, that, in his prosecution, the state so departed from
constitutional requirements as to justify a federal court's
intervention to protect the rights of the accused. [
Footnote 46] The petitioner has the burden
also of
Page 339 U. S. 219
showing that other available remedies have been exhausted or
that circumstances of peculiar urgency exist. Nothing has been
pleaded or proved to show that here exceptional circumstances exist
to require prompt federal intervention. Oklahoma denied habeas
corpus after obviously careful consideration. [
Footnote 47] If that denial violated federal
constitutional rights, the remedy was here, not in the District
Court, and the District Court properly refused to examine the
merits.
Affirmed.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of this case.
MR. JUSTICE BURTON, with whom MR. JUSTICE CLARK joins, concurs
in the judgment and opinion of the Court, except for any indication
it may contain that, although the reasons for a denial of
certiorari are not stated, they nevertheless may be inferred from
the record. He believes that the nature of the proceeding is such
that, when the reasons for a denial of certiorari are not stated,
the denial should be disregarded in passing upon a subsequent
application for relief, except to note that this source of possible
relief has been exhausted.
[
Footnote 1]
Ex parte Darr, 84 Okl.Cr. 352,
182
P.2d 523.
[
Footnote 2]
77 F. Supp. 553,
556.
[
Footnote 3]
77 F. Supp. 553.
[
Footnote 4]
172 F.2d 668.
[
Footnote 5]
Davis v. Burke, 179 U. S. 399.
[
Footnote 6]
McNally v. Hill, 293 U. S. 131.
[
Footnote 7]
Hawk v. Olson, 326 U. S. 271,
326 U. S.
274.
[
Footnote 8]
Holiday v. Johnston, 313 U. S. 342,
313 U. S. 350;
Price v. Johnston, 334 U. S. 266,
334 U. S.
291-292; 28 U.S.C. § 2242, restating R.S. § 754.
[
Footnote 9]
See Hawk v. Olson, supra, at
326 U. S.
274-275, notes 3, 4.
[
Footnote 10]
Comity through discretion in granting habeas corpus had an
antecedent in an early statutory command restraining federal
injunctive interference with state courts. 28 U.S.C. § 2283, 1
Stat. 334, § 5;
see Bowles v. Willingham, 321 U.
S. 503.
Cf. the three-judge district court
provisions, 28 U.S.C. §§ 2281, 2284.
[
Footnote 11]
117 U. S. 117 U.S.
241.
[
Footnote 12]
117 U. S. 117 U.S.
241,
117 U. S. 252;
Cook v. Hart, 146 U. S. 183.
[
Footnote 13]
111 U. S. 111 U.S.
176,
111 U. S.
182.
[
Footnote 14]
117 U. S. 117 U.S.
516.
[
Footnote 15]
In re Duncan, 139 U. S. 449,
139 U. S.
454.
[
Footnote 16]
In re Wood, 140 U. S. 278.
[
Footnote 17]
In re Jugiro, 140 U. S. 291;
In re Frederich, 149 U. S. 70,
149 U. S. 77-78;
New York v. Eno, 155 U. S. 89,
155 U. S. 98;
Pepke v. Cronan, 155 U. S. 100;
Whitten v. Tomlinson, 160 U. S. 231,
160 U. S. 242;
Tinsley v. Anderson, 171 U. S. 101,
171 U. S.
104-105;
Minnesota v. Brundage, 180 U.
S. 499,
180 U. S. 503;
Reid v. Jones, 187 U. S. 153;
Urquhart v. Brown, 205 U. S. 179,
205 U. S.
181-182;
United States ex rel. Kennedy v.
Tyler, 269 U. S. 13,
269 U. S.
17.
[
Footnote 18]
169 U. S. 169 U.S.
284,
169 U. S.
291.
[
Footnote 19]
175 U. S. 175 U.S.
184,
175 U. S. 187.
[
Footnote 20]
Ex parte Spencer, 228 U. S. 652,
228 U. S.
660-661.
[
Footnote 21]
New York ex rel. Bryant v. Zimmerman, 278 U. S.
63,
278 U. S.
70.
[
Footnote 22]
294 U. S. 294 U.S.
103.
[
Footnote 23]
[
Footnote 24]
321 U. S. 321 U.S.
114,
321 U. S.
116-117.
[
Footnote 25]
[
Footnote 26]
324 U. S. 760,
324 U. S.
764.
[
Footnote 27]
334 U. S. 334 U.S.
672.
[
Footnote 28]
324 U. S. 324 U.S.
760,
324 U. S. 765.
In the
White case, we concluded that the state ground was
the refusal by the Supreme Court of Illinois to entertain
applications with possible fact controversies. Pp.
324 U. S.
766-767. We made it clear that, while proper procedure
does not require review in this Court of a judgment denying habeas
corpus on an adequate state ground, other available state remedies
must be exhausted before an application should be entertained in a
district court. P.
324 U. S.
767.
[
Footnote 29]
See White v. Ragen, 324 U. S. 760;
Ex parte Royall, 117 U. S. 241,
117 U. S.
251.
[
Footnote 30]
Young v. Ragen, 337 U. S. 235,
337 U. S. 238,
reads:
"An application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted unless it appears that the applicant has exhausted
the remedies available in the courts of the State, or that there is
either an absence of available State corrective process or the
existence of circumstances rendering such process ineffective to
protect the rights of the prisoner."
"An applicant shall not be deemed to have exhausted the remedies
available in the courts of the State, within the meaning of this
section, if he had the right under the law of the State to raise,
by any available procedure, the question presented."
[
Footnote 31]
Hearings before a Subcommittee of the Senate Judiciary Committee
on H.R.3214, April 22 to June 7, 1948, 80th Cong., 2d Sess., p. 28.
See 28 U.S.C.Congressional Service, p. XXVIII; H.R.Rep.
No. 308 on H.R.3214, 80th Cong., 1st Sess., p. 3.
[
Footnote 32]
See Lyon v. Harkness, 151 F.2d 731, 733;
United
States ex rel. Monsky v. Warden of Clinton State Prison, 163
F.2d 978, 980;
Stonebreaker v. Smyth, 163 F.2d 498, 501,
502;
Nusser v. Aderhold, 164 F.2d 127;
Makowski v.
Benson, 158 F.2d 158;
United States ex rel. Ross v.
Nierstheimer, 159 F.2d 994;
Guy v. Utecht, 144 F.2d
913, 915;
Gordon v. Scudder, 163 F.2d 518;
Herzog v.
Colpoys, 79 U.S.App.D.C. 81, 143 F.2d 137, 138.
[
Footnote 33]
See S.Rep. No. 1559, 80th Cong., 2d Sess., p. 9 and
H.R.Rep. No. 308, 80th Cong., 1st Sess., p. A180.
[
Footnote 34]
Subsequent statements by Judge John J. Parker, who served as
Chairman of the Judicial Conference of Senior Circuit Judges,
Committee on Habeas Corpus, are instructive.
". . . The thing in mind in the drafting of this section was to
provide that review of state court action be had so far as possible
only by the Supreme Court of the United States, whose review of
such action has historical basis, and that review not be had by the
lower federal courts, whose exercise of such power is unseemly, and
likely to breed dangerous conflicts of jurisdiction. . . . One of
the incidents of the state remedy is [the] right to apply to the
Supreme Court for certiorari. If a petitioner has failed to make
such application after the refusal of the state court to release
him, he cannot be said to have exhausted the remedies available to
him under state procedure, provided he has the right to apply again
to the state courts for relief as a basis for application to the
Supreme Court for certiorari. . . . The fact that certiorari from
the Supreme Court to the state court may be called a federal remedy
is not determinative of the question here involved. The crucial
matter is that petitioner still has a right to attack, in the
courts of the state, the validity of his conviction, and, upon the
record made in such attack, to petition the highest court of the
land for a review. So long as such right remains, he does not have,
and ought not have, the right to ask a review by one of the lower
federal courts. . . ."
Parker, Limiting the Abuse of Habeas Corpus, 8 F.R.D. 171,
176-177.
Wade v. Mayo, supra, had no effect on the discussion of
§ 2254, since it came down two days prior to the enactment of the
new code, too late for consideration.
[
Footnote 35]
See H.R.Rep. No. 308, 80th Cong., 1st Sess., p. A 180,
and final reviser's note to § 2254.
[
Footnote 36]
[
Footnote 37]
The two exceptions at the last of the first paragraph provide
for particular situations in the states. The definition of
exhaustion in the last paragraph was made by the Senate at the
instance of the Judicial Conference of Senior Circuit Judges.
S.Rep. No. 1559, 80 Cong., 2d Sess., p. 9. Report of the Judicial
Conference, September Session 1947, p. 17.
H.R. 3214 had permitted federal habeas corpus not only where
state remedies had been exhausted, but where "there is no adequate
remedy available in" the state court. The Senate Report informs us
that the purpose of the Senate amendment was
"to substitute detailed and specific language for the phrase 'no
adequate remedy available.' That phrase is not sufficiently
specific and precise, and its meaning should therefore be spelled
out in more detail in the section as is done in the amendment."
S.Rep. No. 1559, 80th Cong., 2d Sess., p. 10.
[
Footnote 38]
Compare Bowen, L.J. in
Cooke v. New River Co.,
38 Ch.D. 56, 70-71:
". . . like my Brothers who sit with me, I am extremely
reluctant to decide anything except what is necessary for the
special case, because I believe by long experience that judgments
come with far more weight and gravity when they come upon points
which the Judges are bound to decide, and I believe that
obiter
dicta, like the proverbial chickens of destiny, come home to
roost sooner or later in a very uncomfortable way to the Judges who
have uttered them, and are a great source of embarrassment in
future cases."
Cohens v.
Virginia, 6 Wheat. 264,
19 U. S.
399-400;
Wright v. United States, 302 U.
S. 583,
302 U. S.
593-594.
[
Footnote 39]
Salinger v. Loisel, 265 U. S. 224,
265 U. S.
230.
[
Footnote 40]
Ex parte Royall, 117 U. S. 241.
[
Footnote 41]
[
Footnote 42]
Ex parte Hawk, 321 U. S. 114,
321 U. S. 117;
House v. Mayo, 324 U. S. 42,
324 U. S. 48;
White v. Ragen, 324 U. S. 760,
324 U. S.
764-765.
[
Footnote 43]
Dorsey v. Gill, 80 U.S.App.D.C. 9, 148 F.2d 857.
[
Footnote 44]
See note 32
supra.
[
Footnote 45]
Wade v. Mayo, 334 U. S. 672,
334 U. S.
681.
[
Footnote 46]
In re Cuddy, 131 U. S. 280;
Johnson v. Zerbst, 304 U. S. 458,
304 U. S. 468;
Walker v. Johnston, 312 U. S. 275,
312 U. S. 286;
Hawk v. Olson, 326 U. S. 271,
326 U. S. 279.
[
Footnote 47]
Ex parte Darr, 84 Okl.Cr. 352,
182
P.2d 523.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BLACK joins,
dissenting.
*
This case concerns the exercise by the District Courts of their
habeas corpus jurisdiction on behalf of State prisoners when a
petition for certiorari to review a State court's determination of
a federal claim was not first brought in this Court. In the
generality of instances the issue is whether denial of certiorari
is a prerequisite to
Page 339 U. S. 220
resort to the District Courts. The case thus raises serious
questions affecting the relations between State and federal
authorities, as well as between this Court and the lower federal
courts. My view in brief is that federal courts must withhold
interference with State criminal justice until every opportunity
available in the State courts for the vindication of a federal
right has been exhausted. Whether the State remedies have been so
exhausted often involves elusive questions of local law with which
district judges are more familiar than we can be without the light
the lower courts afford us. Therefore, the power of the District
Courts to issue a writ of habeas corpus should not be barred simply
because a petition for certiorari was not first made in this Court.
To hold otherwise is to disregard the settled rule that denial of
certiorari has no legal significance or, in the alternative, if
denial of certiorari remains without bearing on the merits in
habeas corpus as in other cases, to require the State prisoner to
go through the motion of securing a denial is to command a gesture
which is meaningless to him and burdensome to this Court. In any
event, to leave the District Courts in the dark as to what a denial
of certiorari means in habeas corpus cases is not consistent with
the fair administration of justice.
1. The course of our decisions on the power of the lower federal
courts to entertain an application for a writ of habeas corpus on
behalf of State prisoners has not run smooth. There is a reason.
This seemingly technical problem of jurisdiction concerns the
relation of the United States and the courts of the United States
to the States and the courts of the States. Under any
circumstances, this "is a very delicate matter that has occupied
the thoughts of statesmen and judges for a hundred years. . . ."
Memorandum of Mr. Justice Holmes, August 20, 1927, denying an
application for stay pending a petition for certiorari. 5 The
Sacco-Vanzetti Case 5516.
Page 339 U. S. 221
Prior to the Civil War, habeas corpus was available in the
United States courts, barring limited exceptions, only for those in
federal custody. The Act of February 5, 1867, extended the power of
the United States courts to grant writs of habeas corpus to "all
cases where any person may be restrained of his . . . liberty in
violation of the constitution, or of any treaty or law of the
United States. . . ." 14 Stat. 385. A conflict between State and
federal authorities in relation to the administration of criminal
justice touches that "very delicate matter" at its most sensitive
point. The Act of 1867 opened wide the door to that conflict. It
has become intensified during the last twenty years because of the
increasing subjection of State convictions to federal judicial
review through the expanded concept of due process.
See, e.g.,
Powell v. Alabama, 287 U. S. 45, and
Mooney v. Holohan, 294 U. S. 103. It
ought not to be too surprising therefore that the full implications
of federal restrictions upon the free range of a State's criminal
justice have taken time to unfold.
2. Decisions on matters of procedure within the Court's control
ought not to be like shifting sand. Quick fluctuations in them
should be avoided unless a rule of practice has proven itself
mischievous in practice. The real question before us in this case
is whether
Wade v. Mayo, 334 U. S. 672,
should be overruled. Whether this overruling is to be done
forthrightly by two words saying the case "is overruled" or the
overruling is euphemistically done by fifteen words hardly changes
the fact. Respect for an explicit adjudication on a matter of
procedure very recently rendered after the fullest consideration,
as well as the soundness of the decision, should lead us to adhere
to
Wade v. Mayo.
3. The weight which attaches to a decision of this Court
particularly on matters of practice is, naturally enough, affected
by the circumstances attending it. Apart
Page 339 U. S. 222
from the intrinsic justification of
Wade v. Mayo on
grounds of policy, to which I shall shortly advert, that decision
was a product of the deliberative process at its weightiest. On
original submission in October, 1947, and full consideration by the
Court, the case was restored to the docket in November, 1947, was
resubmitted on March 9, 1948, received thorough reconsideration by
the Court, and, after long incubation, was decided on June 14,
1948. The procedural issue which received this unusual attention
was thus phrased in the Court's opinion:
"whether it was proper for a federal district court to entertain
a habeas corpus petition filed by a state prisoner who, having
secured a ruling from the highest state court on his federal
constitutional claim, had failed to seek a writ of certiorari in
this Court."
334 U.S. at
334 U. S.
674-675.
This is the way the issue was framed in the dissenting
opinion:
"The first question in this case is whether Wade's failure to
bring a writ of certiorari to this Court from the judgment of the
Florida Supreme Court in his state habeas corpus proceeding should
affect his effort to obtain release through a federal writ of
habeas corpus. Or, to rephrase the problem, should certiorari to
this Court be considered a part of the state remedy for purposes of
the well recognized doctrine of exhaustion of state remedies?"
334 U.S. at
334 U. S.
686.
The problem as rephrased in the dissent stated with precision
the decisive inquiry. Relief from a federal court cannot come until
corrective State process to vindicate the claimed federal right is
unavailable. This has been so ever since
Ex parte Royall,
117 U. S. 241.
Therefore, if the "state remedies" which must be exhausted include
an application for review of a State court's decision by our
discretionary writ of certiorari, it would be premature
Page 339 U. S. 223
for a District Court to entertain a petition for habeas corpus
before such application. That question -- whether a petition for
certiorari is to be deemed part of the "state remedies" -- had
never been canvassed by this Court. The Court had made some
uncritical assertions about it, and, in a moment, I shall deal with
them. But the problem had never been critically analyzed until the
issue became determinative of the decision in
Wade v.
Mayo.
4. The answer which the dissent gave to the problem determined
the dissent. It concluded "that certiorari should be considered a
part of the state procedure for purposes of habeas corpus." 334
U.S. at
334 U. S. 689.
The Court's analysis of the problem led to the contrary result.
While fully acknowledging the principle that State remedies must be
exhausted before relief can be sought in a federal court, it
rejected the notion that an application to this Court for review by
certiorari can be deemed part of the State remedies.
5. Now the Court likewise rejects the basis of the dissent in
Wade v. Mayo -- that a petition for certiorari is to be
deemed part of State remedies and as such must be exhausted. But it
retains the conclusion which was drawn from the rejected premise.
It does so in complete disregard of our repeated insistence
regarding the significance of denial of petitions for certiorari,
reflecting the narrow range of inquiry not going to the merits
which alone is open on such petitions. Likewise disregarded are
practical considerations relating to the administration of this
Court's business, particularly the inherent difficulties of
ascertaining in this Court in the first instance the available
remedies under State procedure, which is a threshold question in
determining whether State remedies have been exhausted.
6. Of course, a State prisoner can come here and seek review, by
way of certiorari, of a denial by the State court
Page 339 U. S. 224
of his alleged federal constitutional right. The Court may grant
his petition and decide the issue against him. If the petition is
granted and the State's view of his federal claim is sustained
here, he may still sue out a writ in the District Court. The
doctrine of
res judicata is inapplicable. In the
Sacco-Vanzetti case, application was first made to the
Circuit Justice, then to the Senior Circuit Judge, and thereafter
to the District Judge.
See 5 The Sacco-Vanzetti Case 5532,
5533, 5534. To be sure, prior denials carry considerable weight in
disposing of a later application, but merely by way of safeguard
against "abusive use" of the writ while fully respecting "its
recognized status as a privileged writ of freedom."
Salinger v.
Loisel, 265 U. S. 224,
265 U. S.
232.
Our problem is not whether a petitioner may come here after
exhausting his State remedies, but whether he must come here and
have his petition for certiorari denied as a condition to invoking
a federal court's jurisdiction on habeas corpus. An answer to this
question necessarily turns on the significance of a denial of
certiorari. Mr. Justice Reed's opinion makes a Delphic disposition
of this issue, which will inevitably create confusion among federal
judges. It surely does not make for clarity of doctrine, nor does
it promote the practical administration of justice, to suggest that
denial of certiorari may be given weight upon later application for
habeas corpus in lower federal courts, but to refuse to be
explicit. On the basis of this pronouncement, how are some 200
district judges to dispose of petitions for habeas corpus brought
by State prisoners after denial of certiorari here? The opinion in
effect invites them to take into consideration the prior denial
here, but then threatens them with possible reversal for so
doing.
The state of uncertainty in which the District Courts are left
must lead to conflicting interpretations of our undisclosed
meaning. Some judges will infer that denial
Page 339 U. S. 225
of certiorari bears on the exercise of habeas corpus
jurisdiction. Others will feel they should adhere to this Court's
old avowals concerning denial until they are told explicitly to the
contrary. Most confusing of all, many judges, as is the way of
judges, are unlikely to resolve the ambiguity decisively. Instead,
they will take an equivocal position in denying a writ of habeas
corpus, relying in part on the discretionary aspect of habeas
corpus and in part on the fact that this Court denied certiorari.
Such a disposition will either lead lawyers to be dubious about
pressing an appeal, or, if the District Court's decision be
appealed, such a blend of reasons in denying the writ is not likely
to be overturned by a Court of Appeals, and it would be most
natural for this Court not to grant certiorari to review such a
case. The significance of a denial of certiorari given by the lower
courts would not be presented in such an unentangled form as would
commend itself according to normal criteria for a grant of
certiorari. Adjudication by this Court of the specific issue will
thus be greatly delayed. The result may well be that denial of
certiorari would, in practice, attain a significance which the
Court is unwilling to give it by candid adjudication.
It is, of course, one of our functions to resolve conflicts
among the lower courts. But it is not our duty to stimulate such
conflicts. Especially with regard to habeas corpus should be avoid
such ambiguity. "The great writ of liberty" ought not to be treated
as though we were playing a game. When a question affecting the
habeas corpus jurisdiction of the District Courts is before us, it
is our duty to guide the District Courts, and not refuse to guide
them. We cannot avoid an answer on the ground that the question is
not before the Court. Opinions are required in our legal system in
order that the reasoning which justifies a conclusion may be made
manifest. The disclosure of the reasoning by which a
Page 339 U. S. 226
conclusion is reached cannot remotely be deemed dictum. A
decision implies the process of reasoning which requires it. It is
essential to be clear about what denial of certiorari means before
determining whether a petition for certiorari is prerequisite to
the exercise of habeas corpus jurisdiction by a District Court.
Surely it is necessary to consider what a procedural requirement
means before making it a requirement.
7. The significance of a denial of a petition for certiorari
ought no longer to require discussion. This Court has said again
and again and again that such a denial has no legal significance
whatever bearing on the merits of the claim. The denial means that
this Court has refused to take the case. It means nothing else. The
State court's judgment is left undisturbed without any legal
reinforcement whatever of the views which the State court
expressed. Counsel at the bar have frequently been stopped for
drawing comfort out of such a denial, and the Court's opinions have
indicated impatience with failure to recognize that the only thing
that such a denial imports is that there were not four members of
the Court who deemed it desirable, for their respective reasons, to
review a decision of the lower court. Even before the Judiciary Act
of 1925 so vastly extended this Court's certiorari jurisdiction,
the Court said: "The denial of a writ of certiorari imports no
expression of opinion upon the merits of the case, as the bar has
been told many times."
United States v. Carver,
260 U. S. 482,
260 U. S. 490.
This note of impatience has been sounded repeatedly.
The wholly negative meaning of a denial of certiorari is not so
merely because we have said it. We have said it because it must be
so unless the whole conception of certiorari in relation to the
business of this Court is to be radically transformed. Such a
revolutionary change cannot justifiably be taken in relation to one
large group
Page 339 U. S. 227
of cases without drastic revision of the Court's treatment of
such cases, with far-reaching consequences to the business of the
Court and its proper discharge.
Nothing is more basic to the functioning of this Court than an
understanding that denial of certiorari is occasioned by a variety
of reasons which precludes the implication that, were the case
here, the merits would go against the petitioner. Petitions may
have been denied because, even though serious constitutional
questions were raised, it seemed to at least six members of the
Court that the issue was either not ripe enough or too moribund for
adjudication; that the question had better await the perspective of
time, or that time would soon bury the question, or, for one reason
or another, it was desirable to wait and see; or that the
constitutional issue was entangled with nonconstitutional issues
that raised doubt whether the constitutional issue could be
effectively isolated; or for various other reasons not relating to
the merits. Divergent and contradictory reasons often operate as to
the same petition, and lead to a common vote of denial. The want of
explanations for denials of certiorari is in part due to the fact
that a collective reason frequently could not be given. To suggest
that a District Court can determine the significance to be attached
to this Court's denial of certiorari by an examination of the
record on certiorari here is to offer the District Courts darkness
without Ariadne's thread. Particularly is this true in cases sought
to be brought here from the State courts in which State and federal
grounds are frequently entangled and an unambiguous federal
question often does not emerge from the record.
To attach significance to a denial of a certiorari petition
regarding the merits of the issues raised by the petition would be
to transform a mechanism for keeping cases out of this Court into a
means of bringing them in. It would
Page 339 U. S. 228
contradict all that led to the adoption of certiorari
jurisdiction and would reject the whole course of the Court's
treatment of such petitions, both in practice and profession. For
if denial does import an expression of opinion upon the merits of
the case, then we must deal with the merits of the case. During the
last four fiscal years, the District Courts throughout the country
had annually from 500 to 600 habeas corpus cases brought by
petitioners under State custody. To overrule
Wade v. Mayo
and to make it the duty of this Court to pass on the merits of
anything like the number of these cases which would have to be
brought here on petitions for certiorari from the State courts
would throw an almost impossible burden upon the Court. [
Footnote 2/1]
8. We certainly ought not to condition the power of the local
District Court to entertain a petition for habeas corpus on a prior
denial of a petition for certiorari here if such denial carries no
other significance than does the denial of certiorari in any other
class of cases. Meaningless multiplication of steps in the legal
process can hardly be deemed a virtue in judicial administration.
Nor would it be more respectful of the dignity of a State court for
the District Court to disagree with the State court's view of
federal law if such disagreement came after this Court had denied
certiorari, rather than before.
It is suggested, however, that this Court should have the first
opportunity to consider whether a State court
Page 339 U. S. 229
was right in having denied a constitutional claim -- what has
been colloquially called a "first-crack" policy. The most weighty
considerations of practical administration counsel against it. The
burden of the Court's volume of business will be greatly increased
not merely because a greater number of certiorari petitions would
be filed, but by reason of the effective pressure toward granting
petitions more freely. For if the "first-crack" policy has any
validity, it would require that every doubt be resolved in favor of
granting certiorari, rather than leaving the case to the District
Courts.
Moreover, State court decisions involving denial of federal
claims made in collateral attack on a conviction are frequently
decisions based merely on allegations in the pleadings. This Court
can dispose of them only as a matter of abstract pleading. The
District Courts, on the other hand, can hold hearings when deemed
appropriate, consider allegations on their merits if they are at
all substantial and dispose of what often turn out to be
unmeritorious claims. Thus, the impact upon federal-State
relationships of reversals of State court decisions, which this
Court may not be able to avoid when it is limited to the pleadings,
may well be avoided by lower federal courts, looking beyond paper
allegations to the merits.
9. There is still another reason why it makes against, not for,
sound administration of justice to bar exercise by a District Court
of its habeas corpus jurisdiction merely because the discretionary
power of this Court to review a State court decision has not been
invoked. It is that cases involving federal claims by State
prisoners so frequently involve questions of State law which must
be answered before the federal issue can be reached. State
questions are of two kinds: (1) did the adverse State ruling
exhaust the prisoner's available State remedies?
Page 339 U. S. 230
(2) may the State court's judgment be deemed to rest on some
State ground?
Nothing stands out more prominently in the Court's experience
with these cases than the doubts and difficulties in ascertaining
the law controlling local practice and local remedies. Thus,
according to the procedure of one State a constitutional issue like
that in
Mooney v. Holohan, supra, must be raised by habeas
corpus, not
coram nobis, while in another State, only
coram nobis is available, not habeas corpus. Although a
State court may have felt that it wrote clearly, we may not be able
to read it clearly, or at least in unison; some members of the
Court read it one way, some another.
See, e.g., New York ex
rel. Whitman v. Wilson, 318 U. S. 688;
Morhous v. Supreme Court of New York, 293 N.Y. 131, 56
N.E.2d 79;
People v. Sadness, 300 N.Y. 69, 89 N.E.2d
188.
The difficulties in determining exhaustion of State remedies are
illustrated by a litigation another stage of which was reached by
denial of certiorari last Monday.
Hawk v. Nebraska, 339
U.S. 923. At an earlier date, the Supreme Court of Nebraska had
affirmed a denial of habeas corpus by the lower State court.
Hawk v. Olson, 145 Neb. 306, 16 N.W.2d 181. This Court
granted certiorari and reversed on the merits, acting on the
assumption that a federal right had been disregarded,
326 U.
S. 271, despite our earlier statement in
Ex parte
Hawk, 321 U. S. 114,
321 U. S. 116,
to the effect that State remedies could not be deemed exhausted in
Nebraska until
coram nobis had been attempted. On the
remand, the Nebraska Supreme Court advised us that we had
misconceived its opinion and misunderstood local procedure -- that
it had not denied a federal claim out of hand, but decided only
that habeas corpus was not the proper procedural road to take in
Nebraska. 146 Neb. 875, 22 N.W.2d 136. Hawk then applied for a writ
of habeas corpus in the federal District Court for Nebraska,
Page 339 U. S. 231
but was told that he must first try
coram nobis in the
State courts.
66 F. Supp.
195,
aff'd sub nom. Hawk v. Jones, 160 F.2d 807. The
district judge showed his knowledge of his local law, for when the
federal claim was asserted by
coram nobis, it was heard on
the merits, decided by a Nebraska trial court against the
petitioner, and affirmed by the Nebraska Supreme Court,
Hawk v.
State, 151 Neb. 717, 39 N.W.2d 561.
The
Hawk litigation illustrates the importance of the
doctrine of exhaustion of State remedies. That doctrine is vital to
the harmonious functioning of two judicial systems where one is
subordinate to the other. But the litigation also shows that waste
and friction are bound to be promoted if review of State court
decisions in this field will have to come here initially. We are
dealing with elusive and treacherous local legal materials which,
in their nature, are not within the special competence of this
Court. Such materials look one way if one examines only the dead
letter of print. But to one brought up within the local system,
they carry meaning which never can be got from books.
See Diaz
v. Gonzalez, 261 U. S. 102,
261 U. S. 106. The
surefooted manner in which the federal district judge dealt with
Nebraska procedure in
Hawk v. Olson, supra, indicates that
he would not have made the error into which this Court fell. The
Nebraska situation is representative of the difficulties and doubts
that this Court has encountered again and again in regard to the
local remedies available. The matter comes peculiarly within the
rule of wisdom, often applied by this Court, whereby questions of
local law and local practices will not be decided here, but will be
submitted to the knowledgeable views of federal judges in the
various localities.
See Gardner v. New Jersey,
329 U. S. 565,
329 U. S. 583,
and cases cited. This rule respects all the considerations that
preclude intervention by a federal court until the State courts
have fully acted.
Page 339 U. S. 232
Burke v. Georgia, 338 U.S. 941, is another admirable
illustration of why we should not require cases raising a dubious
constitutional question as to the validity of State convictions to
be brought here before habeas corpus is sought in the District
Courts. That we denied certiorari "without prejudice" to future
proceedings in the District Court carried no legal significance.
[
Footnote 2/2] The case merely
demonstrates how frequently in this situation preliminary questions
of State procedure and State court jurisdiction are involved.
Instead of allowing these local issues to be canvassed initially in
the District Courts, it is now proposed to deal with cases like
Burke v. Georgia by requiring that they be brought here
enveloped in the fog of State procedural law, and then leaving it
to the District Courts to lift the fog after we have concluded that
it is took thick for us to pierce. Such procedure, I submit, would
neither further the administration of justice nor be conducive to
the proper use of this Court's time for the effective conduct of
its inescapable business nor advance the self-esteem of State
courts.
10. Nor need we be concerned lest the federal District Courts
will lightly inject themselves into the State criminal process and
open wide the State prison doors. Experience completely dispels
such excogitated fears. The District Courts are presided over by
judges who are citizens of the State, with loyalties to it no less
strong than those of the judges of the State courts. Judges often
come to the federal courts from the State courts. The proof of the
pudding is in the eating. The showing is overwhelming that the
District Courts grant writs of habeas corpus most sparingly, and
only with due regard
Page 339 U. S. 233
for this Court's decisions under the Due Process Clause.
[
Footnote 2/3]
Even though a petition for habeas corpus in a federal District
Court may involve constitutional questions which were found against
the petitioner by the highest court of his State, the District
Court is not sitting as a court of review of the State court. A
petition for habeas corpus in a federal court, after the State
process has been exhausted, "comes in from the outside," as Mr.
Justice Holmes phrased it in his dissenting opinion in
Frank v.
Mangum, 237 U. S. 309,
237 U. S.
345-346 -- a view which established itself as law in
Moore v. Dempsey, 261 U. S. 86. If it
be suggested that, as a matter of appearance, legal analysis apart,
a federal District Court might be granting relief which the highest
court of the State had denied, the same unanalyzed appearance would
attach to a District Court's granting relief after this Court had
denied it.
11. Due regard for State and federal relations as expressed in
the doctrine of exhaustion of State remedies and adherence to the
function played by certiorari in the business of this Court combine
to reject as erroneous the notion that federal District Courts are
to be barred from exercising their habeas corpus jurisdiction if
certiorari was
Page 339 U. S. 234
not first sought here. The error derives from the assumption
that a petition for certiorari to this Court was included in the
"State remedies available" which must be exhausted before a federal
court can entertain a writ of habeas corpus. This assumption
appears for the first time in a per curiam opinion in
Ex parte
Hawk, 321 U. S. 114,
321 U. S. 117.
It was repeated, though not in issue, in the per curiam in
White v. Ragen, 324 U. S. 760,
324 U. S. 764.
A consideration of what actually was said in
Ex parte Hawk
on this matter makes it perfectly clear how the misconception about
certiorari in relation to the District Court's jurisdiction in
habeas corpus crept into
Ex parte Hawk. The following is
everything contained in
Ex parte Hawk on the subject:
"Ordinarily, an application for habeas corpus by one detained
under a state court judgment of conviction for crime will be
entertained by a federal court only after all state remedies
available, including all appellate remedies in the state courts and
in this Court by appeal or writ of certiorari, have been exhausted.
Tinsley v. Anderson, 171 U. S. 101,
171 U. S.
104-105;
Urquhart v. Brown, 205 U. S.
179;
United States ex rel. Kennedy v. Tyler,
269 U. S.
13;
Mooney v. Holohan, supra, 294 U. S.
115;
Ex parte Abernathy, 320 U. S.
219."
321 U.S. at
321 U. S.
116-117.
The essence of this statement is the doctrine of exhaustion of
State remedies. Two of the citations --
Mooney v. Holohan
and
Ex parte Abernathy-have only that relevance. The three
other citations --
Tinsley v. Anderson; Urquhart v. Brown;
United States ex rel. Kennedy v. Tyler -- are directed to the
particularization in the main statement as to the exhaustion of
"all state remedies available, including all appellate remedies . .
. in this Court. . . ." These three cases illustrate a series of
decisions in this Court holding that a lower federal court
Page 339 U. S. 235
ordinarily ought not to exercise its jurisdiction in habeas
corpus in favor of one in State custody even after a final
determination by the highest court of a State unless he has availed
himself of his remedy "to review it by writ of error from this
court."
Tinsley v. Anderson, 171 U.
S. 101,
171 U. S.
105.
Of course. A writ of error was a writ of right. It makes all the
difference in the world whether a prisoner knocks at the door of
this Court to invoke its grace or has unquestioned access for the
final determination of the federal question as to which the highest
court of the State was merely an intermediate tribunal. The latter
was the situation in the three cases cited in
Ex parte
Hawk. In the writ of error cases, this Court held habeas
corpus in the lower federal courts ought not to take the place of a
mandatory appeal.
Markuson v. Boucher, 175 U.
S. 184.
But this jurisdictional situation was drastically changed by the
Act of September 6, 1916, 39 Stat. 726, and the Act of February 13,
1925, 43 Stat. 936. The whole purport of this transforming
jurisdictional legislation was to bar the door of this Court to
litigation like this flood of habeas corpus cases. After this shift
from review as of right to review by grace, it could no longer be
said that a litigant forwent his right to have this Court review
and reverse a State court. The right was gone. Only an opportunity
-- and a slim one -- remained. It completely misconceives the
doctrine which required a case to be brought to this Court by writ
of error, because it was the duty of this Court to adjudicate the
claim on the merits, to apply it to the totally different factors
involved in certiorari. All the considerations of policy required
that the process of constitutional adjudication through writ of
error be exhausted before a lower federal court could step in.
Until
Ex parte Hawk, there was no suggestion of
assimilating certiorari to the writ of error
Page 339 U. S. 236
doctrine. In the present context of the Court's business in
relation to these cases -- their volume and the required knowledge
of local law with which the local federal judges are much more
familiar than we can possibly be -- all considerations of policy
urge against requiring certiorari to be filed and denied before the
District Court may be allowed to exercise jurisdiction.
The reasons underlying
stare decisis are not applicable
to such a procedural suggestion as
Ex parte Hawk made
regarding the requirement of petitioning this Court for certiorari
before evoking the District Court's jurisdiction on habeas corpus.
That suggestion never was translated into practice so far as the
records of this Court disclose. What was specifically decided in
Ex parte Hawk did become the practice of this Court --
that is, petitions for leave to file a writ of habeas corpus in
this Court under § 262 of the Judicial Code, now 28 U.S.C. § 1651,
were thereafter denied. But no instance has been revealed in which
this Court acted on the suggestion that exhaustion of State
remedies includes denial of certiorari here. Apart from the fact
that
Wade v. Mayo displaced the inclusion of certiorari as
part of the State remedies, it was recognized at the last term of
Court that the scope of
Ex parte Hawk was that it
expressed the "doctrine of exhaustion of state remedies."
Young
v. Ragen, 337 U. S. 235,
337 U. S.
238.
12. A final point remains, and that is the suggestion that the
provision of the 1948 revision of the Judicial Code requires
adherence to what was said in
Ex parte Hawk about resort
to certiorari. The Code provisions say no such thing, nor do the
Reviser's notes. Section 2254 of Title 28 merely formulates the
judicial doctrine first announced by this Court in
Ex parte
Royall, 117 U. S. 241 --
the doctrine of exhaustion of State remedies:
"An application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted unless it appears
Page 339 U. S. 237
that the applicant has exhausted the remedies available in the
courts of the State. . . ."
"An applicant shall not be deemed to have exhausted the remedies
available in the courts of the State, within the meaning of this
section, if he has the right under the law of the State to raise,
by any available procedure, the question presented."
Wade v. Mayo made it clear that certiorari is not a
remedy "available in the courts of the State," and no claim is now
made to the contrary. With that abandonment goes the uncritical
inclusion by
Ex parte Hawk of certiorari among the
remedies of the State.
Wade v. Mayo, to be sure, could not
have been before the Congress, but the Reviser characterized § 2254
as "declaratory of existing law as affirmed by the Supreme Court,"
adding "
See Ex parte Hawk." That decision is sound enough
in its essential requirement for "exhaustion of state remedies."
The slip in analysis it contained as to what are "State remedies"
is surely not the equivalent of an enactment by Congress. A far
more persuasive case for finding reenactment by Congress of a
decision of this Court was rejected in
Girouard v. United
States, 328 U. S. 61.
13. In short, the decision reached today has alternative
consequences, neither of which, I respectfully submit, can be
justified. In barring a District Court from entertaining a petition
for habeas corpus on behalf of a State prisoner prior to denial of
certiorari here, the decision must mean either (1) that denial of a
petition for certiorari in this class of cases, unlike denials in
all other classes of cases, would serve the purpose of an
adjudication on the merits, thereby carrying with it all the weight
that an adjudication on the merits by this Court should carry with
a District Court even in habeas corpus cases, or (2) that such a
denial, as is true of denials in any other type of case, has no
legal significance.
Page 339 U. S. 238
The first alternative -- that, in habeas corpus cases, denial of
certiorari has the effect of a disposition on the merits -- would
require a complete change in our consideration of such petitions by
this Court. They would have to be treated as we now treat cases in
which a petition for certiorari is granted so as to be heard on the
merits. This would cast a new burden upon the Court, full of the
direst consequences to the proper disposition of the rest of the
business of the Court. In addition, if denial of certiorari as
though on the merits, but without full dress consideration, would,
for all effective purposes, preclude resort to the District Courts
on a claim that State custody is in violation of the Constitution,
it would judicially nullify the habeas corpus jurisdiction which
was first given to the lower federal courts by the Act of February
5, 1867, and has ever since been retained. On the second
alternative,
i.e., that denial of certiorari in habeas
corpus cases is like any other denial of certiorari, the Court
would announce that a meaningless step in this Court is an
indispensable preliminary to going to the local District Court.
I agree with the opinion of Judge Phillips below that the case
should be reversed and remanded to the District Court.
MR. JUSTICE JACKSON, being of the opinion that this is the
better of the two unsatisfactory courses open to us, joins this
opinion.
* [MR. JUSTICE Jackson also joined in this opinion.
See
post, p.
339 U. S.
238.]
[
Footnote 2/1]
Judge Learned Hand has carried the requirement of eliciting a
denial of a petition for certiorari in habeas corpus cases to its
logical conclusion by giving such denial conclusive effect on the
merits.
Schechtman v. Foster, 172 F.2d 339, 342-343. That
is the logical conclusion of such a requirement -- but it is the
logic of unreality. For it flies in the face of the actualities of
a denial. The considerations entering into such denials have
necessitated the hitherto settled principle that denial carries no
suggestion of adjudication on the merits.
[
Footnote 2/2]
The considerations that lead to an explicit statement that
denial of certiorari is "without prejudice" to other avenues of
relief because it does not bear on the merits, of course, carry no
negative implication that, in the absence of such a phrase, the
denial is with prejudice.
[
Footnote 2/3]
The Administrative Office of the United States Courts has
compiled the following statistics:
Fiscal Years 1945-46 1946-47 1947-48 1948-49
Habeas corpus cases involv-
ing State prisoners dis-
posed of by District
Courts 503 481 487 610
Cases in which petitioners
were successful 14 13 11 10
Percentage of cases in which
petitioners were successful 2.8% 2.7% 2.3% 1.6%
See Speck, Statistics on Federal Habeas Corpus, 10 Ohio
State L.J. 337, 357 (1949).