In 1942, respondent and two codefendants were convicted in a New
York State Court of murder committed during a robbery, and each was
sentenced to life imprisonment. The sole evidence against each was
his confession. Respondent did not appeal; but his codefendants
did. Their appeals were unsuccessful, but subsequent proceedings
resulted in their release on the ground that their confessions were
coerced and their convictions violated the Fourteenth Amendment.
Thereafter, respondent applied to the State Court for a
coram
nobis review of his conviction, but this was denied ultimately
because of his failure to appeal. He then applied to a Federal
District Court for a writ of habeas corpus, which was denied on the
ground that his failure to appeal was a failure to exhaust
available state remedies, within the meaning of 28 U.S.C. § 2254,
although it was conceded that respondent's confession had been
coerced. The Court of Appeals reversed.
Held: The judgment of the Court of Appeals is affirmed
on other grounds. Pp.
372 U. S.
394-441.
1. Under the conditions of modern society, respondent's
imprisonment under a conviction procured by a coerced confession,
which the State concedes was obtained in violation of the
Fourteenth Amendment, is intolerable, and habeas corpus is the
appropriate remedy. Pp.
372 U. S.
399-415.
(a) The basic principle of the Great Writ of habeas corpus is
that, in a civilized society, government must always be accountable
to the judiciary for a man's imprisonment: if the imprisonment
cannot be shown to conform with the fundamental requirements of
law, the individual is entitled to his immediate release. Pp.
372 U. S.
399-402.
(b) A review of the history of habeas corpus shows that, when
the Suspension Clause, Art. I, § 9, Cl. 2, was written into the
Federal Constitution and the first Judiciary Act was passed
conferring habeas corpus jurisdiction upon the federal judiciary,
there was respectable common law authority for the proposition that
habeas corpus was available to remedy any kind of governmental
Page 372 U. S. 392
restraint contrary to the fundamental law, and it would appear
that the Constitution invites, if it does not compel, a generous
construction of the power of the federal courts to dispense the
writ conformably with common law practice. Pp.
372 U. S.
402-406.
(c) Changed conceptions of the kind of criminal proceedings so
fundamentally defective as to make imprisonment under them
constitutionally intolerable should not be allowed to obscure the
basic continuity in the conception of the writ as a remedy for such
imprisonments. Pp.
372 U. S.
406-415.
2. The exigencies of federalism do not compel a different
result. Pp.
372 U. S.
415-426.
(a) The rule that a state prisoner must exhaust his remedies in
the state courts before applying to a federal court for a writ of
habeas corpus, which evolved as a matter of accommodation between
state and federal courts and is now codified in 28 U.S.C. § 2254,
is a doctrine of comity between courts. It is not one defining
power, but one which relates to the appropriate exercise of power.
Pp.
372 U. S.
415-420.
(b) Save in one decision, which has since been repudiated, this
Court has consistently held that, after the state courts had
decided the federal question on the merits against the applicant,
he could apply to the federal courts for habeas corpus and there
relitigate the question. Pp.
372 U. S.
420-422.
(c) Even if the state court adjudication turns wholly on primary
historical facts, a Federal District Court has a broad power on
habeas corpus to hold an evidentiary hearing and determine the
facts. P.
372 U. S.
422.
(d) Conventional notions of finality in criminal litigation
cannot be permitted to defeat the manifest federal policy that
federal constitutional rights of personal liberty shall not be
denied without the fullest opportunity for plenary federal judicial
review. Pp.
372 U. S.
422-424.
(e) By relying on a rule of discretion, avowedly flexible and
always yielding to "exceptional circumstances," this Court has
refused to concede jurisdictional significance to abortive state
court proceedings. Pp.
372 U. S.
424-426.
3. Federal courts have power under the federal habeas corpus
statute, 28 U.S.C. §§ 2241
et seq., to grant relief
despite the applicant's failure to have pursued a state remedy not
available to him at the time he applies. The doctrine under which
state procedural defaults are held to constitute an adequate and
independent
Page 372 U. S. 393
state law ground barring direct Supreme Court review is not to
be extended to limit the power granted the federal courts under the
federal habeas corpus statute. Pp.
372 U. S.
398-399,
372 U. S.
426-434.
(a) Federal court jurisdiction in a habeas corpus proceeding is
conferred by the allegation of an unconstitutional restraint, and
it is not defeated by anything that may occur in the state
proceedings. Pp.
372 U. S.
426-427.
(b) Due process denied in the state proceedings leading to a
conviction is not restored just because a state court declines to
adjudicate on the merits the claim of such denial. P.
372 U. S.
427.
(c) By committing a procedural default, a defendant may be
debarred from challenging his conviction in the state courts, even
on federal constitutional grounds; but forfeiture of remedies does
not legitimize the unconstitutional conduct by which his conviction
was procured. Pp.
372 U. S.
427-428.
(d) The federal courts are not without power to grant habeas
corpus relief to an applicant whose federal claims would not be
heard on direct review in this Court because of a procedural
default furnishing an adequate and independent ground of state
decision. Pp.
372 U. S.
428-434.
4. Respondent's failure to appeal was not a failure to exhaust
"the remedies available in the courts of the State," as required by
28 U.S.C. § 2254. That requirement refers only to a failure to
exhaust state remedies still open to the applicant at the time he
files his application for habeas corpus in the federal court. Pp.
372 U. S.
434-435.
5.
Darr v. Burford, 339 U. S. 200, is
overruled to the extent that it required a state prisoner to seek
certiorari in this Court before seeking federal habeas corpus
relief. Pp.
372 U. S.
435-438.
6. Respondent's failure to appeal cannot, in the circumstances
of this case, be deemed an intelligent and understanding waiver of
his right to appeal such as to justify the withholding of federal
habeas corpus relief. Pp.
372 U. S. 399,
372 U. S.
438-440.
(a) A federal judge may, in his discretion, deny relief to an
applicant for habeas corpus who has deliberately bypassed the
orderly procedure of state courts and, in so doing, has forfeited
his state court remedies. P.
372 U. S.
438.
(b) This grant of discretion is not to be interpreted as
permission to introduce legal fictions into federal habeas corpus
proceedings. It is applicable only when the petitioner himself
has
Page 372 U. S. 394
understandingly and knowingly foregone the privilege of seeking
to vindicate his federal claims in the state courts. P.
372 U. S.
439.
(c) In the circumstances of this case, it cannot be said that
respondent's failure to appeal justified the withholding of federal
habeas corpus relief. Pp.
372 U. S.
439-440.
300 F.2d 345, affirmed on other grounds.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This case presents important questions touching the federal
habeas corpus jurisdiction, 28 U.S.C. §§ 2241
et seq., in
its relation to state criminal justice. The narrow question is
whether the respondent Noia may be granted federal habeas corpus
relief from imprisonment under a New York conviction now admitted
by the State to rest upon a confession obtained from him in
violation of the Fourteenth Amendment, after he was denied state
post-conviction relief because the coerced confession claim had
been decided against him at the trial and Noia had allowed the time
for a direct appeal to lapse without seeking review by a state
appellate court.
Noia was convicted in 1942 with Santo Caminito and Frank Bonino
in the County Court of Kings County, New York, of a felony murder
in the shooting and killing of one Hammeroff during the commission
of a robbery.
Page 372 U. S. 395
The sole evidence against each defendant was his signed
confession. Caminito and Bonino, but not Noia, appealed their
convictions to the Appellate Division of he New York Supreme Court.
These appeals were unsuccessful, but subsequent legal proceedings
resulted in the releases of Caminito and Bonino on findings that
their confessions had been coerced and their convictions therefore
procured in violation of the Fourteenth Amendment. [
Footnote 1] Although it has been stipulated
that the coercive nature
Page 372 U. S. 396
of Noia's confession was also established, [
Footnote 2] the United States District Court for
the Southern District of New York held in Noia's federal habeas
corpus proceeding that, because of his failure to appeal, he must
be denied relief under the provision of 28 U.S.C. § 2254
whereby
"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. . . ."
13 F. Supp. 222 (1960). [
Footnote 3] The Court of
Page 372 U. S. 397
Appeals for the Second Circuit reversed, one judge dissenting,
and ordered that Noia's conviction be set aside and that he be
discharged from custody unless given a new trial forthwith. 300
F.2d 345 (1962). The Court of Appeals questioned whether § 2254
barred relief on federal habeas corpus where the applicant had
failed to exhaust state remedies no longer available to him at the
time the habeas proceeding was commenced (here, a direct appeal
from the conviction), but held that, in any event, exceptional
circumstances were present which excused compliance with the
section. The court also rejected other arguments advanced in
support of the proposition that the federal remedy was unavailable
to Noia. The first was that the denial of state post-conviction
coram nobis relief on the ground of Noia's failure to
appeal barred habeas relief because such failure constituted
Page 372 U. S. 398
an adequate and independent state ground of decision such that
this Court, on direct review of the state
coram nobis
proceedings, would have declined to adjudicate the federal
questions presented. In rejecting this argument, the court -- while
expressing the view that,
"[j]ust as it would be an encroachment on the prerogatives of
the state for the Supreme Court upon direct review to disregard the
state ground, equally -- if not more so -- would it be a trespass
against the state for a lower federal court, upon a petition for
habeas corpus, to disregard the state ground in granting relief to
the prisoner,"
300 F.2d at 359 -- held that the exceptional circumstances
excusing compliance with § 2254 also established that Noia's
failure to appeal was not a state procedural ground adequate to bar
the federal habeas remedy:
"The coincidence of these factors: the undisputed violation of a
significant constitutional right, the knowledge of this violation
brought home to the federal court at the incipiency of the habeas
corpus proceeding so forcibly that the state made no effort to
contradict it, and the freedom the relator's codefendants now have
by virtue of their vindications of the identical constitutional
right, leads us to conclude that the state procedural ground, that
of a simple failure to appeal, reasonable enough to prevent federal
judicial intervention in most cases, is, in this particular case,
unreasonable and inadequate."
300 F.2d at 362. The second argument was that Noia's failure to
appeal was to be deemed a waiver of his claim that he had been
unconstitutionally convicted. The Court of Appeals rejected this
argument on the ground that no waiver could be inferred in the
circumstances.
Id. at 351-352.
We granted certiorari. 369 U.S. 869. We affirm the judgment of
the Court of Appeals, but reach that court's result by a different
course of reasoning. We hold: (1) Federal courts have power under
the federal habeas statute to grant relief despite the applicant's
failure to
Page 372 U. S. 399
have pursued a state remedy not available to him at the time he
applies; the doctrine under which state procedural defaults are
held to constitute an adequate and independent state law ground
barring direct Supreme Court review is not to be extended to limit
the power granted the federal courts under the federal habeas
statute. (2) Noia's failure to appeal was not a failure to exhaust
"the remedies available in the courts of the State," as required by
§ 2254; that requirement refers only to a failure to exhaust state
remedies still open to the applicant at the time he files his
application for habeas corpus in the federal court. (3) Noia's
failure to appeal cannot, under the circumstances, be deemed an
intelligent and understanding waiver of his right to appeal such as
to justify the withholding of federal habeas corpus relief.
I
The question has been much mooted under what circumstances, if
any, the failure of a state prisoner to comply with a state
procedural requirement, as a result of which the state courts
decline to pass on the merits of his federal defense, bars
subsequent resort to the federal courts for relief on habeas
corpus. [
Footnote 4] Plainly it
is a question that has important implications for federal-state
relations in the area of the administration of criminal justice. It
cannot be answered without a preliminary inquiry into the
historical development of the writ of habeas corpus.
We do well to bear in mind the extraordinary prestige of the
Great Writ,
habeas corpus ad subjiciendum, [
Footnote 5] in
Page 372 U. S. 400
Anglo-American jurisprudence: "the most celebrated writ in the
English law." 3 Blackstone Commentaries 129. It is
"a writ antecedent to statute, and throwing its root deep into
the genius of our common law. . . . It is perhaps the most
important writ known to the constitutional law of England,
affording as it does a swift and imperative remedy in all cases of
illegal restraint or confinement. It is of immemorial antiquity, an
instance of its use occurring in the thirty-third year of Edward
I."
Secretary of State for Home Affairs v. O'Brien, [1923]
A.C. 603, 609 (H.L.). Received into our own law in the colonial
period, [
Footnote 6] given
explicit recognition in the Federal Constitution, Art. I, § 9, cl.
2, [
Footnote 7] incorporated in
the first grant of federal court jurisdiction, Act of September 24,
1789, c. 20, § 14, 1 Stat. 81-82, habeas corpus was early confirmed
by Chief Justice John Marshall to be a "great constitutional
privilege."
Ex parte Bollman and
Swartwout, 4 Cranch 75,
8 U. S. 95. Only
two Terms ago, this Court had occasion to reaffirm the high place
of the writ in our jurisprudence:
"We repeat what has been so truly said of the federal writ:
'there is no higher duty than to maintain it unimpaired,'
Bowen
v. Johnston, 306 U. S. 19,
306 U. S.
26 (1939), and unsuspended, save only in the cases
specified in our Constitution."
Smith v. Bennett, 365 U. S. 708,
365 U. S.
713.
These are not extravagant expressions. Behind them may be
discerned the unceasing contest between personal
Page 372 U. S. 401
liberty and government oppression. It is no accident that habeas
corpus has, time and again, played a central role in national
crises wherein the claims of order and of liberty clash most
acutely not only in England in the seventeenth century, [
Footnote 8] but also in America from
our very beginnings, and today. [
Footnote 9] Although in form the Great Writ is simply a
mode of procedure, its history is inextricably intertwined with the
growth of fundamental rights of personal liberty. For its function
has been to provide a prompt and efficacious remedy for
whatever
Page 372 U. S. 402
society deems to be intolerable restraints. Its root principle
is that, in a civilized society, government must always be
accountable to the judiciary for a man's imprisonment: if the
imprisonment cannot be shown to conform with the fundamental
requirements of law, the individual is entitled to his immediate
release. Thus, there is nothing novel in the fact that today habeas
corpus in the federal courts provides a mode for the redress of
denials of due process of law. Vindication of due process is
precisely its historic office. In 1593, for example, a bill was
introduced in the House of Commons, which, after deploring the
frequency of violations of "the great Charter and auncient good
Lawes and statutes of this realme," provided:
"Fore remedy whereof be it enacted: That the provisions and
prohibicions of the said great Charter and other Lawes in that
behalfe made be dulie and inviolatelie observed. And that no person
or persons be hereafter committed to prison but yt be by sufficient
warrant and Authorities and by due course and proceedings in Lawe.
. . ."
"And that the Justice of anie the Queenes Majesties Courts of
Recorde at the common Lawe maie awarde a writt of habeas Corpus for
the deliverye of anye person so imprisoned. . . . [
Footnote 10]"
Although it was not enacted, this bill accurately prefigured the
union of the right to due process drawn from Magna Charta and the
remedy of habeas corpus accomplished in the next century.
Of course, standards of due process have evolved over the
centuries. But the nature and purpose of habeas corpus have
remained remarkably constant. History refutes the notion that,
until recently, the writ was available
Page 372 U. S. 403
only in a very narrow class of lawless imprisonments. For
example, it is not true that, at common law habeas corpus was
exclusively designed as a remedy for executive detentions; it was
early used by the great common law courts to effect the release of
persons detained by order of inferior courts. [
Footnote 11] The principle that judicial as well
as executive restraints may be intolerable received dramatic
expression in
Bushell's Case, Vaughan, 135, 124 Eng.Rep.
1006, 6 Howell's State Trials 999 (1670). Bushell was one of the
jurors in the trial, held before the Court of Oyer and Terminer at
the Old Bailey, of William Penn and William Mead on charges of
tumultuous assembly and other crimes. When the jury brought in a
verdict of not guilty, the court ordered the jurors committed for
contempt. Bushell sought habeas corpus, and the Court of Common
Pleas, in a memorable opinion by Chief Justice Vaughan, ordered him
discharged from custody. The case is by no means isolated,
[
Footnote 12] and when
habeas corpus practice was codified in the Habeas Corpus Act of
1679, 31 Car. II, c. 2, no distinction was made between executive
and judicial detentions. [
Footnote 13]
Page 372 U. S. 404
Nor is it true that, at common law habeas corpus was available
only to inquire into the jurisdiction, in a narrow sense, of the
committing court.
Bushell's Case is again in point. Chief
Justice Vaughan did not base his decision on the theory that the
Court of Oyer and Terminer had no jurisdiction to commit persons
for contempt, but on the plain denial of due process, violative of
Magna Charta, of a court's imprisoning the jury because it
disagreed with the verdict:
". . . [W]hen a man is brought by Habeas Corpus to the Court,
and upon retorn of it, it appears to the Court, That he was against
Law imprison'd and detain'd, . . . he shall never be by the Act of
the Court remanded to his unlawful imprisonment, for then the Court
should do an act of Injustice in imprisoning him, de novo, against
Law, whereas the great Charter is Quod nullus libet homo
imprisonetur nisi per legem terrae; this is the present case, and
this was the case upon all the Presidents [precedents] produc'd and
many more that might be produc'd, where, upon Habeas Corpus, many
have been discharg'd"
"This appears plainly by many old Books, if the Reason of them
be rightly taken, for insufficient causes are as no causes
retorn'd, and to send a man
Page 372 U. S. 405
back to Prison for no cause retorn'd, seems unworthy of a
Court."
Vaughan, at 156, 124 Eng.Rep. at 1016, 9 Howell's State Trials,
at 1023. To the same effect, we read in Bacon's Abridgment:
"[I]f the commitment be against law, as being made by one who
had no jurisdiction of the cause,
or for a matter for which by
law no man ought to be punished, the court are to discharge
him . . . , and the commitment is liable to the same objection
where the cause is so loosely set forth that the court cannot
adjudge
whether it were a reasonable ground of imprisonment or
not. [
Footnote 14]"
Thus, at the time that the Suspension Clause was written into
our Federal Constitution and the first Judiciary Act was passed
conferring habeas corpus jurisdiction upon the federal judiciary,
there was respectable common law authority for the proposition that
habeas was available to remedy any kind of governmental restraint
contrary to fundamental law. In this connection, it is significant
that neither the Constitution nor the Judiciary Act anywhere
defines the writ, although the Act does intimate, 1 Stat. 82, that
its issuance is to be "agreeable
Page 372 U. S. 406
to the principles and usages of law" -- the common law,
presumably. We need not pause to consider whether it was the
Framers' understanding that congressional refusal to permit the
federal courts to accord the writ its full common law scope as we
have described it might constitute an unconstitutional suspension
of the privilege of the writ. There have been some intimations of
support for such a proposition in decisions of this Court. Thus,
Mr. Justice (later Chief Justice) Stone wrote for the Court
that
"[t]he use of the writ . . . as an
incident of the federal
judicial power is implicitly recognized by Article I, § 9,
Clause 2 of the Constitution."
McNally v. Hill, 293 U. S. 131,
293 U. S. 135.
(Italics supplied.) To the same effect are the words of Chief
Justice Chase in
Ex parte
Yerger, 8 Wall. 85,
75 U. S. 95: "The
terms of this provision [the Suspension Clause] necessarily imply
judicial action."
And see United States ex rel. Turner v.
Williams, 194 U. S. 279,
194 U. S. 295
(concurring opinion). [
Footnote
15] But, at all events, it would appear that the Constitution
invites, if it does not compel,
cf. Byrd v. Blue Ridge Rural
Elec. Cooperative, 356 U. S. 525,
356 U. S. 537,
a generous construction of the power of the federal courts to
dispense the writ conformably with common law practice.
The early decision of this Court in
Ex parte
Watkins, 3 Pet.193, which held that the judgment of
a federal court
Page 372 U. S. 407
of competent jurisdiction could not be impeached on habeas,
seems to have viewed the power more narrowly;
See also Ex
parte Kearney, 7 Wheat. 38. But
Watkins
may have been compelled by factors, affecting peculiarly the
jurisdiction of this Court, which are not generally applicable to
federal habeas corpus powers. It was plain from the decision in
Marbury v.
Madison, 1 Cranch 137,
5 U. S. 174-175,
which had narrowly construed the grant of original jurisdiction to
the Supreme Court in Article III, that the Court would have the
power to issue writs of habeas corpus only if such issuance could
be deemed an exercise of appellate jurisdiction. Confronted with
the question in
Ex parte Bollman and
Swartwout, 4 Cranch 75 -- like
Watkins, a
case of direct application to the Court for the writ -- the Court
held that the jurisdiction
"which the court is now asked to exercise is clearly appellate.
It is the revision of a decision of an inferior court, by which a
citizen has been committed to gaol."
4 Cranch at
8 U. S. 100. This
answer sufficed to enable the discharge of the petitioners, who had
been committed (but not tried or convicted) for treason; but, at
the same time, it virtually dictated the result in
Watkins. The Court had no general jurisdiction of appeals
from federal criminal judgments,
see pp.
372 U. S.
412-413,
infra; if, therefore, the writ of
habeas corpus was appellate in nature, its issuance to vacate such
a judgment would have the effect of accomplishing indirectly what
the Court had no power to do directly. This reasoning is prominent
in Chief Justice Marshall's opinion for the Court in
Watkins. See 3 Pet. at
28 U. S.
203.
Strictly, then,
Watkins is authority only as to this
Court's power to issue the writ; the habeas jurisdiction of the
other federal courts and judges, including the individual Justices
of the Supreme Court, has generally been deemed original.
In re Kaine,
14 How. 103;
Ex parte
Yerger, 8 Wall. 85,
75 U. S. 101.
But cf. Ex parte Clarke, 100 U. S. 399. But
even as to this Court's power, the life of
Page 372 U. S. 408
the principles advanced in
Watkins was relatively
brief. [
Footnote 16] In
Ex parte
Lange, 18 Wall. 163, again a case of direct
application to this Court for the writ the Court ordered the
release of one duly convicted in a Federal Circuit Court. The trial
judge, after initially imposing upon the defendant a sentence in
excess of the legal maximum, had attempted to correct the error by
resentencing him. The Court held this double sentencing procedure
unconstitutional on the ground of double jeopardy, and, while
conceding that the Circuit Court had a general competence in
criminal cases, reasoned that it had no jurisdiction to render a
patently lawless judgment.
This marked a return to the common law principle that restraints
contrary to fundamental law, by whatever authority imposed, could
be redressed by writ of habeas corpus.
See also Ex parte
Wells, 18 How. 307;
Ex parte Parks,
93 U. S. 18,
93 U. S. 21. The
principle was clearly stated a few years after the
Lange
decision by Mr. Justice Bradley, writing for the Court in
Ex
parte Siebold, 100 U. S. 371,
100 U. S.
376-377:
". . . The validity of the judgments is assailed on the ground
that the acts of Congress under which the indictments were found
are unconstitutional. If this position is well taken, it affects
the foundation of the whole proceedings. An unconstitutional law is
void, and is as no law. An offence created by it is not a crime. A
conviction under it is not merely erroneous, but is illegal and
void, and cannot be a legal cause of imprisonment. It is true, if
no writ of error lies, the judgment may be final, in the sense
Page 372 U. S. 409
that there may be no means of reversing it. But personal liberty
is of so great moment in the eye of the law that the judgment of an
inferior court affecting it is not deemed so conclusive but that .
. . the question of the court's authority to try and imprison the
party may be reviewed on habeas corpus. . . ."
The course of decisions of this Court from
Lange and
Siebold to the present makes plain that restraints
contrary to our fundamental law, the Constitution, may be
challenged on federal habeas corpus even though imposed pursuant to
the conviction of a federal court of competent jurisdiction.
[
Footnote 17]
The same principles have consistently been applied in cases of
state prisoners seeking habeas corpus in the federal courts,
although the development of the law in this area was at first
delayed for several reasons. The first Judiciary Act did not extend
federal habeas to prisoners in state custody,
Ex parte
Dorr, 3 How. 103, and, shortly after Congress
removed this limitation in 1867, it withdrew from this Court
jurisdiction of appeals from habeas
Page 372 U. S. 410
decisions by the lower federal courts and did not restore it for
almost 20 years. [
Footnote
18] Moreover, it was not until this century that the Fourteenth
Amendment was deemed to apply some of the safeguards of criminal
procedure contained in the Bill of Rights to the States. Yet,
during the period of the withdrawal of the Supreme Court's
jurisdiction of habeas appeals, the lower federal courts did not
hesitate to discharge state prisoners whose convictions rested on
unconstitutional statutes or had otherwise been obtained in
derogation of constitutional rights. [
Footnote 19] After its jurisdiction had been restored,
this Court adhered to the pattern set by the lower federal courts
and to the principles enunciated in
Ex parte Siebold and
the other federal prisoner cases. [
Footnote 20] More recently, further applications of the
Fourteenth Amendment in state criminal proceedings have led the
Court to find correspondingly more numerous occasions upon which
federal habeas would lie. [
Footnote 21]
Page 372 U. S. 411
Mr. Justice Holmes expressed the rationale behind such decisions
in language that sums up virtually the whole history of the Great
Writ:
". . . [H]abeas corpus cuts through all forms, and goes to the
very tissue of the structure. It comes in from the outside, not in
subordination to the proceedings, and although every form may have
been preserved, opens the inquiry whether they have been more than
an empty shell."
"The argument for the appellee, in substance, is that the trial
was in a court of competent jurisdiction. . . . But . . . ,
[w]hatever disagreement there may be as to the scope of the phrase
'due process of law,' there can be no doubt that it embraces the
fundamental conception of a fair trial. . . . We are not speaking
of mere disorder, or mere irregularities in procedure, but of a
case where the processes of justice are actually subverted. In such
a case, the Federal court has jurisdiction to issue the writ. The
fact that the state court still has its general jurisdiction and is
otherwise a competent court does not make it impossible to find
that a jury has been subjected to intimidation in a particular
case. The loss of jurisdiction is not general, but particular, and
proceeds from the control of a hostile influence. [
Footnote 22]"
We do not suggest that this Court has always followed an
unwavering line in its conclusions as to the availability
Page 372 U. S. 412
of the Great Writ. Our development of the law of federal habeas
corpus has been attended, seemingly, with some backing and filling.
E.g., Ex parte Parks, 93 U. S. 18;
Ex
parte Bigelow, 113 U. S. 328;
In re Belt, 159 U. S. 95;
In re Moran, 203 U. S. 96;
Knewel v. Egan, 268 U. S. 442.
Although the remedy extends to federal prisoners held in violation
of federal law, and not merely of the Federal Constitution, many
cases have denied relief upon allegations merely of error of law,
and not of a substantial constitutional denial.
E.g., Ex parte
Parks, supra, at
93 U. S. 20-21;
In re Wight, 134 U. S. 136,
134 U. S. 148;
Harlan v. McGourin, 218 U. S. 442,
218 U. S. 448;
Eagles v. United States ex rel. Samuels, 329 U.
S. 304. Such decisions are not, however, authorities
against applications which invoke the historic office of the Great
Writ to redress detentions in violation of fundamental law.
[
Footnote 23]
In some of the cases, the denial of the remedy on jurisdictional
grounds seems to have been chosen in preference to decision of the
merits of constitutional claims felt to be tenuous.
E.g., In re
Moran, supra; Knewel v. Egan, supra; Goto v. Lane,
265 U. S. 393;
United States v. Valante, 264 U.
S. 563. [
Footnote
24] And doubtless a powerful influence against the allowance of
the remedy to state prisoners
Page 372 U. S. 413
flowed from the availability of review of state criminal
judgments in this Court as of right.
See, e.g., Andrews v.
Swartz, 156 U. S. 272,
156 U. S. 276.
Before 1916, review of such judgments was not discretionary by writ
of certiorari, but of right by writ of error. [
Footnote 25] The occasions on which the
extraordinary remedy of habeas corpus was indispensable were
therefore few, since the practice of the Court was to put the
habeas corpus applicant to his writ of error.
E.g., In re
Frederich, 149 U. S. 70;
Bergemann v. Backer, 157 U. S. 655. And
when the Court had no general appellate jurisdiction of federal
criminal judgments, which was the case until 1891, [
Footnote 26] the writ was sparingly allowed
for the reason stated by Chief Justice Marshall in
Ex parte
Watkins, supra. Thus, in
Bigelow, the Court said:
"No appeal or writ of error . . . lies to this court. The act of
Congress has made the judgment of that court [the Supreme Court of
the District of Columbia] conclusive, as it had a right to do, and
the defendant, having one review of his trial and judgment, has no
special reason to complain."
113 U.S. at
113 U. S. 329.
The same view is apparent in
Ex parte Parks, supra at
93 U. S. 20-21;
Ex parte Curtis, 106 U. S. 371,
106 U. S. 375.
Cf. Harlan v. McGourin, supra, 218 U.S. at
218 U. S.
448.
Nevertheless, the possibly grudging scope given the Great Writ
in such cases is overshadowed by the numerous and varied
allegations which this Court has deemed cognizable on habeas not
only in the last decades, but continuously since the fetters of the
Watkins decision were
Page 372 U. S. 414
thrown off in
Ex parte Lange. E.g., Ex parte
Wilson, 114 U. S. 417
(Fifth Amendment grand jury right);
In re Converse,
137 U. S. 624 (Due
Process Clause of Fourteenth Amendment);
Rogers v. Peck,
199 U. S. 425
(same);
Felts v. Murphy, 201 U. S. 123
(same);
Lott v. Pittman, 243 U. S. 588
(same);
Callan v. Wilson, 127 U.
S. 540,
127 U. S. 557
(constitutional right to jury trial in federal criminal cases);
Hawaii v. Mankichi, 190 U. S. 197
(same) (by implication);
Arndstein v. McCarthy,
254 U. S. 71
(Self-Incrimination Clause of Fifth Amendment);
Morgan v.
Devine, 237 U. S. 632
(double jeopardy);
Andersen v. Treat, 172 U. S.
24 (Sixth Amendment right to counsel),
and see
decisions cited at notes
17
20 and
21 supra.
And so, although almost 300 years have elapsed since
Bushell's Case, changed conceptions of the kind of
criminal proceedings so fundamentally defective as to make
imprisonment pursuant to them constitutionally intolerable should
not be allowed to obscure the basic continuity in the conception of
the writ as the remedy for such imprisonments.
It now remains to consider this principle in the application to
the present case. It was settled in
Brown v. Allen, supra,
that the use of a coerced confession in a state criminal trial
could be challenged in a federal habeas corpus proceeding. Yet
actually the principle had been foreshadowed much earlier --
indeed, in the very first case in which this Court reversed a state
conviction on the ground that coerced confessions had been used in
evidence.
"That complaint is . . . of a wrong so fundamental that it made
the whole proceeding a mere pretense of a trial, and rendered the
conviction and sentence wholly void.
Moore v. Dempsey. . .
. [A]nd the proceeding thus vitiated could be challenged in any
appropriate manner."
Brown v. Mississippi, 297 U. S. 278,
297 U. S.
286-287. Under the conditions of modern society, Noia's
imprisonment, under a
Page 372 U. S. 415
conviction procured by a confession held by the Court of Appeals
in
Caminito v. Murphy to have been coerced, and which the
State here concedes was obtained in violation of the Fourteenth
Amendment, is no less intolerable than was Bushell's under the
conditions of a very different society, and habeas corpus is no
less the appropriate remedy.
II
But, it is argued, a different result is compelled by the
exigencies of federalism, which played no role in
Bushell's
Case.
We can appraise this argument only in light of the historical
accommodation that has been worked out between the state and
federal courts respecting the administration of federal habeas
corpus. Our starting point is the Judiciary Act of February 5,
1867, c. 28, § 1, 14 Stat. 385-386, which first extended federal
habeas corpus to state prisoners generally, and which survives,
except for some changes in wording, in the present statutory
codification. The original Act and the current provisions are set
out in an Appendix at the end of this opinion,
post, pp.
372 U. S.
441-445. Although the Act of 1867, like its English and
American predecessors, nowhere defines habeas corpus, its expansive
language and imperative tone, viewed against the background of
post-Civil War efforts in Congress to deal severely with the States
of the former Confederacy, would seem to make inescapable the
conclusion that Congress was enlarging the habeas remedy as
previously understood not only in extending its coverage to state
prisoners, but also in making its procedures more efficacious. In
1867, Congress was anticipating resistance to its Reconstruction
measures, and planning the implementation of the post-war
constitutional Amendments. Debated and enacted at the very peak of
the Radical Republicans' power,
see 2 Warren, The Supreme
Court in United
Page 372 U. S. 416
States History (1928), 455-497, the measure that became the Act
of 1867 seems plainly to have been designed to furnish a method
additional to and independent of direct Supreme Court review of
state court decisions for the vindication of the new constitutional
guarantees. Congress seems to have had no thought, thus, that a
state prisoner should abide state court determination of his
constitutional defense -- the necessary predicate of direct review
by this Court -- before resorting to federal habeas corpus. Rather,
a remedy almost in the nature of removal from the state to the
federal courts of state prisoners' constitutional contentions seems
to have been envisaged.
See Ex parte Bridges, 2 Woods 428,
432 (Cir.Ct.N.D.Ga. 1875);
Ex parte McCready, 1 Hughes 598
(Cir.Ct.E.D.Va. 1874).
Compare Rev.Stat., 1874, § 641
(providing for removal to Federal Circuit Court "When any civil
suit or criminal prosecution is commenced in any State court, for
any cause whatsoever, against any person who is denied or cannot
enforce in the judicial tribunals of the State . . . any right
secured to him by any law providing for the equal civil rights of
citizens of the United States");
Virginia v. Rives,
100 U. S. 313.
The elaborate provisions in the Act for taking testimony and
trying the facts anew in habeas hearings [
Footnote 27] lend support to this conclusion, as does
the legislative history of House bill No. 605, which became, with
slight changes, the Act of February 5, 1867. The bill was
introduced in
Page 372 U. S. 417
response to a resolution of the House on December 19, 1865,
asking the Judiciary Committee to determine
"what legislation is necessary to enable the courts of the
United States to enforce the freedom of the wives and children of
soldiers of the United States . . . , and also to enforce the
liberty of all persons under the operation of the constitutional
amendment abolishing slavery."
Cong.Globe, 39th Cong., 1st Sess. 87. The terms in which it was
described by its proponent, Representative Lawrence of Ohio, leave
little doubt of the breadth of its intended scope:
"the effect of . . . [bill No. 605] is to enlarge the privilege
of the writ of hobe [
sic] corpus, and make the
jurisdiction of the courts and judges of the United States
coextensive with all the powers that can be conferred upon them. It
is a bill of the largest liberty."
Cong.Globe, 39th Cong., 1st Sess. 4151 (1866). This Court,
shortly after the passage of the Act, described it in equally broad
terms:
"This legislation is of the most comprehensive character. It
brings within the habeas corpus jurisdiction of every court and of
every judge every possible case of privation of liberty contrary to
the National Constitution, treaties, or laws. It is impossible to
widen this jurisdiction."
Ex parte
McCardle, 6 Wall. 318,
73 U. S.
325-326.
In thus extending the habeas corpus power of the federal courts
evidently to what was conceived to be its constitutional limit, the
Act of February 5, 1867, clearly enough portended difficult
problems concerning the relationship of the state and federal
courts in the area of criminal administration. Such problems were
not slow to mature. Only eight years after passage of the Act, Mr.
Justice Bradley, sitting as Circuit Justice, held that a convicted
state prisoner who had not sought any state appellate or collateral
remedies could nevertheless win immediate release on federal habeas
if he proved the unconstitutionality of his conviction; although
the judgment
Page 372 U. S. 418
was not final within the state court system, the federal court
had the power to inquire into the legality of the prisoner's
detention.
Ex parte Bridges, supra. Accord, Ex parte
McCready, supra. This holding flowed inexorably from the clear
congressional policy of affording a federal forum for the
determination of the federal claims of state criminal defendants,
and it was explicitly approved by the full Court in
Ex parte
Royall, 117 U. S. 241,
117 U. S. 253,
a case in which habeas had been sought in advance of trial. The
Court held that, even in such a case, the federal courts had the
power to discharge a state prisoner restrained in violation of the
Federal Constitution,
see 117 U.S. at
117 U. S. 245,
117 U. S.
250-251, but that, ordinarily, the federal court should
stay its hand on habeas pending completion of the state court
proceedings. This qualification plainly stemmed from considerations
of comity, rather than power, and envisaged only the postponement,
not the relinquishment, of federal habeas corpus jurisdiction,
which had attached by reason of the allegedly unconstitutional
detention and could not be ousted by what the state court might
decide. As well stated in a later case:
". . . While the Federal courts have the power, and may
discharge the accused in advance of his trial if he is restrained
of his liberty in violation of the Federal Constitution or laws, .
. . the practice of exercising such power before the question has
been raised or determined in the state court is one which ought not
to be encouraged. The party charged waives no defect of
jurisdiction by submitting to a trial of his case upon the merits,
and we think that comity demands that the state courts, under whose
process he is held, and which are equally with the Federal courts
charged with the duty of protecting the accused in the enjoyment of
his constitutional
Page 372 U. S. 419
rights, should be appealed to in the first instance. Should such
rights be denied, his remedy in the Federal court will remain
unimpaired. [
Footnote
28]"
These decisions fashioned a doctrine of abstention whereby full
play would be allowed the States in the administration of their
criminal justice without prejudice to federal rights enwoven in the
state proceedings. Thus, the Court has frequently held that
application for a writ of habeas corpus should have been denied
"without prejudice to a renewal of the same after the accused
had availed himself of such remedies as the laws of the State
afforded. . . ."
Minnesota v. Brundage, 180 U.
S. 499,
180 U. S.
500-501.
See also Ex parte Royall, supra, at
117 U. S. 254.
With refinements, this doctrine requiring the exhaustion of state
remedies is now codified in 28 U.S.C. § 2254. [
Footnote 29] But its rationale has not
changed:
"it would be unseemly
Page 372 U. S. 420
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. . . . 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."
Darr v. Burford, 339 U. S. 200,
339 U. S. 204.
The rule of exhaustion "is not one defining power, but one which
relates to the appropriate exercise of power."
Bowen v.
Johnston, 306 U. S. 19,
306 U. S. 27.
Cf. Stack v. Boyle, 342 U. S. 1;
Frisbie v. Collins, 342 U. S. 519;
Douglas v. Green, 363 U. S. 192.
The reasoning of
Ex parte Royall and its progeny
suggested that, after the state courts had decided the federal
question on the merits against the habeas petitioner, he could
return to the federal court on habeas and there relitigate the
question, else a rule of timing would become a rule circumscribing
the power of the federal courts on habeas, in defiance of
unmistakable congressional intent. And so this Court has
consistently held, save only in
Frank v. Mangum,
237 U. S. 309. In
that case, the State Supreme Court had rejected on the merits
petitioner's contention of mob domination at his trial, and this
Court held that habeas would not lie because the State had afforded
petitioner corrective process. However, the decision seems grounded
not in any want of power, for the Court described the federal
courts' habeas powers in the broadest terms, 237 U.S. at
237 U. S.
330-331, but rather in a narrow conception of due
process in state criminal justice. The Court felt that, so long as
Frank had had an opportunity to challenge his conviction in some
impartial tribunal, such as the State Supreme Court, he had been
afforded the process he was constitutionally due.
Page 372 U. S. 421
The majority's position in
Frank, however, was
substantially repudiated in
Moore v. Dempsey, 261 U. S.
86, a case almost identical in all pertinent respects to
Frank. Mr. Justice Holmes, writing for the Court in
Moore (he had written the dissenting opinion in
Frank), said:
"if, in fact, a trial is dominated by a mob, so that there is an
actual interference with the course of justice, there is a
departure from due process of law; . . . [if] the State Courts
failed to correct the wrong, . . . perfection in the machinery for
correction . . . can[not] prevent this Court from securing to the
petitioners their constitutional rights."
261 U.S. at
261 U. S. 90-91.
It was settled in
Moore, restoring what evidently had been
the assumption until
Frank, see, e.g., Cook v. Hart,
146 U. S. 183,
146 U. S.
194-195, and cases cited in note
28 supra, that the state courts' view
of the merits was not entitled to conclusive weight. We have not
deviated from that position. [
Footnote 30] Thus, we
Page 372 U. S. 422
have left the weight to be given a particular state court
adjudication of a federal claim later pressed on habeas
substantially in the discretion of the Federal District Court:
"the state adjudication carries the weight that federal practice
gives to the conclusion of a court . . . of another jurisdiction on
federal constitutional issues. It is not
res
judicata."
Brown v. Allen, supra at
344 U. S. 458
(opinion of Mr. Justice Reed).
". . . [N]o binding weight is to be attached to the State
determination. The congressional requirement is greater. The State
court cannot have the last say when it, though on fair
consideration and what procedurally may be deemed fairness, may
have misconceived a federal constitutional right."
344 U.S. at
344 U. S. 508
(opinion of Mr. Justice Frankfurter). Even if the state court
adjudication turns wholly on primary, historical facts, the Federal
District Court has a broad power on habeas to hold an evidentiary
hearing and determine the facts. [
Footnote 31]
The breadth of the federal courts' power of independent
adjudication on habeas corpus stems from the very nature of the
writ, and conforms with the classic English practice. [
Footnote 32]
Page 372 U. S. 423
As put by Mr. Justice Holmes in his dissenting opinion in
Frank v. Mangum, supra, at
237 U. S.
348:
"If the petition discloses facts that amount to a loss of
jurisdiction in the trial court, jurisdiction could not be restored
by any decision above."
It is of the historical essence of habeas corpus that it lies to
test proceedings so fundamentally lawless that imprisonment
pursuant to them is not merely erroneous, but void. Hence, the
familiar principle that
res judicata is inapplicable in
habeas proceedings,
see, e.g., Darr v. Burford,
339 U. S. 200,
339 U. S. 214;
Salinger v. Loisel, 265 U. S. 224,
265 U. S. 230;
Frank v. Mangum, 237 U. S. 309,
237 U. S. 334;
Church, Habeas Corpus (1884), § 386, is really but an instance of
the larger principle that void judgments may be collaterally
impeached. Restatement, Judgments (1942), §§ 7, 11; Note,
Res
Judicata, 65 Harv.L.Rev. 818, 850 (1952).
Cf. Windsor v.
McVeigh, 93 U. S. 274,
93 U. S.
282-283. So also, the traditional characterization of
the writ of habeas corpus as an original (save perhaps when issued
by this Court [
Footnote 33])
civil remedy for the enforcement of the right to personal liberty,
[
Footnote 34] rather
than
Page 372 U. S. 424
as a stage of the state criminal proceedings or as an appeal
therefrom, emphasizes the independence of the federal habeas
proceedings from what has gone before. This is not to say that a
state criminal judgment resting on a constitutional error is void
for all purposes. But conventional notions of finality in criminal
litigation cannot be permitted to defeat the manifest federal
policy that federal constitutional rights of personal liberty shall
not be denied without the fullest opportunity for plenary federal
judicial review.
Despite the Court's refusal to give binding weight to state
court determinations of the merits in habeas, it has not
infrequently suggested that, where the state court declines to
reach the merits because of a procedural default, the federal
courts may be foreclosed from granting the relief sought on habeas
corpus. [
Footnote 35] But
the Court's
Page 372 U. S. 425
practice in this area has been far from uniform, [
Footnote 36] and even greater divergency
has characterized the practice of the lower federal courts.
[
Footnote 37]
For the present, however, it suffices to note that rarely, if
ever, has the Court predicated its deference to state procedural
rules on a want of
power to entertain a habeas application
where a procedural default was committed by the defendant in the
state courts. Typically, the Court, like the District Court in the
instant case, has approached the problem as an aspect of the rule
requiring exhaustion of state remedies, which is not a rule
distributing power as between the state and federal courts.
See pp.
372 U. S.
417-420,
supra. That was the approach taken in
the
Spencer and
Daniels decisions, the most
emphatic in their statement of deference to state rules of
procedure. The same considerations of comity that led the Court to
refuse relief to one who had not yet availed himself of his state
remedies likewise prompted the refusal of relief to one who had
inexcusably failed to tender the federal questions to the state
courts. Either situation poses a threat to the orderly
administration of criminal justice that ought, if possible, to be
averted. Whether, in fact, the conduct of a Spencer or
Page 372 U. S. 426
a Daniels was inexcusable in this sense is beside the point, as
is the arguable illogicality of turning a rule of timing into a
doctrine of forfeitures. The point is that the Court, by relying
upon a rule of discretion, avowedly flexible,
Frisbie v.
Collins, 342 U. S. 519,
yielding always to "exceptional circumstances,"
Bowen v.
Johnston, 306 U. S. 19,
306 U. S. 27,
has refused to concede jurisdictional significance to the abortive
state court proceeding.
III
We have reviewed the development of habeas corpus at some length
because the question of the instant case has obvious importance to
the proper accommodation of a great constitutional privilege and
the requirements of the federal system. Our survey discloses
nothing to suggest that the Federal District Court lacked the power
to order Noia discharged because of a procedural forfeiture he may
have incurred under state law. On the contrary, the nature of the
writ at common law, the language and purpose of the Act of February
5, 1867, and the course of decisions in this Court extending over
nearly a century are wholly irreconcilable with such a limitation.
At the time the privilege of the writ was written into the Federal
Constitution, it was settled that the writ lay to test any
restraint contrary to fundamental law, which in England stemmed
ultimately from Magna Charta, but in this country was embodied in
the written Constitution. Congress, in 1867, sought to provide a
federal forum for state prisoners having constitutional defenses by
extending the habeas corpus powers of the federal courts to their
constitutional maximum. Obedient to this purpose, we have
consistently held that federal court jurisdiction is conferred by
the allegation of an unconstitutional restraint, and is not
defeated by anything that may occur in the state court proceedings.
State procedural
Page 372 U. S. 427
rules plainly must yield to this overriding federal policy.
A number of arguments are advanced against this conclusion. One,
which concedes the breadth of federal habeas power, is that a state
prisoner who forfeits his opportunity to vindicate federal defenses
in the state court has been given all the process that is
constitutionally due him, and hence is not restrained contrary to
the Constitution. But this wholly misconceives the scope of due
process of law, which comprehends not only the right to be heard,
but also a number of explicit procedural rights -- for example, the
right not to be convicted upon evidence which includes one's
coerced confession -- drawn from the Bill of Rights. As Mr. Justice
Holmes explained in
Moore v. Dempsey, see pp. 372 U. S.
421-422, supra, a mob-dominated trial is no less a
denial of due process because the State Supreme Court believed that
the trial was actually a fair one.
A fortiori, due process
denied in the proceedings leading to conviction is not restored
just because the state court declines to adjudicate the claimed
denial on the merits.
A variant of this argument is that, if the state court declines
to entertain a federal defense because of a procedural default,
then the prisoner's custody is actually due to the default, rather
than to the underlying constitutional infringement, so that he is
not in custody in violation of federal law. [
Footnote 38] But this ignores the important
difference between rights and particular remedies.
Cf. Douglas
v. Jeannette, 319 U. S. 157;
Stefanelli v.
Minard, 342 U.S.
Page 372 U. S. 428
117;
Wolf v. Colorado, 338 U. S.
25. A defendant, by committing a procedural default, may
be debarred from challenging his conviction in the state courts
even on federal constitutional grounds. But a forfeiture of
remedies does not legitimize the unconstitutional conduct by which
his conviction was procured. Would Noia's failure to appeal have
precluded him from bringing an action under the Civil Rights Acts
against his inquisitors? The Act of February 5, 1867, like the
Civil Rights Acts, was intended to furnish an independent,
collateral remedy for certain privations of liberty. The conceptual
difficulty of regarding a default as extinguishing the substantive
right is increased where, as in Noia's case, the default forecloses
extraordinary remedies. In what sense is Noia's custody not in
violation of federal law simply because New York will not allow him
to challenge it on
coram nobis or on delayed appeal? But,
conceptual problems aside, it should be obvious that to turn the
instant case on the meaning of "custody in violation of the
Constitution" is to reason in circles. The very question we face is
how completely federal remedies fall with the state remedies; when
we have answered this, we shall know in what sense custody may be
rendered lawful by a supervening procedural default.
It is a familiar principle that this Court will decline to
review state court judgments which rest on independent and adequate
state grounds, notwithstanding the co-presence of federal grounds.
See, e.g., NAACP v. Alabama ex rel. Patterson,
357 U. S. 449;
Fox Film Corp. v. Miller, 296 U.
S. 207. Section 25 of the Judiciary Act of 1789, c. 20,
1 Stat. 85-87, denied this Court power to base the reversal of a
state court decision on any error other
"than such as . . . immediately respects . . . questions of
validity or construction of the said [Federal] constitution,
treaties, statutes, commissions, or authorities in dispute."
The deletion of the express restriction by the Judiciary
Page 372 U. S. 429
Act of February 5, 1867, c. 28, § 2, 14 Stat. 386-387, did not
enlarge this Court's power in that regard.
Murdock v.
Memphis, 20 Wall. 590.
Murdock was a case
involving state substantive grounds, but the principle is also
applicable in cases involving procedural grounds.
See, e.g.,
Herb v. Pitcairn, 324 U. S. 117;
Davis v. Wechsler, 263 U. S. 22;
Ward v. Board of County Comm'rs, 253 U. S.
17. Thus, a default such as Noia's, if deemed adequate
and independent (a question on which we intimate no view), would
cut off review by this Court of the state
coram nobis
proceeding in which the New York Court of Appeals refused him
relief. It is contended that it follows from this that the remedy
of federal habeas corpus is likewise cut off. [
Footnote 39]
The fatal weakness of this contention is its failure to
recognize that the adequate state ground rule is a function of the
limitations of appellate review. Most of the opinion in the
Murdock case is devoted to demonstrating the Court's lack
of jurisdiction on direct review to decide questions of state law
in cases also raising federal questions. It followed from this
holding that, if the state question was dispositive of the case,
the Court could not decide the federal question. The federal
question was moot; nothing turned on its resolution. And so we have
held that the adequate state ground rule is a consequence
Page 372 U. S. 430
of the Court's obligation to refrain from rendering advisory
opinions or passing upon moot questions. [
Footnote 40]
But while our appellate function is concerned only with the
judgments or decrees of state courts, the habeas corpus
jurisdiction of the lower federal courts is not so confined. The
jurisdictional prerequisite is not the judgment of a state court,
but detention
simpliciter. The entire course of decisions
in this Court elaborating the rule of exhaustion of state remedies
is wholly incompatible with the proposition that a state court
judgment is required to confer federal habeas
jurisdiction. And the broad power of the federal courts under 28
U.S.C. § 2243 summarily to hear the application and to "determine
the facts, and dispose of the matter as law and justice require,"
is hardly characteristic of an appellate jurisdiction. Habeas lies
to enforce the right of personal liberty; when that right is denied
and a person confined, the federal
Page 372 U. S. 431
court has the power to release him. Indeed, it has no other
power; it cannot revise the state court judgment; it can act only
on the body of the petitioner.
Medley, Petitioner,
134 U. S. 160,
134 U. S.
173.
To be sure, this may not be the entire answer to the contention
that the adequate state ground principle should apply to the
federal courts on habeas corpus, as well as to the Supreme Court on
direct review of state judgments. The
Murdock decision may
be supported not only by the factor of mootness, but in addition by
certain characteristics of the federal system. The first question
the Court had to decide in
Murdock was whether it had the
power to review state questions in cases also raising federal
questions. It held that it did not, thus affirming the independence
of the States in matters within the proper sphere of their
lawmaking power from federal judicial interference. For the federal
courts to refuse to give effect in habeas proceedings to state
procedural defaults might conceivably have some effect upon the
States' regulation of their criminal procedures. But the problem is
crucially different from that posed in
Murdock of the
federal courts' deciding questions of substantive state law. In
Noia's case, the only relevant substantive law is federal -- the
Fourteenth Amendment. State law appears only in the procedural
framework for adjudicating the substantive federal question. The
paramount interest is federal.
Cf. Dice v. Akron, C. & Y.
R. Co., 342 U. S. 359.
That is not to say that the States have not a substantial interest
in exacting compliance with their procedural rules from criminal
defendants asserting federal defenses. Of course, orderly criminal
procedure is a
desideratum, and, of course, there must be
sanctions for the flouting of such procedure. But that state
interest "competes . . . against an ideal . . . [the] ideal of fair
procedure." Schaefer, Federalism and State Criminal Procedure, 70
Harv.L.Rev. 1, 5 (1956).
Page 372 U. S. 432
And the only concrete impact the assumption of federal habeas
jurisdiction in the face of a procedural default has on the state
interest we have described, is that it prevents the State from
closing off the convicted defendant's last opportunity to vindicate
his constitutional rights, thereby punishing him for his default
and deterring others who might commit similar defaults in the
future.
Surely this state interest in an air-tight system of forfeitures
is of a different order from that, vindicated in
Murdock,
in the autonomy of state law within the proper sphere of its
substantive regulation. The difference is illustrated in the
settled principle that, if a prisoner is detained lawfully under
one count of the indictment, he cannot challenge the lawfulness of
a second count on federal habeas.
McNally v. Hill,
293 U. S. 131. For
the federal court to order the release of such a prisoner would be
to nullify a proceeding -- that, under the first count -- wholly
outside the orbit of federal interest. Contrariwise, the only count
under which Noia was convicted and imprisoned is admitted to be
vitiated by force of federal law.
Certainly this Court has differentiated the two situations in
its application of the adequate state ground rule. While it has
deferred to state substantive grounds so long as they are not
patently evasive of or discriminatory against federal rights, it
has sometimes refused to defer to state procedural grounds only
because they made burdensome the vindication of federal rights.
[
Footnote 41] That the
Page 372 U. S. 433
Court nevertheless ordinarily gives effect to state procedural
grounds may be attributed to considerations which are peculiar to
the Court's role and function, and have no relevance to habeas
corpus proceedings in the Federal District Courts: the
unfamiliarity of members of this Court with the minutiae of 50
States' procedures; the inappropriateness of crowding our docket
with questions turning wholly on particular state procedures; the
web of rules and statutes that circumscribes our appellate
jurisdiction, and the inherent and historical limitations of such a
jurisdiction.
A practical appraisal of the state interest here involved
plainly does not justify the federal courts' enforcing on habeas
corpus a doctrine of forfeitures under the guise of applying the
adequate state ground rule. We fully grant,
see p.
372 U. S. 438,
infra, that the exigencies of federalism warrant a
limitation whereby the federal judge has the discretion to deny
relief to one who has deliberately sought to subvert or evade the
orderly adjudication of his federal defenses in the state courts.
Surely no stricter rule is a realistic necessity. A man under
conviction for crime has an obvious inducement to do his very best
to keep his state remedies open, and not stake his all on the
outcome of a federal habeas proceeding which, in many respects, may
be less advantageous to him than a state court proceeding.
See
Rogers v. Richmond, 365 U. S. 534,
365 U. S.
547-548. And if, because of inadvertence or neglect, he
runs afoul of a state procedural requirement, and thereby forfeits
his state remedies, appellate and collateral, as well as direct
review thereof in this Court, those consequences should be
sufficient to vindicate the State's valid interest in orderly
procedure. Whatever residuum of state interest there may be under
such circumstances is manifestly insufficient in the face of the
federal policy, drawn from the ancient principles of the writ of
habeas corpus, embodied both in the Federal Constitution and in
Page 372 U. S. 434
the habeas corpus provisions of the Judicial Code, and
consistently upheld by this Court, of affording an effective remedy
for restraints contrary to the Constitution. For these several
reasons, we reject as unsound in principle, as well as not
supported by authority, the suggestion that the federal courts are
without power to grant habeas relief to an applicant whose federal
claims would not be heard on direct review in this Court because of
a procedural default furnishing an adequate and independent ground
of state decision.
What we have said substantially disposes of the further
contention that 28 U.S.C. § 2254 embodies a doctrine of forfeitures
and cuts off relief when there has been a failure to exhaust state
remedies no longer available at the time habeas is sought. This
contention is refuted by the language of the statute and by its
history. [
Footnote 42] It
was enacted to codify the judicially evolved rule of exhaustion,
particularly as formulated in
Ex parte Hawk, 321 U.
S. 114.
See the review of the legislative
history in
Darr v. Burford, 339 U.
S. 200,
339 U. S.
211-213. Nothing in the
Hawk opinion points to
past exhaustion. Very little support can be found in the long
course of previous decisions
Page 372 U. S. 435
by this Court elaborating the rule of exhaustion for the
proposition that it was regarded at the time of the revision of the
Judicial Code as jurisdictional, rather than merely as a rule
ordering the state and federal proceedings so as to eliminate
unnecessary federal-state friction. There is thus no warrant for
attributing to Congress, in the teeth of the language of 2254,
intent to work a radical innovation in the law of habeas corpus. We
hold that § 2254 is limited in its application to failure to
exhaust state remedies still open to the habeas applicant at the
time he files his application in federal court. [
Footnote 43] Parenthetically, we note that
our holding in
Irvin v. Dowd, 359 U.
S. 394, is not inconsistent. Our holding there was that,
since the Indiana Supreme Court had reached the merits of Irvin's
federal claim, the District Court was not barred by § 2254 from
determining the merits of Irvin's constitutional contentions.
IV
Noia timely sought and was denied certiorari here from the
adverse decision of the New York Court of Appeals on his
coram
nobis application, and therefore the case does not necessarily
draw in question the continued vitality of the holding in
Darr
v. Burford, supra, that a state prisoner must ordinarily seek
certiorari in this Court as a precondition of applying for federal
habeas corpus. But what we hold today necessarily overrules
Darr v. Burford to the extent it may be thought to have
barred a state prisoner from federal habeas relief if he had failed
timely to seek certiorari in this Court from an adverse state
decision. Furthermore, our decision today affects all procedural
hurdles to the achievement of swift and imperative justice on
habeas corpus, and because the
Page 372 U. S. 436
hurdle erected by
Darr v. Burford is unjustifiable
under the principles we have expressed, even insofar as it may be
deemed merely an aspect of the statutory requirement of present
exhaustion, that decision in that respect also is hereby
overruled.
The soundness of the decision was questioned from the beginning.
See Pollock, Certiorari and Habeas Corpus, 42 J. of
Crim.L. 356, 357-358, n. 15, 364 (1951). Section 2254 speaks only
of "remedies available in the courts of the State." Nevertheless,
the Court in
Darr v. Burford put a gloss upon these words
to include petitioning for certiorari in this Court, which is not
the court of any State, among the remedies that an applicant must
exhaust before proceeding in federal habeas corpus. It is true
that, before the enactment of § 2254, the Court had spoken of the
obligation to seek review in this Court before applying for habeas.
E.g., Baker v. Grice, 169 U. S. 284;
Markuson v. Boucher, 175 U. S. 184. But
that was at the time when review of state criminal judgments in
this Court was by writ of error. Review here was thus a stage of
the normal appellate process. The writ of certiorari, which today
provides the usual mode of invoking this Court's appellate
jurisdiction of state criminal judgments, "is not a matter of
right, but of sound judicial discretion, and will be granted only
where there are special and important reasons therefor." Supreme
Court Rule 19(1). Review on certiorari therefore does not provide a
normal appellate channel in any sense comparable to the writ of
error.
It is also true that
Ex parte Hawk, 321 U.
S. 114, a decision cited in the Reviser's Note to §
2254, intimated in dictum that exhaustion might comprehend seeking
certiorari here. 321 U.S. at
321 U. S.
116-117. But that passing reference cannot be exalted
into an attribution to Congress of a design patently belied by the
unequivocal statutory language.
Page 372 U. S. 437
The rationale of
Darr v. Burford emphasized the values
of comity between the state and federal courts, and assumed that
these values would be realized by requiring a state criminal
defendant to afford this Court an opportunity to pass upon state
action before he might seek relief in federal habeas corpus. But
the expectation has not been realized in experience. On the
contrary, the requirement of
Darr v. Burford has proved
only to be an unnecessarily burdensome step in the orderly
processing of the federal claims of those convicted of state
crimes. The goal of prompt and fair criminal justice has been
impeded because in the overwhelming number of cases the
applications for certiorari have been denied for failure to meet
the standard of Rule 19. And the demands upon our time in the
examination and decision of the large volume of petitions which
fail to meet that test have unwarrantably taxed the resources of
this Court. Indeed, it has happened that counsel, on oral argument,
has confessed that the record was insufficient to justify our
consideration of the case, but that he had felt compelled to make
the futile time-consuming application in order to qualify for
proceeding in a Federal District Court on habeas corpus to make a
proper record.
Bullock v. South Carolina, 365 U.
S. 292. And so, in a number of cases, the Court has
apparently excused compliance with the requirement.
See, e.g.,
Weston v. Sigler, 361 U. S. 37;
Bailey v. Arkansas, 358 U.S. 869;
Poret v.
Sigler, 355 U. S. 60;
Massey v. Moore, 348 U. S. 105.
Cf. Thomas v. Arizona, 356 U. S. 390,
356 U. S. 392,
n. 1. The same practice has sometimes been followed in the Federal
District Courts.
See Reitz, Federal Habeas Corpus:
Post-conviction Remedy for State Prisoners, 108 U. of Pa.L.Rev.
461, 499 (1960).
Moreover, comity does not demand that such a price in squandered
judicial resources be paid; the needs of comity are adequately
served in other ways. The requirement that the habeas petitioner
exhaust state court remedies
Page 372 U. S. 438
available to him when he applies for federal habeas corpus
relief gives state courts the opportunity to pass upon and correct
errors of federal law in the state prisoner's conviction. And the
availability to the States of eventual review on certiorari of such
decisions of lower federal courts as may grant relief is always
open. Our function of making the ultimate accommodation between
state criminal law enforcement and state prisoners' constitutional
rights becomes more meaningful when grounded in the full and
complete record which the lower federal courts on habeas corpus are
in a position to provide.
V
Although we hold that the jurisdiction of the federal courts on
habeas corpus is not affected by procedural defaults incurred by
the applicant during the state court proceedings, we recognize a
limited discretion in the federal judge to deny relief to an
applicant under certain circumstances. Discretion is implicit in
the statutory command that the judge, after granting the writ and
holding a hearing of appropriate scope, "dispose of the matter as
law and justice require," 28 U.S.C. § 2243, and discretion was the
flexible concept employed by the federal courts in developing the
exhaustion rule. Furthermore, habeas corpus has traditionally been
regarded as governed by equitable principles.
United States ex
rel. Smith v. Baldi, 344 U. S. 561,
344 U. S. 573
(dissenting opinion). Among them is the principle that a suitor's
conduct in relation to the matter at hand may disentitle him to the
relief he seeks. Narrowly circumscribed, in conformity to the
historical role of the writ of habeas corpus as an effective and
imperative remedy for detentions contrary to fundamental law, the
principle is unexceptionable. We therefore hold that the federal
habeas judge may, in his discretion, deny relief to an applicant
who has deliberately bypassed the orderly procedure of the state
courts and in so doing has forfeited his state court remedies.
Page 372 U. S. 439
But we wish to make very clear that this grant of discretion is
not to be interpreted as a permission to introduce legal fictions
into federal habeas corpus. The classic definition of waiver
enunciated in
Johnson v. Zerbst, 304 U.
S. 458,
304 U. S. 464
-- "an intentional relinquishment or abandonment of a known right
or privilege" -- furnishes the controlling standard. If a habeas
applicant, after consultation with competent counsel or otherwise,
understandingly and knowingly forewent the privilege of seeking to
vindicate his federal claims in the state courts, whether for
strategic, tactical, or any other reasons that can fairly be
described as the deliberate bypassing of state procedures, then it
is open to the federal court on habeas to deny him all relief if
the state courts refused to entertain his federal claims on the
merits -- though, of course, only after the federal court has
satisfied itself, by holding a hearing or by some other means, of
the facts bearing upon the applicant's default.
Cf. Price v.
Johnston, 334 U. S. 266,
334 U. S. 291.
At all events, we wish it clearly understood that the standard here
put forth depends on the considered choice of the petitioner.
[
Footnote 44]
Cf.
Carnley v. Cochran, 369 U. S. 506,
369 U. S.
513-517;
Moore v. Michigan, 355 U.
S. 155,
355 U. S.
162-165. A choice made by counsel not participated in by
the petitioner does not automatically bar relief. Nor does a state
court's finding of waiver bar independent determination of the
question by the federal courts on habeas, for waiver affecting
federal rights is a federal question.
E.g., Rice v. Olson,
324 U. S. 786.
The application of the standard we have adumbrated to the facts
of the instant case is not difficult. Under no reasonable view can
the State's version of Noia's reason for not appealing support an
inference of deliberate by passing of the state court system. For
Noia to have appealed
Page 372 U. S. 440
in 1942 would have been to run a substantial risk of
electrocution. His was the grisly choice whether to sit content
with life imprisonment or to travel the uncertain avenue of appeal
which, if successful, might well have led to a retrial and death
sentence.
See, e.g., Palko v. Connecticut, 302 U.
S. 319. He declined to play Russian roulette in this
fashion. This was a choice by Noia not to appeal, but, under the
circumstances, it cannot realistically be deemed a merely tactical
or strategic litigation step, or in any way a deliberate
circumvention of state procedures. This is not to say that, in
every case where a heavier penalty, even the death penalty, is a
risk incurred by taking an appeal or otherwise foregoing a
procedural right, waiver as we have defined it cannot be found.
Each case must stand on its facts. In the instant case, the
language of the judge in sentencing Noia,
see note 3 supra, made the risk
that Noia, if reconvicted, would be sentenced to death, palpable,
and indeed unusually acute.
VI
It should be unnecessary to repeat what so often has been said
and what so plainly is the case: that the availability of the Great
Writ of habeas corpus in the federal courts for persons in the
custody of the States offends no legitimate state interest in the
enforcement of criminal justice or procedure. Our decision today
swings open no prison gates. Today, as always, few indeed is the
number of state prisoners who eventually win their freedom by means
of federal habeas corpus. [
Footnote 45] Those few who are
Page 372 U. S. 441
ultimately successful are persons whom society has grievously
wronged and for whom belated liberation is little enough
compensation. Surely no fair-minded person will contend that those
who have been deprived of their liberty without due process of law
ought nevertheless to languish in prison. Noia, no less than his
codefendants Caminito and Bonino, is conceded to have been the
victim of unconstitutional state action. Noia's case stands on its
own; but surely no just and humane legal system can tolerate a
result whereby a Caminito and a Bonino are at liberty because their
confessions were found to have been coerced, yet a Noia, whose
confession was also coerced, remains in jail for life. For such
anomalies, such affronts to the conscience of a civilized society,
habeas corpus is predestined by its historical role in the struggle
for personal liberty to be the ultimate remedy. If the States
withhold effective remedy, the federal courts have the power and
the duty to provide it. Habeas corpus is one of the precious
heritages of Anglo-American civilization. We do no more today than
confirm its continuing efficacy.
Affirmed.
|
372
U.S. 391app|
APPENDIX TO OPINION OF THE COURT
The Judiciary Act of February 5, 1867, c. 28, § 1, 14 Stat.
385-386:
". . . [T]he several courts of the United States, and the
several justices and judges of such courts, within their
Page 372 U. S. 442
respective jurisdictions, in addition to the authority already
conferred by law, shall have power to grant writs of habeas corpus
in all cases where any person may be restrained of his or her
liberty in violation of the constitution, or of any treaty or law
of the United States, and it shall be lawful for such person so
restrained of his or her liberty to apply to either of said
justices or judges for a writ of habeas corpus, which application
shall be in writing and verified by affidavit, and shall set forth
the facts concerning the detention of the party applying, in whose
custody he or she is detained, and by virtue of what claim or
authority, if known, and the said justice or judge to whom such
application shall be made shall forthwith award a writ of habeas
corpus, unless it shall appear from the petition itself that the
party is not deprived of his or her liberty in contravention of the
constitution or laws of the United States. Said writ shall be
directed to the person in whose custody the party is detained, who
shall make return of said writ and bring the party before the judge
who granted the writ, and certify the true cause of the detention
of such person within three days thereafter, unless such person be
detained beyond the distance of twenty miles, and if beyond the
distance of twenty miles and not above one hundred miles, then
within ten days, and if beyond the distance of one hundred miles,
then within twenty days. And upon the return of the writ of habeas
corpus a day shall be set for the hearing of the cause, not
exceeding five days thereafter, unless the party petitioning shall
request a longer time. The petitioner may deny any of the material
facts set forth in the return, or may allege any fact to show that
the detention is in contravention of the constitution or laws of
the United States, which allegations or denials shall be made on
oath. The said return may be amended by leave of the court or judge
before or after the same is filed, as also may all suggestions made
against it, that thereby the
Page 372 U. S. 443
material facts may be "
brk:
ascertained. The said court or judge shall proceed in a summary
way to determine the facts of the case, by hearing testimony and
the arguments of the parties interested, and if it shall appear
that the petitioner is deprived of his or her liberty in
contravention of the constitution or laws of the United States, he
or she shall forthwith be discharged and set at liberty. And if any
person or persons to whom such writ of habeas corpus may be
directed shall refuse to obey the same, or shall neglect or refuse
to make return, or shall make a false return thereto, in addition
to the remedies already given by law, he or they shall be deemed
and taken to be guilty of a misdemeanor, and shall, on conviction
before any court of competent jurisdiction, be punished by fine not
exceeding one thousand dollars, and by imprisonment not exceeding
one year, or by either, according to the nature and aggravation of
the case. From the final decision of any judge, justice, or court,
inferior to the circuit court, an appeal may be taken to the
circuit court of the United States for the district in which said
cause is heard, and from the judgment of said circuit court to the
Supreme Court of the United States, on such terms and under such
regulations and orders, as well for the custody and appearance of
the person alleged to be restrained of his or her liberty, as for
sending up to the appellate tribunal a transcript of the petition,
writ of habeas corpus, return thereto, and other proceedings, as
may be prescribed by the Supreme Court, or, in default of such, as
the judge hearing said cause may prescribe, and pending such
proceedings or appeal, and until final judgment be rendered
therein, and after final judgment of discharge in the same, any
proceeding against such person so alleged to be restrained of his
or her liberty in any State court, or by or under the authority of
any State, for any matter or thing so heard and determined, or in
process of being heard and determined, under and by virtue of such
writ of habeas corpus, shall be deemed null and void.
Page 372 U. S. 444
28 U.S.C. § 2241:
"(a) Writs of habeas corpus may be granted by the Supreme Court,
any justice thereof, the district courts and any circuit judge
within their respective jurisdictions. . . ."
"
* * * *"
"(c) The writ of habeas corpus shall not extend to a prisoner
unless --"
"
* * * *"
"(3) He is in custody in violation of the Constitution or laws
or treaties of the United States. . . ."
28 U.S.C. § 2243:
"A court, justice or judge entertaining an application for a
writ of habeas corpus shall forthwith award the writ or issue an
order directing the respondent to show cause why the writ should
not be granted, unless it appears from the application that the
applicant or person detained is not entitled thereto."
"The writ, or order to show cause shall be directed to the
person having custody of the person detained. It shall be returned
within three days unless for good cause additional time, not
exceeding twenty days, is allowed."
"The person to whom the writ or order is directed shall make a
return certifying the true cause of the detention"
"When the writ or order is returned a day shall be set for
hearing, not more than five days after the return unless for good
cause additional time is allowed."
"Unless the application for the writ and the return present only
issues of law the person to whom the writ is directed shall be
required to produce at the hearing the body of the person
detained."
"The applicant or the person detained may, under oath, deny any
of the facts set forth in the return or allege any other material
facts. "
Page 372 U. S. 445
"The return and all suggestions made against it may be amended,
by leave of court, before or after being filed."
"The court shall summarily hear and determine the facts, and
dispose of the matter as law and justice require."
[
Footnote 1]
The Appellate Division of the New York Supreme Court and the New
York Court of Appeals, on the direct appeals of Caminito and
Bonino, affirmed the convictions.
People v. Bonino, People v.
Caminito, 265 App.Div. 960, 38 N.Y.S.2d 1019 (1942); 291 N.Y.
541 (1943), 50 N.E.2d 654. Certiorari was not sought here. Motions
to reargue appeals in the New York Court of Appeals may be made at
any time. Caminito filed motions for reargument in 1948 and 1954.
The motions were denied. 297 N.Y. 882, 79 N.E.2d 277; 307 N.Y. 686,
120 N.E.2d 857; we denied certiorari from the second denial. 348
U.S. 839. Bonino filed a similar motion in 1947, which was denied,
296 N.Y. 1004, 73 N.E.2d 579. Certiorari was denied. 333 U.S. 849.
Caminito then sought federal habeas corpus in the District Court
for the Northern District of New York. The application was denied.
127 F.
Supp. 689 (1955). The Court of Appeals for the Second Circuit
reversed, sustaining Caminito's claim that his confession had been
procured in violation of the Fourteenth Amendment; he was directed
to be discharged unless the State accorded him a new trial.
United States ex rel. Caminito v. Murphy, 222 F.2d 698
(1955); certiorari was denied, 350 U.S. 896. After Caminito's
success, Bonino filed a motion for reargument of his appeal in the
New York Court of Appeals. The motion was granted, and his
conviction was also set aside and a new trial ordered on the ground
that his confession had been unconstitutionally procured.
People v. Bonino, 1 N.Y.2d 752, 135 N.E.2d 51 (1956). Both
Caminito and Bonino are now at liberty. It was said by the District
Court in the opinion denying Noia relief in federal habeas,
"Even though Bonino and Caminito still remain under indictment,
it is most highly improbable that they will ever be tried again,
since the State presented no evidence but the presently unavailable
coercion [
sic] confessions in 1942. The obtaining of new
evidence would appear at this late date impossible."
183 F.
Supp. at 227, n. 6.
[
Footnote 2]
The stipulation is as follows:
"For purposes of this proceeding, the District Attorney of Kings
County concedes that the coercive nature of the confession elicited
from the respondent and introduced in evidence against him at the
trial in Kings County Court was established, and, therefore, the
record of trial need not be printed."
Brief for Respondent, p. 15, star footnote.
The facts surrounding the taking of the three confessions were
essentially the same. A vivid statement of these facts is given in
United States ex rel. Caminito v. Murphy, supra. The Court
of Appeals condemned in strong terms the methods used to obtain the
confessions.
"All decent Americans soundly condemn satanic practices like
those described above when employed in totalitarian regimes. It
should shock us when American police resort to them, for they do
not comport with the barest minimum of civilized principles of
justice. . . ."
222 F.2d at 701.
[
Footnote 3]
After Caminito and Bonino were released, Noia, unable to employ
the procedure of a motion for reargument, since he had not appealed
from his conviction, made an application to the sentencing court in
the nature of
coram nobis. The Kings County Court set
aside his conviction.
People v. Noia, 3 Misc.2d 447, 158
N.Y.S.2d 683 (1956). The Appellate Division of the Supreme Court
reversed and reinstated the judgment of conviction, 4 App.Div.2d
698, 163 N.Y.S.2d 796 (1957). The New York Court of Appeals
affirmed the Appellate Division
sub nom. People v.
Caminito, 3 N.Y.2d 596, 148 N.E.2d 139 (1958). The Court of
Appeals held that
"[Noia's] failure to pursue the usual and accepted appellate
procedure to gain a review of the conviction does not entitle him
later to utilize . . .
coram nobis. . . . And this is so
even though the asserted error or irregularity relates to a
violation of constitutional right. . . ."
3 N.Y.2d at 601, 148 N.E.2d at 143. Certiorari was denied
sub nom. Noia v. New York, 357 U.S. 905. Noia then brought
the instant federal habeas corpus proceeding in the District Court
for the Southern District of New York.
The District Court held a hearing limited to an inquiry into the
facts surrounding Noia's failure to appeal, but made no findings as
to Noia's reasons. Noia and the lawyer who defended him at his
trial testified. Noia said that, while aware of his right to
appeal, he did not appeal because he did not wish to saddle his
family with an additional financial burden, and had no funds of his
own. The gist of the lawyer's testimony was that Noia was also
motivated not to appeal by fear that, if successful, he might get
the death sentence if convicted on a retrial. The trial judge, not
bound to accept the jury's recommendation of a life sentence, had
said when sentencing him,
"I have thought seriously about rejecting the recommendation of
the jury in your case, Noia, because I feel that, if the jury knew
who you were and what you were and your background as a robber,
they would not have made a recommendation. But you have got a good
lawyer, that is my wife. The last thing she told me this morning is
to give you a chance."
Record, ff. 2261-2262. Noia's confession included an admission
that he was the one who had actually shot the victim.
[
Footnote 4]
E.g., Reitz, Federal Habeas Corpus: Impact of an
Abortive State Proceeding, 74 Harv.L.Rev. 1315 (1961); Brennan,
Federal Habeas Corpus and State Prisoners: An Exercise in
Federalism, 7 Utah L.Rev. 423 (1961); Hart, Foreword, The Supreme
Court, 1958 Term, 73 Harv.L.Rev. 4, 101-121 (1959).
[
Footnote 5]
Habeas corpus has always had other functions besides inquiry
into illegal detention with a view to an order releasing the
petitioner. Blackstone names four:
habeas corpus ad
respondendum, ad satisfaciendum, ad prosequendum, testificandum,
deliberandum, ad faciendum et recipiendum. 3 Commentaries
129-132.
See, e.g., Carbo v. United States, 364 U.
S. 611;
Price v. Johnston, 334 U.
S. 266. The present case, of course, concerns only the
ad subjiciendum form.
[
Footnote 6]
Church, Habeas Corpus (1884), §§ 38-45; Carpenter, Habeas Corpus
in the Colonies, 8 Am.Hist.Rev. 18 (1902).
[
Footnote 7]
"The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public
Safety may require it."
[
Footnote 8]
See 1 Holdsworth, History of English Law (1927),
227-228; Chafee, The Most Important Human Right in the
Constitution, 32 B.U.L.Rev. 143, 146-159 (1952).
[
Footnote 9]
See Church,
supra, note 6 § 40;
Ex parte Bollman and Swartwout,
supra, (petition for habeas by alleged seditious
coconspirators of Aaron Burr);
Ex parte
Milligan, 4 Wall. 2 (presidential power to
institute trial by military tribunal during Civil War);
Ex
parte Quirin, 317 U. S. 1 (habeas
sought by German saboteurs sentenced to death by a secret military
tribunal);
Ex parte Endo, 323 U.
S. 283 (power to hold loyal citizen of Japanese descent
in relocation center in World War II challenged on habeas). All the
significant statutory changes in the federal writ have been
prompted by grave political crises. The first modification of the
provisions of the Judiciary Act of 1789 was made in the Force Act
of March 2, 1833, c. 57, § 7, 4 Stat. 634-635, in response to South
Carolina's nullification ordinance. The Act provided that federal
courts and judges could release from state custody persons who had
been acting under federal authority. The Act of August 29, 1842, c.
257, 5 Stat. 539-540, which extended federal habeas to foreign
nationals acting under authority of a foreign state, was prompted
by British diplomatic protest following the trial of a Canadian
soldier by a New York State court.
See People v. McLeod,
25 Wend. 483 (N.Y.Sup.Ct. 1841). The Act of February 5, 1867, c.
28, § 1, 14 Stat. 385-386, which extended federal habeas to state
prisoners generally, was passed in anticipation of possible
Southern recalcitrance toward Reconstruction legislation.
See p.
372 U. S. 415,
infra. That was the last important statutory change.
See Rev.Stat., 1874, §§ 751-766; 28 U.S.C. §§ 451-466
(1940 ed.); 28 U.S.C. §§ 2241-2255 (1958 ed.); Longsdorf, The
Federal Habeas Corpus Acts Original and Amended, 13 F.R.D. 407
(1953).
[
Footnote 10]
Quoted in Walker, The Constitutional and Legal Development of
Habeas Corpus as the Writ of Liberty (1960), 44-45.
[
Footnote 11]
1 Holdsworth,
supra, note 8 at 227.
See, e.g., Dolphin v. Shutford
(1542), reported in 2 Marsden, Select Pleas in the Court of
Admiralty (1897), pp. xlvi-xlvii, discussed in Walker,
supra, note 10 at
24 (King's Bench issued habeas to remove prisoner held pursuant to
order of the Admiralty Court).
See further Walker,
supra, at 22-25. Of course, the state courts are not
inferior courts in any sense thought (at least by King's Bench) to
be true of the Admiralty Court; the issuance of writs of habeas by
the federal courts is, rather, an aspect of the supremacy of
federal law.
Brown v. Allen, 344 U.
S. 443,
344 U. S. 510
(opinion of Mr. Justice Frankfurter).
[
Footnote 12]
See, e.g., Crepps v. Durden, 2 Cowper 640, 98 Eng.Rep.
1283 (K.B. 1777);
Rex v. Collyer, Sayer 44, 96 Eng.Rep.
797 (K.B. 1752);
King v. Hawkins, Fort. 272, 92 Eng.Rep.
849 (K.B. 1715); Ingersoll, History and Law of the Writ of Habeas
Corpus (1849), 29-31.
[
Footnote 13]
To be sure, the Act expressly excepts judicial detentions that
have ripened into criminal convictions. But this exception was not
intended to have the effect of denying the protection of habeas
corpus for such persons in appropriate cases. Rather, such persons
were excluded simply from the coverage of the Act and remitted to
their common law rights to habeas -- as construed, for example, in
Bushell's Case -- because the Act was designed to meet the
problem of bail, which had principal relevance at the
pre-conviction stage.
See Brief of Paul A. Freund,
Assigned Counsel, for Respondent,
United States v. Hayman,
342 U. S. 205 (No.
23, October Term 1951), pp. 31-32. Furthermore, the English
statutes governing habeas have never been regarded as preempting
common law rights to the writ.
Id. at 32; 11 Halsbury,
Laws of England (3d ed.1955), Crown Proceedings, p. 28, n.
(
u).
[
Footnote 14]
Habeas Corpus (Bouvier ed., 1856), B 10. (Italics supplied.)
See also 2 Hale, History of the Pleas of the Crown,
144:
"if it appear upon the return [to the writ of habeas corpus],
that the party is wrongfully committed, or by one that hath not
jurisdiction, or for a cause for which a man ought not to be
imprisond, the privilege shall be allowd, and the person discharged
from that imprisonment."
In Hale's Analysis of the Civil Part of the Law (4th ed.), 78,
habeas corpus is described as a remedy to remove or avoid
imprisonment "without lawful or just cause," and is elsewhere
expressly linked with due process of law:
"here falls in all the learning upon the stat. of magna charta,
and charta de foresta, which concerns THE LIBERTY OF THE SUBJECT;
especially magna charta, cap. 29. and those other statutes that
relate to the imprisonment of the subject without due process of
law; as the learning of habeas corpus, and the returns thereupon. .
. ."
Id. at 31.
[
Footnote 15]
"[H]aving established Federal courts, Congress would be
powerless to deny the privilege of the writ. Otherwise, Article I,
section 9 would be reduced to a dead letter."
Brief,
supra, note 13, at 29. It is also pointed out
there,
id. at 28, that the withdrawal of the Supreme
Court's jurisdiction of federal habeas appeals, which was upheld in
Ex parte
McCardle, 7 Wall. 506, did not affect the power of
the lower federal courts to grant habeas.
A contrary argument is presented in Collings, Habeas Corpus for
Convicts -- Constitutional Right or Legislative Grace? 40
Calif.L.Rev. 335 (1952). We intimate no view on any of these
constitutional questions.
[
Footnote 16]
The present status of
Watkins with respect to problems
of our jurisdiction to issue the writ on original applications to
this Court is not, of course, at issue in the instant case.
See Oaks, The "Original" Writ of Habeas Corpus in the
Supreme Court, 1962 Supreme Court Review (Kurland ed.), 153.
Cf. Ex parte Peru, 318 U. S. 578.
[
Footnote 17]
E.g., Ex parte Jackson, 96 U. S.
727;
Ex parte Virginia, 100 U.
S. 339;
Ex parte Yarbrough, 110 U.
S. 651;
Ex parte Wilson, 114 U.
S. 417;
In re Snow, 120 U.
S. 274;
Ex parte Bain, 121 U. S.
1;
Callan v. Wilson, 127 U.
S. 540;
In re Coy, 127 U.
S. 731;
United States v. DeWalt, 128 U.
S. 393;
Nielsen, Petitioner, 131 U.
S. 176;
In re Bonner, 151 U.
S. 242;
Andersen v. Treat, 172 U. S.
24;
Hawaii v. Mankichi, 190 U.
S. 197;
In re Heff, 197 U.
S. 488;
Morgan v. Devine, 237 U.
S. 632;
Arndstein v. McCarthy, 254 U. S.
71;
Escoe v. Zerbst, 295 U.
S. 490;
Johnson v. Zerbst, 304 U.
S. 458;
Bowen v. Johnston, 306 U. S.
19;
Holiday v. Johnston, 313 U.
S. 342;
Waley v. Johnston, 316 U.
S. 101;
Adams v. United States ex rel. McCann,
317 U. S. 269;
Von Moltke v. Gillies, 332 U. S. 708;
United States v. Hayman, 342 U. S. 205,
342 U. S.
212.
Since the enactment of 28 U.S.C. § 2255 in 1948 (motion to the
sentencing court, in the nature of
coram nobis; see United
States v. Hayman, supra), habeas corpus has become of less
practical significance for federal prisoners.
[
Footnote 18]
Act of March 27, 1868, c. 34, § 2, 15 Stat. 44; Act of March 3,
1885, c. 353, 23 Stat. 437.
See Ex parte
McCardle, 7 Wall. 506.
[
Footnote 19]
E.g., Ex parte McCready, 1 Hughes 598 (Cir.Ct.E.D.Va.
1874);
Ex parte Bridges, 2 Woods 428 (Cir.Ct.N.D.Ga.
1875);
In re Wong Yung Quy, 6 Sawyer 237 (Cir.Ct.D.Cal.
1880);
In re Parrott, 6
id. 349 (Cir.Ct.D.Cal.
1880);
In re Ah Lee, 6
id. 410 (D.C.D.Ore. 1880);
In re Ah Chong, 6
id. 451 (Cir.Ct.D.Cal. 1880);
Ex parte Houghton, 7 Fed. 657, 8 Fed. 897 (D.C.D. Vt.
1881).
[
Footnote 20]
E.g., Ex parte Royall, 117 U.
S. 241;
Wo Lee v. Hopkins, decided with
Yick Wo v. Hopkins, 118 U. S. 356;
Medley, Petitioner, 134 U. S. 160;
Savage, Petitioner, 134 U. S. 176;
Minnesota v. Barber, 136 U. S. 313
(disapproved in
Minnesota v. Brundaqe, 180 U.
S. 499);
Crowley v. Christensen, 137 U. S.
86;
In re Converse, 137 U.
S. 624;
In re Rahrer, 140 U.
S. 545;
McElvaine v. Brush, 142 U.
S. 155;
Cook v. Hart, 146 U.
S. 183;
In re Frederich, 149 U. S.
70;
Felts v. Murphy, 201 U.
S. 123;
Pettibone v. Nichols, 203 U.
S. 192;
Frank v. Mangum, 237 U.
S. 309,
237 U. S. 331;
Lott v. Pittman, 243 U. S. 588.
[
Footnote 21]
E.g., Moore v. Dempsey, 261 U. S.
86;
Mooney v. Holohan, 294 U.
S. 103;
House v. Mayo, 324 U. S.
42;
White v. Ragen, 324 U.
S. 760;
Dowd v. United States ex rel. Cook,
340 U. S. 206;
Brown v. Allen, 344 U. S. 443;
United States ex rel. Smith v. Baldi, 344 U.
S. 561;
Massey v. Moore, 348 U.
S. 105;
Cicenia v. Lagay, 357 U.
S. 504;
United States ex rel. Jennings v.
Ragen, 358 U. S. 276;
Douglas v. Green, 363 U. S. 192;
Rogers v. Richmond, 365 U. S. 534;
Irvin v. Dowd, 366 U. S. 717.
[
Footnote 22]
Frank v. Mangum, 237 U. S. 309,
237 U. S.
346-347 (dissenting opinion). The principles advanced by
Mr. Justice Holmes in his dissenting opinion in
Frank were
later adopted by the Court in
Moore v. Dempsey,
261 U. S. 86, and
have remained the law.
See pp.
372 U. S.
420-422,
infra.
[
Footnote 23]
Obviously, in a case of such mere error, the fact that this
Court had no general appellate jurisdiction,
note 26 infra, over federal criminal
judgments argued with special power against granting relief on
habeas.
[
Footnote 24]
In
Moran, the Court passed on the merits of one Fifth
Amendment ground tendered by the petitioner, but rejected the other
-- whether petitioner's being compelled to walk up and down before
the jury violated the Self-Incrimination Clause of the Fifth --
perfunctorily on the basis of lack of habeas jurisdiction to review
errors not going to the jurisdiction of the convicting court. In
Knewel, the basis of the habeas petition was a claim of
pleading deficiencies and improper venue under state law.
Petitioner's assertion that his constitutional rights had been
infringed was thus scarcely colorable. The allegations in
Goto and
Valante were similarly
insubstantial.
[
Footnote 25]
See Rev.Stat., 1874, § 709; Act of September 6, 1916,
c. 448, § 2, 39 Stat. 726-727; 28 U.S.C. § 1257.
[
Footnote 26]
See Act of March 3, 1891, c. 517, § 5, 26 Stat. 827.
The review thus provided was by writ of error. This obligatory
review was withdrawn by the Act of January 20, 1897, c. 68, 29
Stat. 492;
see Frankfurter and Landis, The Business of the
Supreme Court (1927), 109-113, although review as of right remained
for capital cases until the Act of March 3, 1911, c. 231, §§ 128,
240, 36 Stat. 1133-1134, 1157.
See 28 U.S.C. § 1254.
[
Footnote 27]
In making provision for the trial of fact on habeas (something
that had been left unmentioned in the previous statutes governing
federal habeas corpus), the Act of 1867 seems to have restored,
rather than extended, the common law powers of the habeas judge.
For it appears that the common law doctrine of the
incontrovertibility of the truth of the return was subject to
numerous exceptions. Hurd, Habeas Corpus (2d ed. 1876), 271; Bacon,
Abridgment, Habeas Corpus (Bouvier ed., 1856), B 11.
[
Footnote 28]
Cook v. Hart, 146 U. S. 183,
146 U. S.
194-195.
See, e.g., Ex parte Fonda,
117 U. S. 516;
In re Wood, 140 U. S. 278;
Pepke v. Cronan, 155 U. S. 100;
In re Frederich, 149 U. S. 70;
Whitten v. Tomlinson, 160 U. S. 231;
Reid v. Jones, 187 U. S. 153;
United States ex rel. Drury v. Lewis, 200 U. S.
1;
Pettibone v. Nichols, 203 U.
S. 192;
Ex parte Simon, 208 U.
S. 144;
Johnson v. Hoy, 227 U.
S. 245.
[
Footnote 29]
"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 has the right under the law of the State to raise,
by any available procedure, the question presented."
This section was added in the revision of the Judicial Code in
1948. The Reviser's Note reads: "This new section is declaratory of
existing law as affirmed by the Supreme Court. (
See Ex parte
Hawk, . . .
321 U. S. 114. . .
. )"
[
Footnote 30]
See, e.g., Ex parte Hawk, 321 U.
S. 114,
321 U. S. 118;
Jennings v. Illinois, 342 U. S. 104,
342 U. S. 109;
Brown v. Allen, 344 U. S. 443;
United States ex rel. Smith v. Baldi, 344 U.
S. 561;
Leyra v. Denno, 347 U.
S. 556;
Chessman v. Teets, 350 U. S.
3;
Thomas v. Arizona, 356 U.
S. 390;
Hawk v. Olson, 326 U.
S. 271,
326 U. S. 276
(dictum).
The argument has recently been advanced that the
Moore
decision did not, in fact, discredit the position advanced by the
Court in
Frank v. Mangum (that habeas would lie only if
the state courts had failed to afford petitioner corrective
process), and that this position was first upset in
Brown v.
Allen. Bator, Finality in Criminal Law and Federal Habeas
Corpus for State Prisoners, 76 Harv.L.Rev. 441, 4500 (1963). The
argument would seem untenable in light of certain factors: (1) The
opinion of the Court in
Moore, written by Mr. Justice
Holmes, is a virtual paraphrase of his dissenting opinion in
Frank. (2) The thesis of the
Frank majority finds
no support in other decisions of the Court; though the availability
of corrective process is sometimes mentioned as a factor bearing
upon grant or denial of federal habeas, such language typically
appears in the context of the exhaustion problem; indeed,
"available State corrective process" is part of the language of 28
U.S.C. § 2254.
See, e.g., White v. Ragen, 324 U.
S. 760,
324 U. S. 764.
(3) None of the opinions in
Brown v. Allen even remotely
suggests that the Court was changing the existing law in allowing
coerced confessions and racial discrimination in jury selection to
be challenged on habeas notwithstanding state court review of the
merits of these constitutional claims.
[
Footnote 31]
See Brown v. Allen, 344 U. S. 443,
344 U. S. 478
(opinion of Mr. Justice Reed),
344 U. S. 506
(opinion of Mr. Justice Frankfurter). We accompanied our denial of
certiorari in
Rogers v. Richmond, 357 U.
S. 220, with an opinion in which we said:
". . . while the District Judge may, unless he finds a vital
flaw in the State Court proceedings, accept the determination in
such proceedings, he need not deem such determination binding, and
may take testimony."
The
Rogers case was ultimately decided on other
grounds.
365 U. S. 365 U.S.
534.
[
Footnote 32]
Lord Herschell, in
Cox v. Hakes, [1890] 15 A.C. 506,
527-528 (H.L.), described the English practice as follows:
"No Court was bound by the view taken by any other, or felt
itself obliged to follow the law laid down by it. Each Court
exercised its independent judgment upon the case, and determined
for itself whether the return to the writ established that the
detention of the applicant was in accordance with the law. A person
detained in custody might thus proceed from court to court until he
obtained his liberty. . . . I need not dwell upon the security
which was thus afforded against any unlawful imprisonment. It is
sufficient to say that no person could be detained in custody if
any one of the tribunals having power to issue the writ of habeas
corpus was of opinion that the custody was unlawful."
This practice has lately been changed by statute, Administration
of Justice Act, 1960, 8 & 9 Eliz. II, c. 65, § 14(2).
[
Footnote 33]
See note 16
supra.
[
Footnote 34]
See In re Frederich, 149 U. S. 70,
149 U. S. 75-76,
Ex parte Clarke, 100 U. S. 399;
Ex parte Tom Tong, 108 U. S. 556;
Kurtz v. Moffitt, 115 U. S. 487;
Fisher v. Baker, 203 U. S. 174;
Riddle v. Dyche, 262 U. S. 333.
"[T]he writ of habeas corpus is a new suit brought by the
petitioner to enforce a civil right, which he claims as against
those who are holding him in custody. The proceeding is one
instituted by himself for his liberty, and not by the government to
punish for his crime. The judicial proceeding, under it is not to
inquire into the criminal act which is complained of, but into the
right to liberty notwithstanding the act. It is not a proceeding in
the original action."
1 Bailey, Habeas Corpus and Special Remedies (1913), § 4.
[
Footnote 35]
See In re Wood, 140 U. S. 278;
Markuson v. Boucher, 175 U. S. 184;
Davis v. Burke, 179 U. S. 399;
In re Lincoln, 202 U. S. 178;
Ex parte Spencer, 228 U. S. 652;
Goto v. Lane, 265 U. S. 393;
Frank v. Mangum, 237 U. S. 309,
237 U. S. 343;
Jennings v. Illinois, 342 U. S. 104;
Darr v. Burford, 339 U. S. 200;
Cicenia v. Lagay, 357 U. S. 504,
357 U. S.
507-508, n. 2;
Brown v. Allen, 344 U.
S. 443,
344 U. S. 503
(opinion of Frankfurter, J.);
Daniels v. Allen, decided
with
Brown v. Allen, supra, at
344 U. S.
485-487.
In
Sunal v. Large, 332 U. S. 174, the
Court held that federal prisoners who did not appeal their
convictions could not be released on habeas. However, the Court
expressly excluded errors so grave that they "cross the
jurisdictional line," 332 U.S. at
332 U. S. 179,
and implied that the claimed error was not even of constitutional
dimension,
id. at
332 U. S. 182-183.
See pp.
372 U. S.
411-412,
supra.
[
Footnote 36]
Moore v. Dempsey, 261 U. S. 86, is
the most striking example of the Court's seeming refusal to give
effect to a state procedural ground, though the Court's language is
ambiguous. 261 U.S. at
261 U. S.
91-92.
[
Footnote 37]
Compare, e.g., United States ex rel. Kozicky v. Fay,
248 F.2d 520 (C.A.2d Cir.1957);
Whitley v. Steiner, 293
F.2d 895 (C.A.4th Cir.1961);
United States ex rel. Stewart v.
Ragen, 231 F.2d 312 (C.A. 7th Cir.1956), and
United States
ex rel. Dopkowski v. Randolph, 262 F.2d 10 (C.A. 7th
Cir.1958),
with, e.g., Ex parte Houghton, 7 Fed. 657, 664,
8 Fed. 897, 903 (D.C.D.Vt. 1881);
Pennsylvania v. Cavell,
157 F. Supp. 272 (D.C.W.D.Pa.1957),
aff'd mem., 254 F.2d
816 (C.A.3d Cir.1958);
Johns v. Overlade, 122 F. Supp. 921
(D.C.N.D.Ind.1953);
Morrison v. Smyth, 273 F.2d 544, 547
(C.A.4th Cir.1960);
United States ex rel. Rooney v. Ragen,
158 F.2d 346, 352 (C.A. 7th Cir.1946).
[
Footnote 38]
This argument derives no support from the statutory
specification of "custody," 28 U.S.C. § 2241(c)(3). Of course,
custody in the sense of restraint of liberty is a prerequisite to
habeas, for the only remedy that can be granted on habeas is some
form of discharge from custody.
McNally v. Hill,
293 U. S. 131;
Medley, Petitioner, 134 U. S. 160,
134 U. S.
173-174;
Wales v. Whitney, 114 U.
S. 564,
114 U. S.
571.
[
Footnote 39]
See Irvin v. Dowd, 359 U. S. 394,
359 U. S. 410,
359 U. S.
412-413 (dissenting opinions); Hart,
note 4 supra. Professor Hart seems to
concede, however, that the conventional adequate state ground rule
would have to be modified to do service in habeas, 73 Harv.L.Rev.
at 112, n. 81, and further opines that the Court has "vacillated"
in its application of the rule even in conventional situations.
Id. at 116. It has been said by others also that the
adequate state ground rule has not been clearly articulated or
consistently applied by this Court.
E.g., Note, 74
Harv.L.Rev. 1375, 1394 (1961); Comment, 61 Col.L.Rev. 255, 256, 277
(1961). In any event, no habeas decision has been found which
expressly rests upon it. Thus, to apply the rule in habeas would be
to set sail on quite uncharted seas.
[
Footnote 40]
"The reason [for the adequate state ground rule] is so obvious
that it has rarely been thought to warrant statement. It is found
in the partitioning of power between the state and federal judicial
systems and in the limitations of our own jurisdiction. Our only
power over state judgments is to correct them to the extent that
they incorrectly adjudge federal rights. And our power is to
correct wrong judgments, not to revise opinions. We are not
permitted to render an advisory opinion, and if the same judgment
would be rendered by the state court after we corrected its views
of federal laws, our review could amount to nothing more than an
advisory opinion."
Herb v. Pitcairn, 324 U. S. 117,
324 U. S.
125-126.
See Note,
note 39 supra, at 1379 and n. 32.
We need not decide whether the adequate state ground rule is
constitutionally compelled, or merely a matter of the construction
of the statutes defining this Court's appellate review.
Murdock itself was predicated on statutory construction,
and the present statute governing our review of state court
decisions, 28 U.S.C. § 1257, limited as it is to "
judgments or
decrees rendered by the highest court of a State in which a
decision could be had" (italics supplied), provides ample statutory
warrant for our continued adherence to the principles laid down in
Murdock.
[
Footnote 41]
See, e.g., Staub v. Baxley, 355 U.
S. 313;
Williams v. Georgia, 349 U.
S. 375,
349 U.S.
389;
New York Cent. R. Co. v. New York & Pa.
Co., 271 U. S. 124;
Davis v. Wechsler, 263 U. S. 22;
Carter v. Texas, 177 U. S. 442;
Note, 74 Harv.L.Rev. 1375, 1388-1391 (1961); Comment, 61 Col.L.Rev.
255 (1961).
Whatever springes the State may set for those who are
endeavoring to assert rights that the State confers, the assertion
of federal rights, when plainly and reasonably made, is not to be
defeated under the name of local practice.
Davis v. Wechsler, supra, at
263 U. S. 24.
(Mr. Justice Holmes.)
[
Footnote 42]
See note 29
supra. Plainly, the words of § 2254 favor a construction
limited to presently available remedies. Reitz,
supra,
n 4, at 1365. The only two
decisions of this Court prior to 1948 in which past exhaustion was
strongly suggested were
Ex parte Spencer, 228 U.
S. 652, and
Frank v. Mangum, 237 U.
S. 309,
237 U. S. 343.
The latter, of course, was substantially overruled in
Moore v.
Dempsey, the language of which does not support a notion of
forfeitures.
See note
36 supra. On the other hand,
Mooney v.
Holohan, 294 U. S. 103, is
typical of decisions plainly implying a rule limited to presently
available remedies:
"before this Court is asked to issue a writ of habeas corpus, in
the case of a person held under a state commitment, recourse should
be had to whatever judicial remedy afforded by the State may still
remain open. . . ."
"Accordingly, leave to file the petition is denied, but without
prejudice."
294 U.S. at
294 U. S.
115.
[
Footnote 43]
By thus stating the rule, we do not mean to disturb the settled
principles governing its application in cases of presently
available state remedies.
See, e.g., Brown v. Allen,
344 U. S. 443,
344 U. S.
447-450.
[
Footnote 44]
To the extent that any decisions of this Court may be read to
suggest a standard of discretion in federal habeas corpus
proceedings different from what we lay down today, such decisions
shall be deemed overruled to the extent of any inconsistency.
[
Footnote 45]
A study in 1958 by the Administrative Office of the United
States Courts revealed that, in the preceding nine years, a total
of 24 federal habeas corpus petitioners had won release from state
penitentiaries. It should be borne in mind that the typical order
of the District Court in such circumstances is a conditional
release, permitting the State to rearrest and retry the petitioner
without actually discharging him from custody. But the study does
not show what number were successfully retried or reconvicted by
the state authorities. Report No. 2228 on Habeas Corpus of the
Senate Committee on the Judiciary, 85th Cong., 2d Sess. 28. The
informativeness of this study has been questioned. Reitz, Federal
Habeas Corpus: Post-conviction Remedy for State Prisoners, 108 U.
of Pa.L.Rev. 461, 479 and n. 98 (1960). Professor Reitz, from his
study of reported opinions, suggests that at least 39 habeas
petitioners were successful in the 10 years preceding 1960, at
least some of whom (it is not known how many), however, were later
retried and reconvicted.
Id. at 481.
MR. JUSTICE CLARK, dissenting.
I agree fully with and join the opinion of my Brother HARLAN.
Beyond question, the federal courts, until today, have had no power
to release a prisoner in respondent Noia's predicament, there being
no basis for such power in either the Constitution or the statute.
But the Court today, in releasing Noia, makes an "abrupt break" not
only with the Constitution and the statute, but also with its past
decisions, disrupting the delicate balance of federalism so
foremost in the minds of the Founding Fathers and so uniquely
important in the field of law enforcement. The short of it is that
Noia's incarceration rests entirely on an adequate and independent
state ground -- namely, that he knowingly failed to perfect any
appeal from his conviction of murder. While it may be that the
Court's "decision today swings open no prison gates," the Court
must admit in all candor that it effectively swings closed the
doors of Justice in the face of the State, since it certainly
cannot prove its case 20 years after the fact. In view of this
unfortunate turn of events, it appears important that we canvass
the consequences of today's action on state law enforcement.
First, there can be no question but that a rash of new
applications from state prisoners will pour into the federal
courts, and 98% of them will be frivolous, if history is any guide.
[
Footnote 2/1] This influx will
necessarily have an adverse effect upon the disposition of
meritorious applications, for,
Page 372 U. S. 446
as my Brother Jackson said, they will
"be buried in a flood of worthless ones. He who must search a
haystack for a needle is likely to end up with the attitude that
the needle is not worth the search."
Brown v. Allen, 344 U. S. 443,
344 U. S. 537
(1953) (concurring opinion). In fact, the courts are already
swamped with applications which cannot, because of sheer numbers,
be given more than cursory attention. [
Footnote 2/2]
Second, the effective administration of criminal justice in
state courts receives a staggering blow. Habeas corpus is, in
effect, substituted for appeal, seriously disturbing the orderly
disposition of state prosecutions and jeopardizing the finality of
state convictions in disregard of the States' comprehensive
procedural safeguards which, until today, have been respected by
the federal courts. Essential to the administration of justice is
the prompt enforcement of judicial decrees. After today, state
judgments will be relegated to a judicial limbo, subject to federal
collateral attack -- as here -- a score of years later despite a
defendant's willful failure to appeal.
The rights of the States to develop and enforce their own
judicial procedures, consistent with the Fourteenth Amendment, have
long been recognized as essential to the concept of a healthy
federalism. Those rights are
Page 372 U. S. 447
today attenuated, if not obliterated in the name of a victory
for the "struggle for personal liberty." But the Constitution
comprehends another struggle of equal importance, and places upon
our shoulders the burden of maintaining it -- the struggle for law
and order. I regret that the Court does not often recognize that
each defeat in that struggle chips away inexorably at the base of
that very personal liberty which it seeks to protect. One is
reminded of the exclamation of Pyrrhus: "One more such victory . .
and we are utterly undone."
These considerations have been of great concern to the Judicial
Conference of the United States, which has frequently sought to
have Congress repair the judicial loopholes in federal habeas
corpus for state prisoners. [
Footnote
2/3] Likewise, the Conference of Chief Justices, at its annual
meeting, has officially registered its dismay, [
Footnote 2/4] as has the National Association of
Attorneys General. [
Footnote 2/5]
Proposed legislation sponsored by one or more of these groups has
passed in the House in three separate sessions, but inaction by the
Senate caused each bill to die on the vine. [
Footnote 2/6]
Page 372 U. S. 448
Those proposals apparently were sparked by our decision in
Brown v. Allen, supra, [
Footnote 2/7] but the Court today goes far beyond that
decision by negating is companion case,
Daniels v. Allen,
344 U. S. 443,
344 U. S.
482-487 (1953). While I have heretofore opposed such
legislation, I must now admit that it may be the only alternative
in restoring the writ of habeas corpus to its proper place in the
judicial system. That place is one of great importance -- a remedy
against illegal restraint -- but it is not a substitute for or an
alternative to appeal, nor is it a burial ground for valid state
procedures.
[
Footnote 2/1]
In the 12-year period from 1946 to 1957 the petitioners were
successful in 1.4% of the cases. H.R.Rep. No. 548, 86th Cong., 1st
Sess. 37.
[
Footnote 2/2]
The increase in number of habeas corpus applications filed in
Federal District Courts by state prisoners is illustrated by the
following figures:
1941. . . . . . 127
1945. . . . . . 536
1950. . . . . . 560
1955. . . . . . 660
1960. . . . . . 872
1961. . . . . . 906
1962. . . . . 1,232
1962 and 1959 Annual Reports, Administrative Office of U.S.
Courts, pp. II-23 and 109, respectively.
[
Footnote 2/3]
See Report of the Committee on Habeas Corpus, Judicial
Conference of the United States, March 14, 1959, reprinted in
H.R.Rep. No. 548, 86th Cong., 1st Sess. 15-20.
[
Footnote 2/4]
See Report of the Habeas Corpus Committee of the
Conference of Chief Justices, August 14, 1954, reprinted in
H.R.Rep. No. 1293, 85th Cong., 2d Sess. 6-10. .
[
Footnote 2/5]
See Resolution of National Association of Attorneys
General, reprinted in Hearings on H.R. 6742, H.R. 4958, H.R. 3216
and H.R. 2269 before Subcommittee 3 of the House Judiciary
Committee, 86th Cong., 1st Sess. 44.
[
Footnote 2/6]
See H.R.Rep. No. 548, 86th Cong., 1st Sess. 4; H.R.
3216 (proposed by the Judicial Conference) was passed by the House,
105 Cong.Rec. 14637, and referred to the Senate Judiciary
Committee, 105 Cong.Rec. 14689, but was not reported by that
Committee. It was introduced again in the Eighty-seventh Congress
as H.R. 466, and was referred to the House Judiciary Committee, 107
Cong.Rec. 45, but no further action is recorded.
[
Footnote 2/7]
See Report of the Committee on Habeas Corpus,
372
U.S. 391fn2/3|>note 3,
supra, at 16.
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK and MR. JUSTICE
STEWART join, dissenting.
This decision, both in its abrupt break with the past and in its
consequences for the future, is one of the most disquieting that
the Court has rendered in a long time.
Section 2241 of the Judicial Code, 28 U.S.C. § 2241, entitled
"Power to grant writ," which is part of the federal habeas corpus
statute, provides, among other things:
"(c) The writ of habeas corpus shall not extend to a prisoner
unless --"
"
* * * *"
"(3) He is in custody in violation of the Constitution or laws
or treaties of the United States."
I dissent from the Court's opinion and judgment for the reason
that the federal courts have no power, statutory or constitutional,
to release the respondent Noia from state detention. This is
because his custody by New York does not violate any federal right,
since it is pursuant to a conviction whose validity rests upon an
adequate and independent state ground which the federal courts are
required to respect.
Page 372 U. S. 449
A full exposition of the matter is necessary, and I believe it
will justify the statement that, in what it does today, the Court
has turned its back on history and struck a heavy blow at the
foundations of our federal system.
I
DEPARTURE FROM HISTORY
The history of federal habeas corpus jurisdiction, I believe,
leaves no doubt that today's decision constitutes a square
rejection of long-accepted principles governing the nature and
scope of the Great Writ. [
Footnote
3/1]
Habeas corpus ad subjiciendum is today, as it has
always been, a fundamental safeguard against unlawful custody. The
importance of this prerogative writ, requiring the body of a person
restrained of liberty to be brought before the court so that the
lawfulness of the restraint may be determined, was recognized in
the Constitution, [
Footnote 3/2]
and the first Judiciary Act gave the federal courts authority to
issue the writ "agreeable to the principles and usages of law."
[
Footnote 3/3] Although the wording
of earlier statutory provisions has been changed, the basic
question before the court to which the writ is addressed has always
been the same: in the language of the present statute, on the books
since 1867, is the detention complained of "in violation of the
Constitution or laws or treaties of the United States"?
Supra, p.
372 U. S.
448.
Page 372 U. S. 450
Detention can occur in many contexts, and in each, the scope of
judicial inquiry will differ. Thus, a child may be detained by a
parent, an alien excluded by an immigration official, or a citizen
arrested by a policeman and held without being brought to a
magistrate. But the custody with which we are here concerned is
that resulting from a judgment of criminal conviction and sentence
by a court of law. And the question before us is the circumstances
under which that custody may be held to be inconsistent with the
commands of the Federal Constitution. What does history show?
1.
Pre-1915 period. -- The formative stage of the
development of habeas corpus jurisdiction may be said to have ended
in 1915, the year in which
Frank v. Mangum, 237 U.
S. 309, was decided. During this period, the federal
courts, on applications for habeas corpus complaining of detention
pursuant to a judgment of conviction and sentence, purported to
examine only the jurisdiction of the sentencing tribunal. In the
leading case of
Ex parte
Watkins, 3 Pet.193, the Court stated:
"An imprisonment under a judgment cannot be unlawful unless that
judgment be an absolute nullity, and it is not a nullity if the
court has general jurisdiction of the subject, although it should
be erroneous."
3 Pet. at
28 U. S. 203.
Many subsequent decisions, dealing with both state and federal
prisoners and involving both original applications to this Court
for habeas corpus and review of lower court decisions, reaffirmed
the limitation of the writ to consideration of the sentencing
court's jurisdiction over the person of the defendant and the
subject matter of the suit.
E.g., Ex parte Parks,
93 U. S. 18;
Andrews v. Swartz, 156 U. S. 272;
In re Belt, 159 U. S. 95;
In re Moran, 203 U. S. 96.
The concept of jurisdiction, however, was subjected to
considerable strain during this period, and the strain was
Page 372 U. S. 451
not lessened by the fact that, until the latter part of the last
century, federal criminal convictions were not generally reviewable
by the Supreme Court. [
Footnote
3/4] The expansion of the definition of jurisdiction occurred
primarily in two classes of cases: (1) those in which the
conviction was for violation of an allegedly unconstitutional
statute, and (2) those in which the Court viewed the detention as
based on some claimed illegality in the sentence imposed, as
distinguished from the judgment of conviction. An example of the
former is
Ex parte Siebold, 100 U.
S. 371, in which the Court considered on its merits the
claim that the acts under which the indictments were found were
unconstitutional, reasoning that "[a]n unconstitutional law is
void, and is as no law," and therefore, "if the laws are
unconstitutional and void, the Circuit Court acquired no
jurisdiction of the causes." 100 U.S. at
100 U. S.
376-377. [
Footnote 3/5]
An example of the latter is
Ex parte
Lange, 18 Wall. 163, in which this Court held that,
if a valid sentence had been carried out, and if the governing
statute permitted only one sentence, the sentencing judge lacked
jurisdiction to impose further punishment:
"[W] hen the prisoner . . . , by reason of a valid judgment, had
fully suffered one of the alternative punishments to which alone
the law subjected him, the power of the court to punish further was
gone."
18 Wall. at
85 U. S. 176.
[
Footnote 3/6]
Page 372 U. S. 452
It was also during this period that Congress, in 1867, first
made habeas corpus available by statute to prisoners held under
state authority. Act of February 5, 1867, c. 28, § 1, 14 Stat. 385.
In this 1867 Act, the Court now seems to find justification for
today's decision, relying on the statement of one of its proponents
that the bill was "coextensive with all the powers that can be
conferred" on the courts and judges of the United States.
Cong.Globe, 39th Cong., 1st Sess. 4151. But neither the statute
itself, its legislative history, nor its subsequent interpretation
lends any support to the view that habeas corpus jurisdiction since
1867 has been exercisable whether or not the state detention
complained of rested on decision of a federal question.
First, there is nothing in the language of the Act --
which spoke of the availability of the writ to prisoners
"restrained of . . . liberty in violation of the constitution . .
." -- to suggest that there was any change in the nature of the
writ as applied to one held pursuant to a judgment of conviction.
The language was that typically employed in habeas corpus cases,
and, as we have seen, it was not believed that a person so held was
restrained in violation of law if the sentencing court had personal
and subject matter jurisdiction. Rather, the change accomplished by
the language of the Act related to the classes of prisoners (in
particular, state as well as federal) for whom the writ would be
available.
Second, what little legislative history there is does
not suggest any change in the nature of the writ. The extremely
brief debates indicated only a lack of understanding as to what the
Act would accomplish, coupled
Page 372 U. S. 453
with an effort by the proponents to make it clear that the
purpose was to extend the availability of the writ to persons not
then covered; there was no indication of any intent to alter its
substantive scope. [
Footnote 3/7]
Thus, less than 20 years after enactment, a congressional committee
could say of the 1867 Act that it was not
"contemplated by its framers or . . . properly . . . construed
to authorize the overthrow of the final judgments of the State
courts of general jurisdiction by the inferior Federal judges. . .
. [
Footnote 3/8]"
Third, cases decided under the Act during this period
made it clear that the Court did not regard the Act as changing the
character of the writ. In considering the lawfulness of the
detention of state prisoners, the Court continued to confine itself
to questions it regarded as "jurisdictional."
See, e.g., In re
Rahrer, 140 U. S. 545;
Harkrader v. Wadley, 172 U. S. 148;
Pettibone v. Nichols, 203 U. S. 192. And
the Court repeatedly held that habeas corpus was not available to a
state prisoner to consider errors, even constitutional errors, that
did not go to the jurisdiction of the sentencing court.
E.g.,
In re Wood, 140 U. S. 278;
Andrews v. Swartz, 156 U. S. 272;
Bergemann v. Backer, 157 U. S. 655.
At the same time, in dealing with applications by state
prisoners, the Court developed the doctrine of exhaustion of state
remedies, a doctrine now embodied in 28 U.S.C. § 2254. In
Ex
parte Royall, 117 U. S. 241, the
prisoner had brought federal habeas corpus seeking release from his
detention pending a state prosecution, and alleging that the
statute under which he was to be tried was void under the Contract
Clause. The power of the federal
Page 372 U. S. 454
court to act in this case, if the allegations could be
established, was clear, since, under accepted principles, the State
would have lacked "jurisdiction" to detain the prisoner. But the
Court observed that the question of constitutionality would be open
to the prisoner at his state trial, and, absent any showing of
urgency, considerations of comity counseled the exercise of
discretion to withhold the writ at this early stage. In subsequent
decisions, the Court continued to insist that state remedies be
exhausted, even when the applicant alleged a lack of jurisdiction
in state authorities which, if true, would have enabled the federal
court to act on the application immediately.
E.g., Ex parte
Fonda, 117 U. S. 516;
Cook v. Hart, 146 U. S. 183;
New York v. Eno, 155 U. S. 89. As
stated in
Cook v. Hart, 146 U.S. at
146 U. S.
195,
"The party charged
waives no defect of jurisdiction by
submitting to a trial of his case upon the merits. . . . Should . .
. [his] rights be denied, his remedy in the Federal court will
remain unimpaired."
(Emphasis added.) The question whether the Constitution deprived
the State of
jurisdiction, in other words, would remain
open under traditional doctrine, on collateral as well as direct
attack.
There can be no doubt of the limited scope of habeas corpus
during this formative period, and of the consistent efforts to
confine the writ to questions of jurisdiction. But the cardinal
point for present purposes is that in no case was it held, or even
suggested, that habeas corpus would be available to consider any
claims by a prisoner held pursuant to a state court judgment whose
validity rested on an adequate
nonfederal ground. Indeed,
so long as the writ was confined to claims by state prisoners that
the State was constitutionally precluded from exercising its
jurisdiction in the particular case, it is difficult to conceive of
a decision to detain in such cases resting on an adequate state
ground. Even when the concept of jurisdiction was expanded, as in
Ex parte
Siebold, 100
Page 372 U. S. 455
U.S. 371, and other decisions, the matters open on habeas were
still limited to those which were believed to have deprived the
sentencing court of all competence to act, and which therefore
could always be raised on collateral attack. It is for this reason
that the
Royall line of "exhaustion" cases, relied on so
heavily by the Court, has no real bearing on the problem before us.
For those cases dealt only with the
discretion of the
court to take action which, if the allegations of lack of state
jurisdiction were upheld, it would have had
power to take
either before or after state consideration. The issue here, on the
other hand, is one of
power, and wholly different
considerations are involved.
In those few instances during this early period when the Court
discussed questions it did not regard as jurisdictional, it
occasionally went so far as to suggest that a constitutional claim
could not be raised on habeas even if the state decision to detain
rested on an
inadequate state ground -- that the only
avenue of relief was direct review. Thus, in
Andrews v.
Swartz, 156 U. S. 272,
where the claim made on federal habeas was the systematic exclusion
of Negroes from a state jury, the Court held it "a sufficient
answer to this contention that the state court had jurisdiction
both of the offence charged and of the accused."
Id. at
156 U. S. 276.
It continued:
"Even if it be assumed that the state court improperly denied to
the accused . . . the right to show by proof that persons of his
race were arbitrarily excluded . . . , it would not follow that the
court lost jurisdiction of the case within the meaning of the well
established rule that a prisoner under conviction and sentence of
another court will not be discharged on habeas corpus unless the
court that passed the sentence was so far without jurisdiction that
its proceedings must be regarded as void."
Ibid.
Page 372 U. S. 456
2.
1915-1953 period. -- The next stage of development
may be described as beginning in 1915 with
Frank v.
Mangum, 237 U. S. 309, and
ending in 1953 with
Brown v. Allen, 344 U.
S. 443. In
Frank, the prisoner had claimed
before the state courts that the proceedings in which he had been
convicted for murder had been dominated by a mob, and the State
Supreme Court, after consideration not only of the record but of
extensive affidavits, had concluded that mob domination had not
been established. [
Footnote 3/9]
Frank then sought federal habeas, and this Court affirmed the
denial of relief. But, in doing so, the Court recognized that
Frank's allegation of mob domination raised a constitutional
question which he was entitled to have considered by a competent
tribunal uncoerced by popular pressures. Such "corrective process"
had been afforded by the State Supreme Court, however, and since
Frank had received "notice, and a hearing, or an opportunity to be
heard" on his constitutional claims (237 U.S. at
237 U. S.
326), his detention was not in violation of federal law,
and habeas corpus would not lie.
It is clear that a new dimension was added to habeas corpus in
this case, for, in addition to questions previously thought of as
"jurisdictional," the federal courts were now to consider whether
the applicant had been given an adequate opportunity to raise his
constitutional claims before the state courts. And if no such
opportunity had been afforded in the state courts, the federal
claim would be heard on its merits. The Court thus rejected the
views expressed in
Andrews v. Swartz, supra, p.
156 U. S. 455,
by holding, in effect, that a constitutional claim could be heard
on habeas if the State's refusal to give it proper consideration
rested on an
inadequate state ground. But habeas would not
lie to reconsider constitutional questions that had been fairly
determined. And,
a fortiori,
Page 372 U. S. 457
it would not lie to consider a question when the state court's
refusal to do so rested on an adequate and independent state
ground.
In this connection, it is important to note the section of the
opinion relating to Frank's separate constitutional claim that his
involuntary absence from the courtroom at the time the verdict was
rendered invalidated the conviction. Frank had failed to raise this
point in his motion for a new trial; the state court held that it
had been "waived", and this Court decided that the state rule
barring assertion of the point after failure to raise it in a
motion for new trial was reasonable, and did not violate due
process. [
Footnote 3/10] Clearly,
the significance of the Court's ruling was that as to this
constitutional claim, whatever its merits if the point had been
properly preserved, there was an adequate nonfederal ground for the
detention.
In no case prior to
Brown v. Allen, I submit, was there
any substantial modification of the concepts articulated in the
Frank decision. In
Moore v. Dempsey, 261 U. S.
86, this Court did require a hearing on federal habeas
of a claim similar to that, in
Frank, of mob domination of
the trial, even though the state appellate court had purported to
pass on the claim, but only by refusing to "assume that the trial
was an empty ceremony." [
Footnote
3/11] The decision of this Court is sufficiently ambiguous that
it seems to have meant all things to all men. [
Footnote 3/12] But I suggest that the decision
cannot be taken to have overruled
Frank; it did not
purport to do so, and indeed it was joined by two Justices who had
joined in the
Frank opinion. Rather, what the Court
appears to have held was that the state
Page 372 U. S. 458
appellate court's perfunctory treatment of the question of mob
domination, amounting to nothing more than reliance on the
presumptive validity of the trial, was not, in fact, acceptable
corrective process, and federal habeas would therefore lie to
consider the merits of the claim. Until today, the Court has
consistently so interpreted the opinion, as in
Ex parte
Hawk, 321 U. S. 114,
321 U. S. 118,
where
Moore was cited as an example of a case in which
"the remedy afforded by state law proves in practice unavailable or
seriously inadequate."
See also Jennings v. Illinois,
342 U. S. 104,
342 U. S.
111.
Certainly there is no basis in the
Moore opinion,
whatever it may fairly be taken to mean, for concluding that the
Court required consideration on federal habeas of a question which
the state court had had an
adequate state ground for
refusing to consider. The claim of mob domination
was
considered, although apparently inadequately, by the state court,
and it was only on this premise that the claim was required to be
heard on habeas.
Subsequent decisions involving state prisoners continued to
indicate that the controlling question on federal habeas -- apart
from matters going to lack of state jurisdiction in light of
federal law -- was whether or not the State had afforded adequate
opportunity to raise the federal claim. If not, the federal claim
could be considered on its merits.
See, e.g., Mooney v.
Holohan, 294 U. S. 103;
White v. Ragen, 324 U. S. 760;
Woods v. Nierstheimer, 328 U. S. 211;
cf. Jennings v. Illinois, 342 U.
S. 104. [
Footnote
3/13]
Page 372 U. S. 459
A development paralleling that, in
Frank v. Mangum took
place during this period with regard to federal prisoners. The writ
remained unavailable to consider questions that were or could have
been raised in the original proceedings, or on direct appeal,
see Sunal v. Large, 332 U. S. 174, but
it was employed to permit consideration of constitutional questions
that could not otherwise have been adequately presented to the
courts.
E.g., Johnson v. Zerbst, 304 U.
S. 458;
Walker v. Johnston, 312 U.
S. 275;
Waley v. Johnston, 316 U.
S. 101. This limited scope of habeas corpus, and its
statutory substitute 28 U.S.C. § 2255, in relation to federal
prisoners may have survived
Brown v. Allen, and may still
survive today.
See, e.g., Franano v. United States, 303
F.2d 470,
cert. denied, 371 U.S. 865.
Compare Jordan
v. United States, 352 U.S. 904.
To recapitulate, then, prior to
Brown v. Allen, habeas
corpus would not lie for a prisoner who was in custody pursuant to
a state judgment of conviction by a court of
Page 372 U. S. 460
competent jurisdiction if he had been given an adequate
opportunity to obtain full and fair consideration of his federal
claim in the state courts. Clearly, under this approach, a
detention was not in violation of federal law if the validity of
the state conviction on which that detention was based rested on an
adequate nonfederal ground.
3.
Post-1953, Brown v. Allen, period. -- In 1953, this
Court rendered its landmark decisions in
Brown v. Allen,
344 U. S. 443, and
Daniels v. Allen, reported therewith, 344 U.S. at
344 U. S.
482-487. [
Footnote
3/14] Both cases involved applications for federal habeas
corpus by prisoners who were awaiting execution pursuant to state
convictions. In both cases, the constitutional contentions made
were that the trial court had erred in ruling confessions
admissible and in overruling motions to quash the indictment on the
basis of alleged discrimination in the selection of jurors.
In
Brown, these contentions had been presented to the
highest court of the State, on direct appeal from the conviction,
and had been rejected by that court on the merits,
State v.
Brown, 233 N.C. 202,
63 S.E.2d
99, after which this Court had denied certiorari, 341 U.S. 943.
At this point, the Court held, Brown was entitled to full
reconsideration of these constitutional claims, with a hearing if
appropriate, in an application to a Federal District Court for
habeas corpus.
It is manifest that this decision substantially expanded the
scope of inquiry on an application for federal habeas corpus.
[
Footnote 3/15]
Frank v.
Mangum and
Moore v. Dempsey had denied that the
federal courts in habeas corpus sat to
Page 372 U. S. 461
determine whether errors of law, even constitutional law, had
been made in the original trial and appellate proceedings. Under
the decision in
Brown, if a petitioner could show that the
validity of a state decision to detain rested on a determination of
a constitutional claim, and if he alleged that determination to be
erroneous, the federal court had the right and the duty to satisfy
itself of the correctness of the state decision.
But what if the validity of the state decision to detain rested
not on the determination of a federal claim, but rather on an
adequate nonfederal ground which would have barred direct review by
this Court? That was the question in
Daniels. The attorney
for the petitioners in that case had failed to mail the appeal
papers on the last day for filing, and although he delivered them
by hand the next day, the State Supreme Court refused to entertain
the appeal, ruling that it had not been filed on time. This ruling,
this Court held, barred federal habeas corpus consideration of the
claims that the state appellate court had refused to consider.
Language in Mr. Justice Reed's opinion for the Court appeared to
support the result alternatively in terms of waiver, [
Footnote 3/16] failure to exhaust state
remedies, [
Footnote 3/17] and the
existence of an adequate state ground. [
Footnote 3/18] But while the explanation may have been
ambiguous, the result was clear: habeas corpus would not lie
Page 372 U. S. 462
for a prisoner who was detained pursuant to a state judgment
which, in the view of the majority in
Daniels, rested on a
reasonable application of the State's own procedural requirements.
Moreover, the issue was plainly viewed as one of
authority, not of discretion. 344 U.S. at
344 U. S.
485.
I do not pause to reconsider here the question whether the state
ground in
Daniels was an adequate one; persuasive
arguments can be made that it was not. The important point for
present purposes is that the approach in
Daniels was
wholly consistent with established principles in the field of
habeas corpus jurisdiction. The problem, however, had been brought
into sharper focus by the result in
Brown. Once it is made
clear that the questions open on federal habeas extend to such
matters as the admissibility of confessions, or of other evidence,
the possibility that inquiry may be precluded by the existence of a
state ground adequate to support the judgment is substantially
increased.
Issues similar to those in
Daniels next came before the
Court in
Irvin v. Dowd, 359 U. S. 394. In
that case, the state court's decision affirming Irvin's conviction
for murder was ambiguous, and it could have been interpreted to
rest on a state ground even though Irvin's federal constitutional
claims were considered.
Irvin v. State, 236 Ind. 384,
139 N.E.2d
898;
see also the dissenting opinion of this writer in
Irvin v. Dowd, supra, 359 U. S. 412.
This Court, in reversing a dismissal of an application for federal
habeas corpus, concluded that the state court decision had rested
on determination of Irvin's federal claims, and held that those
claims could therefore be considered on federal habeas. The
majority appeared to approach the problem as one of exhaustion,
[
Footnote 3/19] but the basic
determination was
Page 372 U. S. 463
that the state court judgment, pursuant to which Irvin was
detained, did not rest on an application of the State's procedural
rules.
This brings us to the present case. There can, I think, be no
doubt that today's holding -- that federal habeas will lie despite
the existence of an adequate and independent nonfederal ground for
the judgment pursuant to which the applicant is detained -- is
wholly unprecedented. Indeed, it constitutes a direct rejection of
authority that is squarely to the contrary. That the result now
reached is a novel one does not, of course, mean that it is
necessarily incorrect or unwise. But a decision which finds
virtually no support in more than a century of this Court's
experience should certainly be subject to the most careful
scrutiny.
II
CONSTITUTIONAL BARRIER
The true significance of today's decision can perhaps best be
laid bare in terms of a hypothetical case presenting questions of
the powers of this Court on direct review, and of a Federal
District Court on habeas corpus.
1.
On direct review. -- Assume that a man is indicted,
and held for trial in a state court, by a grand jury from which
members of his race have been systematically excluded. Assume
further that the State requires any objection to the composition of
the grand jury to be raised prior to the verdict, that no such
objection is made, and that the defendant seeks to raise the point
for the first time on appeal from his conviction. If the state
appellate court refuses to consider the claim because it was raised
too late, and if certiorari is sought and granted, the initial
question before this Court will be whether there was an adequate
state ground for the judgment below. If the petitioner was
represented by counsel not shown to be incompetent, and if the
necessary information to make
Page 372 U. S. 464
the objection is not shown to have been unavailable at the time
of trial, it is certain that the judgment of conviction will stand,
despite the fact the indictment was obtained in violation of the
petitioner's constitutional rights. [
Footnote 3/20]
What is the reason for the rule that an adequate and independent
state ground of decision bars Supreme Court review of that decision
-- a rule which, of course, is as applicable to procedural as to
substantive grounds? In
Murdock v.
Memphis, 20 Wall. 590,
87 U. S.
632-636, it was concluded that, under the governing
statute, (i) the Court did not have jurisdiction, on review of a
state decision, to examine and decide "questions not of a Federal
character,"
id. at
87 U. S. 633,
and (ii) an erroneous decision of a federal question by a state
court could not warrant reversal if there were:
"any other matter or issue adjudged by the State court which is
sufficiently broad to maintain the judgment of that court
notwithstanding the error in deciding the issue raised by the
Federal question."
Id. at
87 U. S.
636.
But, as the Court in
Murdock so strongly implied and as
emphasized in subsequent decisions, the adequate state ground rule
has roots far deeper than the statutes governing our jurisdiction,
and rests on fundamentals that touch this Court's habeas corpus
jurisdiction equally with its direct reviewing power. An
examination of the alternatives that might conceivably be followed
will, I submit, confirm that the rule is one of constitutional
dimensions going to the heart of the division of judicial powers in
a federal system.
One alternative to the present rule would be for the Court to
review and decide any federal questions in the
Page 372 U. S. 465
case, even if the determination of nonfederal questions were
adequate to sustain the judgment below, and then to send the case
back to the state court for further consideration. But it needs no
extended analysis to demonstrate that such action would exceed this
Court's powers under Article III. As stated in
Herb v.
Pitcairn. 324 U. S. 117,
324 U. S.
126:
"[O]ur power is to correct wrong judgments, not to revise
opinions. We are not permitted to render an advisory opinion, and
if the same judgment would be rendered by the state court after we
corrected its views of federal laws, our review could amount to
nothing more than an advisory opinion."
Another alternative, which would avoid the problem of advisory
opinions, would be to take the entire case and to review on the
merits the state court's decision of every question in it. For
example, in our hypothetical case, the Court might consider on its
merits the question whether the state court correctly ruled that,
under state law objections to the composition of the grand jury
must be made prior to the verdict.
To a limited extent, of course, this procedural ruling of the
state court raises federal as well as state questions. It is clear
that a State may not preclude Supreme Court review of federal
claims by discriminating against or evading the assertion of a
federal right, and indeed that state procedural grounds for refusal
to consider a federal claim must rest on a "fair or substantial
basis." [
Footnote 3/21]
Occasionally this means that a state procedural rule which may
properly preclude the raising of state claims in a state court
Page 372 U. S. 466
cannot thwart review of federal claims in this Court. [
Footnote 3/22] These principles are
inherent in the concept that a state ground, to be of sufficient
breadth to support the judgment, must be
both "adequate"
and "independent."
But determination of the adequacy and independence of the state
ground, I submit, marks the constitutional limit of our power in
this sphere. The reason why this is so was perhaps most
articulately expressed in a different but closely related context
by Mr. Justice Field in his opinion in
Baltimore & O. R.
Co. v. Baugh, 149 U. S. 368,
149 U. S. 401.
He stated, in a passage quoted with approval by the Court in the
historic decision in
Erie R. Co. v. Tompkins, 304 U. S.
64,
304 U. S.
78-79:
"[T]he Constitution of the United States . . . recognizes and
preserves the autonomy and independence of the States --
independence in their legislative and independence in their
judicial departments. Supervision over either the legislative or
the judicial action of the States is in no case permissible except
as to matters by the Constitution specifically authorized or
delegated to the United States. Any interference with either,
except as thus permitted, is an invasion of the authority of the
State and, to that extent, a denial of its independence."
For this Court to go beyond the adequacy of the state ground and
to review and determine the correctness of that ground on its
merits would, in our hypothetical case, be to assume full control
over a State's procedures for the administration of its own
criminal justice. This is and must be beyond our power if the
federal system is to exist in substance, as well as form. The right
of the State to
Page 372 U. S. 467
regulate its own procedures governing the conduct of litigants
in its courts, and its interest in supervision of those procedures,
stand on the same constitutional plane as its right and interest in
framing "substantive" laws governing other aspects of the conduct
of those within its borders.
There is still a third possible course this Court might follow
if it were to reject the adequate state ground rule. The Act of
1867, which, in § 1, extended the habeas corpus jurisdiction to
state prisoners detained in violation of federal law, in § 2 gave
the Supreme Court the authority, in cases coming from the state
courts, to order execution directly without remanding the case. 14
Stat. 385, 386-387. That authority, which has been exercised at
least once, [
Footnote 3/23]
remained unimpaired through the modifications of appellate and
certiorari jurisdiction, [
Footnote
3/24] and exists today. [
Footnote
3/25] Acting pursuant to that authority in our hypothetical
case, this Court might grant certiorari, "ignore" the state ground
of decision, decide the federal question and, instead
Page 372 U. S. 468
of merely remanding the case, issue a writ requiring the
petitioner's release from custody. By this simple device, the
Court, it might be argued, would avoid problems of advisory
opinions while, at the same time, refraining from consideration of
questions of state law.
But, apart from the unseemliness of such a disposition, it is
apparent that what the Court would actually be doing would be to
decide the state law question
sub silentio, and to reverse
the state court judgment on that question. For if the petitioner is
detained pursuant to the judgment, and his detention is to be
terminated, that must mean that the state ground is not adequate to
support the only purpose for which the judgment was rendered. The
judgment, in other words, becomes a nullity.
Moreover, the future effect of such a disposition is precisely
the same as a reversal on the merits of the question of state law.
If noncompliance with a state rule requiring a particular
constitutional claim to be raised before verdict does not preclude
consideration of the claim by this Court, then the rule is invalid
in every significant sense, since no judgment based on its
application can ever be effective.
In short, the constitutional infirmities of such a disposition
by this Court are the same as those inherent in review of the state
question on its merits. The vice, however, is greater, because the
Court would, in actuality, be invalidating a state rule without
even purporting to consider it.
2.
On habeas corpus. -- The adequate state ground
doctrine thus finds its source in basic constitutional principles,
and the question before us is whether this is as true in a
collateral attack in habeas corpus as on direct review. Assume,
then, that, after dismissal of the writ of certiorari in our
hypothetical case, the prisoner seeks habeas corpus in a Federal
District Court, again complaining of the composition of the grand
jury that indicted him. Is that
Page 372 U. S. 469
federal court constitutionally more free than the Supreme Court
on direct review to "ignore" the adequate state ground, proceed to
the federal question, and order the prisoner's release?
The answer must be that it is not. Of course, as the majority
states, a judgment is not a "jurisdictional prerequisite" to a
habeas corpus application,
ante, p.
372 U. S. 430,
but that is wholly irrelevant. The point is that, if the applicant
is detained
pursuant to a judgment, termination of the
detention necessarily nullifies the judgment. The fact that a
District Court on habeas has fewer choices than the Supreme Court,
since it can
only act on the body of the prisoner, does
not alter the significance of the exercise of its power. In habeas,
as on direct review, ordering the prisoner's release invalidates
the judgment of conviction and renders ineffective the state rule
relied upon to sustain that judgment. Try as the majority does to
turn habeas corpus into a roving commission of inquiry into every
possible invasion of the applicant's civil rights that may ever
have occurred, it cannot divorce the writ from a judgment of
conviction if that judgment is the basis of the detention.
Thus, in the present case, if this Court had granted certiorari
to review the State's denial of
coram nobis, had
considered the coerced confession claim, and had ordered Noia's
release, the necessary effects of that disposition would have been
(1) to set aside the conviction, and (2) to invalidate application
of the New York rule requiring the claim to be raised on direct
appeal in order to be preserved. It is, I think, beyond dispute
that the Court does exactly the same thing by affirming the
decision below in this case. In doing so, the Court exceeds its
constitutional power if, in fact, the state ground relied upon to
sustain the judgment of conviction is an adequate one.
See
pp.
372 U. S.
472-476,
infra. The effect of the approach
adopted by the Court is, indeed, to do away with the adequate
Page 372 U. S. 470
state ground rule entirely in every state case, involving a
federal question, in which detention follows from a judgment.
The majority seems to recognize at least some of the
consequences of its decision when it attempts to fill the void
created by abolition of the adequate state ground rule in state
criminal cases. But the substitute it has fashioned -- that of
"conscious waiver" or "deliberate bypassing" of state procedures --
is, as I shall next try to show, wholly unsatisfactory.
III
ATTEMPTED PALLIATIVES
Apparently on the basis of a doctrine analogous to that of
"unclean hands," the Court states that a federal judge, in his
discretion, may deny relief on habeas corpus to one who has
understandingly and knowingly refused to avail himself of state
procedures. But such a test, if it is meant to constitute a
limitation on interference with state administration of criminal
justice, falls far short of the mark. In fact, as explained and
applied in this case, it amounts to no limitation at all.
First, the Court explains that the test is one calling
for the exercise of the district judge's discretion, that the judge
may, in other words, grant relief even when a conscious waiver has
been shown. Thus, the Court does not merely tell the States that,
if they wish to detain those whom they convict, they must revamp
their entire systems of criminal procedures so that no forfeiture
may be imposed in the absence of deliberate choice; the States are
also warned that even a deliberate, explicit, intelligent choice
not to assert a constitutional right may not preclude its assertion
on federal habeas.
Second, the Court states (as it must, if it is to
adhere to its definition) that " [a] choice made by counsel not
participated
Page 372 U. S. 471
in by the petitioner does not automatically bar relief."
Ante, p.
372 U. S. 439.
It is true that there are cases in which the adequacy of the state
ground necessarily turns on the question whether the defendant
himself expressly and intelligently waived a constitutional right.
Foremost among these are the cases involving right to counsel, for
the Court has made it clear that this right cannot be foregone
without deliberate choice by the defendant.
See Johnson v.
Zerbst, 304 U. S. 458;
Carnley v. Cochran, 369 U. S. 506. But
to carry this principle over in full force to cases in which a
defendant is represented by counsel not shown to be incompetent is
to undermine the entire representational system. We have manifested
an ever-increasing awareness of the fundamental importance of
representation by counsel,
see Gideon v. Wainwright, ante,
p.
372 U. S. 335, and
yet today the Court suggests that the State may no more have a rule
of forfeiture for one who is competently represented than for one
who is not. The effect on state procedural rules may be
disastrous.
Third, when it comes to apply the "waiver" test in this
case, the Court then, in effect, reads its own creation out of
existence. Recognizing that Noia himself decided not to appeal, and
that he apparently made this choice after consultation with
counsel, the Court states that his decision was nevertheless not a
"waiver." Since a new trial might have resulted in a death
sentence, Noia was, in the majority's view, confronted with a
"grisly choice," and he quite properly declined to play "Russian
roulette" by appealing his conviction.
Ante, pp.
372 U. S.
439-440.
Does the Court mean by these colorful phrases that it would be
unconstitutional for the State to impose a heavier sentence in a
second trial for the same offense? Apparently not, since the
majority assures us that there may be some cases in which a risk of
a heavier sentence must be run. What distinguishes this case, we
are told, is that the risk of the death sentence on a new trial
was
Page 372 U. S. 472
substantial in view of the trial judge's statement that Noia's
past record and his involvement in the crime almost led the judge
to disregard the jury's recommendation against a death
sentence.
What the Court seems to be saying in this exercise in fine
distinctions is that no waiver of a right can be effective if some
adverse consequence might reasonably be expected to follow from
exercise of that right. Under this approach, of course, there could
never be a binding waiver, since only an incompetent would give up
a right without any good reason, and an incompetent cannot make an
intelligent waiver. The Court wholly ignores the question whether
the choice made by the defendant is one that the State could
constitutionally require.
Looked at from any angle, the concept of waiver which the Court
has created must be found wanting. Of gravest importance, it
carries this Court into a sphere in which it has no proper place in
the context of the federal system. The true limitations on our
constitutional power are those inherent in the rule requiring that
a judgment resting on an adequate state ground must be
respected.
IV
ADEQUACY OF THE STATE GROUND HERE INVOLVED
It is the adequacy, or fairness, of the state ground that should
be the controlling question in this case. [
Footnote 3/26] This controlling question the Court does
not discuss.
New York asserts that a claim of the kind involved here must be
raised on timely appeal if it is to be preserved,
Page 372 U. S. 473
and contends that, in permitting an appeal, it has provided a
reasonable opportunity for the claim to be made. The collateral
post-conviction writ of
coram nobis, the State has said,
remains a remedy only for the calling up of facts unknown at the
time of the judgment.
See People v. Noia, decided
sub
nom. People v. Caminito, 3 N.Y.2d 596, 601, 148 N.E.2d 139,
143. In other words, the State claims that it may constitutionally
detain a man pursuant to a judgment of conviction, regardless of
any error that may have led to that conviction, if the relevant
facts were reasonably available and an appeal was not taken.
Under the circumstances here -- particularly the fact that Noia
was represented by counsel whose competence is not challenged -- is
this a reasonable ground for barring collateral assertion of the
federal claim? Certainly the State has a vital interest in
requiring that appeals be taken on the basis of facts known at the
time, since the first assertion of a claim many years later might
otherwise require release long after it was feasible to hold a new
trial. And although, in
Daniels v. Allen, it might have
been argued that the State's refusal to entertain an appeal
actually received on time amounted to an evasion of the federal
claim, no such argument can be made here, since no appeal was
ever sought.
Moreover, we should be slow to reject -- as an invalid barrier
to the raising of a federal right -- a state determination that one
forum, rather than another, must be resorted to for the assertion
of that right. A far more rigid restriction of federal forums was
upheld in
Yakus v. United States, 321 U.
S. 414. In that case, the Court sustained a federal
statute permitting an attack on the validity of an administrative
price regulation to be made only on timely review of the
administrative order, and precluding the defense of invalidity in a
later criminal prosecution
Page 372 U. S. 474
for violation of the regulation. What the Court there said bears
repetition here:
"No procedural principle is more familiar to this Court than
that a constitutional right may be forfeited in criminal, as well
as civil, cases by the failure to make timely assertion of the
right before a tribunal having jurisdiction to determine it."
321 U.S. at
321 U. S.
444.
But is there some special circumstance here that operates to
invalidate the nonfederal ground? Certainly it cannot be that the
claim of a coerced confession is of such a nature that a State is
constitutionally compelled to permit its assertion at any time even
if it could have been, but was not, raised on appeal. Many federal
decisions have held that a federal prisoner held pursuant to a
federal conviction may not assert such a claim in collateral
proceedings when it was not, but could have been, asserted on
appeal.
E.g., Davis v. United States, 214 F.2d 594,
cert. denied, 353 U.S. 960;
Smith v. United
States, 88 U.S.App.D.C. 80, 187 F.2d 192,
cert.
denied, 341 U.S. 927;
see Hodges v. United States,
108 U.S.App.D.C. 375, 282 F.2d 858,
cert. dismissed,
368 U. S. 139.
Is it then a basis for invalidating the nonfederal ground that
Noia's two codefendants are today free from custody on facts which
Noia says are identical to those in his case? Does the nonfederal
ground fall when the federal claim appears to have obvious merit?
There may be some question whether the facts in Noia's case and
those in Bonino's and Caminito's are identical, [
Footnote 3/27] but, assuming that they are, I
think it evident that the nonfederal ground must still stand.
Again, there is highly relevant precedent dealing with federal
prisoners. In
Sunal v. Large, 332 U.
S. 174, Sunal
Page 372 U. S. 475
and Kulick had been prosecuted for violation of the Selective
Service Act, and both had sought to raise a defense the court had
refused to consider. Both were conflicted and sentenced to
imprisonment, but took no appeal, quite evidently because such an
appeal would have been to no avail under the existing state of the
law. Subsequently, in another case, this Court held on comparable
facts that the defense in question must be permitted.
Estep v.
United States, 327 U. S. 114.
Sunal and Kulick then sought relief on habeas corpus, and this
relief was denied. The opinion of the Court observed that there had
been no barrier to the perfection of appeals by these prisoners,
and no facts which were not then known. That an appeal may have
appeared futile at the time (indeed, far more futile than was the
case here) was held not a sufficient basis for collateral relief.
The present case, I submit, would be less troublesome than
Sunal even had it involved a federal prisoner.
Surely, the state ground is not rendered inadequate because, on
a new trial for the same offense, Noia might have received the
death sentence. The State is well within constitutional limits in
permitting such a sentence to be imposed. Of particular relevance
here is the decision in
Larson v. United States, 275 F.2d
673. Two criminal defendants had been tried and sentenced to
imprisonment by a federal court. One defendant, Juelich, had moved
for a continuance or a change of venue on the ground of community
prejudice, and his motion had been denied. Both defendants were
convicted; Juelich appealed from his conviction, and the Court of
Appeals reversed,
Juelich v. United States, 214 F.2d 950,
holding that the constitutional requirement of a fair trial had
been violated by the refusal to grant a change of venue or a
continuance. Larson, the other defendant, had chosen not to appeal,
apparently because he feared that the death sentence
Page 372 U. S. 476
might be imposed in a new trial, but, after his codefendant's
success, he sought collateral relief under § 2255. That relief was
denied by the District Court, and the Court of Appeals affirmed,
stating:
"We do not say . . . that, in every instance, before resort can
be had to Section 2255, there must be an appeal. We say only that,
in the circumstances of this case, Larson, taking a calculated
risk, made a free choice not to jeopardize his life, and he is
bound by that decision. . . . Whatever errors there were in his
trial were known to Larson and to his counsel -- for the same
errors formed the basis for Juelich's appeal. Manifest justice to
an accused person requires only that he have an opportunity to
correct errors that may have led to an unfair trial. The orderly
administration of justice requires that even a criminal case some
day come to an end."
275 F.2d at 679-680. This Court denied certiorari. 363 U.S.
849.
Decisions such as
Sunal and
Larson are
reasoned expressions by the federal judiciary of its views on the
fair and proper administration of federal criminal justice. We
cannot turn around and tell the State of New York that it is
constitutionally prohibited from being governed by the same
considerations.
I recognize that Noia's predicament may well be thought one that
strongly calls for correction. But the proper course to that end
lies with the New York Governor's powers of executive clemency, not
with the federal courts. [
Footnote
3/28] Since Noia is detained pursuant to a state judgment whose
validity rests on an adequate and independent state ground, the
judgment below should be reversed.
[
Footnote 3/1]
For a broad range of views,
see the analytical
discussions of the development of federal habeas corpus
jurisdiction in Hart, Foreword, 73 Harv.L.Rev. 84; Reitz, Federal
Habeas Corpus: Impact of an Abortive State Proceeding, 74
Harv.L.Rev. 1315; Brennan, Federal Habeas Corpus and State
Prisoners: An Exercise in Federalism, 7 Utah L.Rev. 423, and Bator,
Finality in Criminal Law and Federal Habeas Corpus for State
Prisoners, 76 Harv.L.Rev. 441.
[
Footnote 3/2]
U.S.Const., Art. I, § 9, cl. 2.
[
Footnote 3/3]
Section 14 of the Judiciary Act of 1789, c. 20, 1 Stat. 73,
81-82.
[
Footnote 3/4]
The statutory development relating to review of criminal cases
by the Supreme Court is discussed in Bator,
supra,
372
U.S. 391fn3/1|>note 1, at 473, n. 75.
[
Footnote 3/5]
See also, e.g., Ex parte Jackson, 96 U. S.
727;
Ex parte Yarbrough, 110 U.
S. 651;
Minnesota v. Brundage, 180 U.
S. 499.
[
Footnote 3/6]
See also, e.g., Ex parte Wilson, 114 U.
S. 417;
In re Snow, 120 U.
S. 274;
In re Bonner, 151 U.
S. 242.
Compare Ex parte Bigelow, 113 U.
S. 328.
In addition, there were a few cases during this period in which
the Court rejected claims made in habeas corpus, apparently on
their merits, without clearly limiting itself to questions of
"jurisdiction."
See In re Converse, 137 U.
S. 624;
Felts v. Murphy, 201 U.
S. 123.
See also Bator,
supra,
372
U.S. 391fn3/1|>note 1, at 484. These cases were infrequent,
however, and must be considered as exceptions to the general rules
held to be applicable in this formative period.
[
Footnote 3/7]
The remarks of Congressman Lawrence quoted by the majority,
ante p.
372 U. S. 417,
were in response to a suggestion by Congressman LeBlond that the
bill would not cover certain civilians in military custody.
Cong.Globe, 39th Cong., 1st Sess. 4151.
See also id. at
4229.
[
Footnote 3/8]
H.R.Rep. No. 730, 48th Cong., 1st Sess. 5 (1884).
[
Footnote 3/9]
Frank v. State, 141 Ga. 243, 280 281, 80 S.E. 1016,
1032-1033.
[
Footnote 3/10]
See 237 U.S. at
237 U. S. 343.
The dissenting opinion, 237 U.S. at
237 U. S. 345,
237 U. S. 346,
did not take issue with this holding, but rather focused on the
allegations of mob domination.
[
Footnote 3/11]
Hicks v. State, 143 Ark. 158, 162, 220 S.W. 308,
310.
[
Footnote 3/12]
Compare Hart,
supra, 372
U.S. 391fn3/1|>note 1, at 105; Reitz,
supra,
372
U.S. 391fn3/1|>note 1, at 1328-1329; Bator,
supra,
372
U.S. 391fn3/1|>note 1, at 488-491.
[
Footnote 3/13]
It has been suggested that language in such cases as
White
v. Ragen, 324 U. S. 760,
324 U. S. 765,
and
House v. Mayo, 324 U. S. 42,
324 U. S. 48,
supports the result reached today by indicating that federal habeas
will lie when an adequate state ground bars direct review by this
Court.
See Brennan,
supra, 372
U.S. 391fn3/1|>note 1, at 431-432, n. 51; Reitz,
supra, 372
U.S. 391fn3/1|>note 1, at 135-1360. But these cases do not
stand for this proposition. In each of them, the state court
appeared to have denied that the particular post-conviction remedy
sought was available to redress a claim of federal right that could
not have been adequately asserted in the original trial. In each of
them, it remained possible that other state remedies might be open,
in which event it seemed clear that the particular denial of relief
rested on an adequate state ground. But if it was subsequently
determined -- either by further attempts to obtain state relief or
by proof in a Federal District Court -- that no state remedies of
any kind were ever available in the state courts, then federal
habeas would lie. For, "it is not simply a question of state
procedure," and there is no truly adequate state ground, "when a
state court of last resort closes the door to
any
consideration of a claim of denial of a federal right."
Young
v. Ragen, 337 U. S. 235,
337 U. S. 238;
cf. Ward v. Love County, 253 U. S. 17;
General Oil Co. v. Crain, 209 U.
S. 211. In other words, the proposition that cases such
as
White v. Ragen do stand for is that this Court will, as
a matter of sound judicial administration, accept what
appears
on its face to be an adequate state ground because the Federal
District Court remains open for more intensive consideration of the
petitioner's claim of inadequacy.
Cf. 28 U.S.C. §
2241(b).
[
Footnote 3/14]
A third case,
Speller v. Allen, was also reported at
the same time, but was not significantly different, for present
purposes, from
Brown v. Allen.
[
Footnote 3/15]
Brown v. Mississippi, 297 U. S. 278,
cited by the Court,
ante, p.
372 U. S. 414,
arose on direct review of a state conviction, and did not suggest
that a claim of a coerced confession, once determined by the state
courts, could be redetermined on federal habeas.
[
Footnote 3/16]
See 344 U.S. at
344 U. S. 486.
See also Mr. Justice Frankfurter's separate opinion, 344
U.S. at
344 U. S. 488,
344 U. S.
503.
[
Footnote 3/17]
"A failure to use a state's available remedy, in the absence of
some interference or incapacity . . . bars federal habeas corpus.
The statute requires that the applicant exhaust available state
remedies. To show that the time has passed for appeal is not enough
to empower the Federal District Court to issue the writ."
344 U.S. at
344 U.S.
487.
[
Footnote 3/18]
"[W]here the state action was based on an adequate state ground,
no further examination is required, unless no state remedy for the
deprivation of federal constitutional rights ever existed."
344 U.S. at
344 U. S.
458.
[
Footnote 3/19]
Analysis of the problem in terms of exhaustion of remedies no
longer available has been severely criticized. Hart,
supra, 372
U.S. 391fn3/1|>note 1, at 112-114. This "exhaustion"
approach is today quite properly interred.
Ante, pp.
372 U. S.
434-435.
[
Footnote 3/20]
See Michel v. Louisiana, 350 U. S.
91.
[
Footnote 3/21]
Lawrence v. State Tax Comm'n, 286 U.
S. 276,
286 U. S. 282.
See, e.g., Rogers v. Alabama, 192 U.
S. 226;
NAACP v. Alabama, 357 U.
S. 449.
See also Hart and Wechsler, The Federal
Courts and the Federal System, 501.
[
Footnote 3/22]
See Davis v. Wechsler, 263 U. S.
22;
New York Central R. Co. v. New York & Pa.
Co., 271 U. S. 124;
NAACP v. Alabama, supra. See also the discussion
in the dissenting opinion in
Williams v. Georgia,
349 U. S. 375,
349 U. S. 393,
349 U. S.
399.
[
Footnote 3/23]
In
Tyler v.
Maguire, 17 Wall. 253,
84 U. S. 293,
the Court issued a writ of possession and ordered its marshal to
execute it against the state defendant in possession.
[
Footnote 3/24]
The successive statutes are collected and set out in full in
Robertson and Kirkham, Jurisdiction of the Supreme Court of the
United States (Wolfson and Kurland ed.1951), Appendix A.
[
Footnote 3/25]
28 U.S.C. § 2106 authorizes the Court to vacate, as well as
reverse, affirm or modify, any judgment lawfully brought before it
for review. 28 U.S.C. § 1651(a) provides that the Court "may issue
all writs necessary or appropriate" in aid of its jurisdiction.
See also 28 U.S.C. § 2241(a), giving this Court specific
authority to issue writs of habeas corpus. Such writs are to be
executed, under 28 U.S.C. § 672, by the marshal of this Court, who
is authorized by 28 U.S.C. § 549, when acting within a State, to
"exercise the same powers which a sheriff of such state may
exercise in executing the laws thereof." The power to enter
judgment and, when necessary, to enforce it by appropriate process
has been said to be inherent in the Court's appellate jurisdiction.
Stanley v. Schwalby, 162 U. S. 255,
162 U. S.
279-282.
See also Hart and Wechsler,
supra, 372
U.S. 391fn3/21|>note 21, at 420-421.
[
Footnote 3/26]
In view of the concession by the State, I assume in this
discussion that Noia's confession was coerced. A confession, of
course, may be coerced and yet still be a wholly reliable admission
of guilt.
See Rogers v. Richmond, 365 U.
S. 534. Whether or not Noia was guilty of the crime of
felony murder, and whether the evidence of his guilt was accurate
and substantial, are matters irrelevant to the question of coercion
and also irrelevant here.
[
Footnote 3/27]
See People v. Noia, 4 App.Div.2d 698, 163 N.Y.S.2d
796.
[
Footnote 3/28]
At the oral argument, the State District Attorney advised us
that his office would support an application for clemency once the
case had been disposed of in this Court.