A state prisoner filed a habeas corpus petition in the Federal
District Court, alleging that the admission of certain evidence at
his trial was improper because the evidence had been seized
incident to an arrest based upon information from an unreliable
informant. The District Court ordered an evidentiary hearing and
the prisoner served on respondent a series of interrogatories
pursuant to Rule 33 of the Federal Rules of Civil Procedure
designed to establish the informant's unreliability. The District
Court overruled respondent's objections that there was no authority
for issuance of the interrogatories. Upon respondent's petition for
a writ of mandamus or prohibition the Court of Appeals vacated the
District Court's order authorizing the interrogatories, on the
grounds that Rule 81(a)(2) made the discovery procedures of the
Federal Rules of Civil Procedure inapplicable to habeas corpus
proceedings, and that the statutory provision for interrogatories
in habeas corpus proceedings (28 U.S.C. § 2246) did not authorize
their use for discovery. Rule 81(a)(2) at that time provided that
the Rules did not apply to habeas corpus proceedings
"except to the extent that the practice in such proceedings is
not set forth in statutes of the United States and has heretofore
conformed to the practice in actions at law or suits in
equity."
Held:
1. Federal courts upon an appropriate showing must grant
evidentiary hearings to petitioners for writs of habeas corpus and
"the power of inquiry on federal habeas corpus is plenary."
Townsend v. Sain, 372 U. S. 293,
372 U. S. 312
(1963). Pp.
394 U. S.
290-292.
2. The intended scope of the Federal Rules of Civil Procedure
and the history of habeas corpus procedure make it clear that Rule
81(a)(2) excludes the application of Rule 33 in habeas corpus
proceedings. Pp.
394 U. S.
292-298.
3. Section 2246 of 28 U.S.C. does not authorize interrogatories
in habeas corpus proceedings except in limited circumstances not
applicable to this case. Pp.
394 U. S. 290,
394 U. S.
296.
Page 394 U. S. 287
4. A district court considering a petition for habeas corpus is
free to use or authorize interrogatories or other suitable
discovery procedures reasonably fashioned to elicit facts to help
the court "dispose of the matter as law and justice require." 28
U.S.C. § 2243. Pp.
394 U. S. 290,
394 U. S.
298-300.
5. Since Congress has not specified comprehensive procedures for
securing the facts which federal courts must have to dispose of
habeas corpus petitions, the court may fashion appropriate
procedures for development of relevant facts, by analogy to
existing rules or judicial usages. Their authority to do so is
confirmed by the All Writs Act, 28 U.S.C. § 1651. Pp.
394 U. S.
298-300.
378 F.2d 141, reversed and remanded.
Page 394 U. S. 288
MR. JUSTICE FORTAS delivered the opinion of the Court.
This case presents the question whether state prisoners who have
commenced habeas corpus proceedings in a federal district court
may, in proper circumstances, utilize the instrument of
interrogatories for discovery purposes.
I
Petitioner is the Chief Judge of the United States District
Court for the Northern District of California. Respondent is the
warden of the California State Prison at an Quentin. The proceeding
was initiated by Alfred Walker who had been convicted in the
California courts of the crime of possession of marihuana. After
exhausting
Page 394 U. S. 289
state remedies, he filed a petition for habeas corpus in the
Federal District Court, alleging that evidence seized in the search
incident to his arrest was improperly admitted at his trial. The
basis for this claim was his allegation that the arrest and
incidental search were based solely on the statement of an
informant who, according to Walker's sworn statement, was not shown
to have been reliable; who, in fact, was unreliable, and whose
statements were accepted by the police without proper precautionary
procedures.
The District Court issued an order to show cause and respondent
made return. Thereafter, Walker filed a motion for an evidentiary
hearing, which the District Court granted. Two months later, Walker
served upon the respondent warden a series of interrogatories,
pursuant to Rule 33 of the Federal Rules of Civil Procedure,
seeking discovery of certain facts directed to proof of the
informant's unreliability. Respondent filed objections to the
interrogatories, alleging the absence of authority for their
issuance. The District Judge, without stating his reasons,
disallowed the objections and directed that the interrogatories be
answered. Respondent applied to the Court of Appeals for the Ninth
Circuit for a writ of mandamus or prohibition. The Ninth Circuit
vacated the order of the District Court. It held that the discovery
provisions of the Federal Rules of Civil Procedure were not
applicable to habeas corpus proceedings, and that 28 U.S.C. § 2246,
the statutory provision specifically relating to the use of
interrogatories in habeas corpus proceedings, did not authorize
their use for discovery.
Wilson v. Harris, 378 F.2d 141
(1967).
Because of the importance of the questions presented and the
diversity of views among the district and appellate courts that
have considered the problem, [
Footnote 1] we granted
Page 394 U. S. 290
certiorari.
392 U. S. 925. We
agree with the Ninth Circuit that Rule 33 of the Federal Rules of
Civil Procedure is not applicable to habeas corpus proceedings, and
that 28 U.S.C. § 2246 does not authorize interrogatories except in
limited circumstances not applicable to this case; but we conclude
that, in appropriate circumstances, a district court, confronted by
a petition for habeas corpus which establishes a
prima
facie case for relief, may use or authorize the use of
suitable discovery procedures, including interrogatories,
reasonably fashioned to elicit facts necessary to help the court to
"dispose of the matter as law and justice require." 28 U.S.C. §
2243. Accordingly, we reverse and remand the case in order that the
District Court may reconsider the matter before it in light of our
opinion and judgment.
II
The writ of habeas corpus is the fundamental instrument for
safeguarding individual freedom against arbitrary
Page 394 U. S. 291
and lawless state action. Its preeminent role is recognized by
the admonition in the Constitution that: "The Privilege of the Writ
of Habeas Corpus shall not be suspended. . . ." U.S.Const., Art. I,
§ 9, cl. 2. The scope and flexibility of the writ -- its capacity
to reach all manner of illegal detention -- its ability to cut
through barriers of form and procedural mazes -- have always been
emphasized and jealously guarded by courts and lawmakers. The very
nature of the writ demands that it be administered with the
initiative and flexibility essential to insure that miscarriages of
justice within its reach are surfaced and corrected.
As Blackstone phrased it, habeas corpus is "the great and
efficacious writ, in all manner of illegal confinement." [
Footnote 2] As this Court said in
Fay v. Noia, 372 U. S. 391,
372 U. S.
401-402 (1963), the office of the writ is "to provide a
prompt and efficacious remedy for whatever society deems to be
intolerable restraints."
See Peyton v. Rowe, 391 U. S.
54,
391 U. S. 65-67
(1968).
It is now established beyond the reach of reasonable dispute
that the federal courts not only may grant evidentiary hearings to
applicants, but must do so upon an appropriate showing.
Townsend v. Sain, 372 U. S. 293,
372 U. S. 313
(1963);
Brown v. Allen, 344 U. S. 443,
344 U. S. 464,
n.19 (1953). And this Court has emphasized, taking into account the
office of the writ and the fact that the petitioner, being in
custody, is usually handicapped in developing the evidence needed
to support in necessary detail the facts alleged in his petition,
that a habeas
Page 394 U. S. 292
corpus proceeding must not be allowed to founder in a
"procedural morass."
Price v. Johnston, 334 U.
S. 266,
334 U. S. 269
(1948).
There is no higher duty of a court, under our constitutional
system, than the careful processing and adjudication of petitions
for writs of habeas corpus for it is in such proceedings that a
person in custody charges that error, neglect, or evil purpose has
resulted in his unlawful confinement and that he is deprived of his
freedom contrary to law. This Court has insistently said that the
power of the federal courts to conduct inquiry in habeas corpus is
equal to the responsibility which the writ involves:
"The language of Congress, the history of the writ, the
decisions of this Court, all make clear that the power of inquiry
on federal habeas corpus is plenary."
Townsend v. Sain, supra at
372 U. S.
312.
In the present case, we are confronted with a procedural problem
which tests the reality of these great principles. We are asked by
Walker to establish the existence of rights for those in custody to
discover facts which may aid their petitions for release. We are
asked to do this by declaring that the provisions of the Federal
Rules of Civil Procedure granting such rights to litigants in civil
causes are available to Walker; or if we refuse so to conclude, to
affirm the existence of power in the District Court to authorize
discovery by written interrogatories. We address ourselves to those
issues.
III
Rule 1 of the Federal Rules of Civil Procedure provides that:
"These rules govern the procedure in the United States district
courts in all suits of a civil nature . . . with the exceptions
stated in Rule 81." At the time of the decision below Rule 81(a)(2)
provided, in relevant part, that the Rules were not applicable in
habeas corpus
"except to the extent that the practice in
Page 394 U. S. 293
such proceedings is not set forth in statutes of the United
States, and has heretofore conformed to the practice in actions at
law or suits in equity. [
Footnote
3]"
The Court of Appeals for the Ninth Circuit held that the second
requirement -- "conformity" with practice -- made it necessary to
show that,
"prior to September 16, 1938, discovery was actually being used
in habeas proceedings, and that such use conformed to the then
discovery practice in actions at law or suits in equity."
378 F.2d at 144. No such showing was made, and it is not here
contended that it can be made. Walker contends, however, that the
rule requires only a showing that habeas proceedings conformed
generally to preexisting practice in law and equity, and he
contends that this general requirement is met.
We need not consider this contention that the Court of Appeals
took an unnecessarily restricted view of the thrust of the
"conformity" requirement, because, for other reasons, we conclude
that the intended scope of the Federal Rules of Civil Procedure and
the history of habeas corpus procedure make it clear that Rule
81(a)(2) must be read to exclude the application of Rule 33 in
habeas corpus proceedings.
It is, of course, true that habeas corpus proceedings are
characterized as "civil."
See, e.g., Fisher v. Baker,
203 U. S. 174,
203 U. S. 181
(1906). But the label is gross and
Page 394 U. S. 294
inexact. [
Footnote 4]
Essentially, the proceeding is unique. Habeas corpus practice in
the federal courts has conformed with civil practice only in a
general sense. There is no indication that with respect to pretrial
proceedings for the development of evidence, habeas corpus practice
had conformed to the practice at law or in equity "to the extent"
that the application of rules newly developed in 1938 to govern
discovery in "civil" cases should apply in order to avoid a
divergence in practice which had theretofore been substantially
uniform. Although there is little direct evidence, relevant to the
present problem, of the purpose of the "conformity" provision of
Rule 81(a)(2), the concern of the draftsmen, as a general matter,
seems to have been to provide for the continuing applicability of
the "civil" rules in their new form to those areas of practice in
habeas corpus and other enumerated proceedings in which the
"specified" proceedings had theretofore utilized the modes of civil
practice. Otherwise, those proceedings were to be considered
outside of the scope of the rules without prejudice, of course, to
the use of particular rules by analogy or otherwise, where
appropriate. [
Footnote 5]
Page 394 U. S. 295
Such specific evidence as there is with respect to the intent of
the draftsmen of the rules indicates nothing more than a general
and nonspecific understanding that the rules would have very
limited application to habeas corpus proceedings. At the very
least, it is clear that there was no intention to extend to habeas
corpus, as a matter of right, the broad discovery provisions which,
even in ordinary civil litigation, were "one of the most
significant innovations" of the new rules.
Hickman v.
Taylor, 329 U. S. 495,
329 U. S. 500
(1947). Walker does not claim that there was any general discovery
practice in habeas corpus proceedings prior to adoption of the
Federal Rules of Civil Procedure.
In considering the intended application of the new rules to
habeas corpus, it is illuminating to note that, in 1938 the
expansion of federal habeas corpus to its present scope was only in
its early stages.
Mooney v. Holohan, 294 U.
S. 103 (1935);
Johnson v. Zerbst, 304 U.
S. 458 (1938);
Waley v. Johnston, 316 U.
S. 101 (1942). It was not until many years later that
the federal courts considering a habeas corpus petition were held
to be required in many cases to make an independent determination
of the factual basis of claims that state convictions had violated
the petitioner's federal constitutional rights.
Brown v.
Allen, 344 U. S. 443
(1953);
Townsend v. Sain, 372 U.
S. 293 (1963). In these circumstances, it is readily
understandable that, as indicated by the language and the scanty
contemporary exegesis of Rule 81(a)(2) which is available, the
draftsmen
Page 394 U. S. 296
of the rule did not contemplate that the discovery provisions of
the rules would be applicable to habeas corpus proceedings.
It is also of some relevance that, in 1948, when Congress
enacted 28 U.S.C. § 2246 expressly referring to the right of
parties in habeas corpus proceedings to propound written
interrogatories, its legislation was limited to interrogatories for
the purpose of obtaining evidence from affiants where affidavits
were admitted in evidence. Again, the restricted scope of this
legislation indicates that the adoption in 1938 of the Federal
Rules of Civil Procedure was not intended to make available in
habeas corpus proceedings the discovery provisions of those
rules.
Indeed, it is difficult to believe that the draftsmen of the
Rules or Congress would have applied the discovery rules without
modification to habeas corpus proceedings because their specific
provisions are ill-suited to the special problems and character of
such proceedings. For example, Rule 33, which Walker here invoked,
provides for written interrogatories to be served by any party upon
any "adverse party." As the present case illustrates, this would
usually mean that the prisoner's interrogatories must be directed
to the warden, although the warden would be unable to answer from
personal knowledge questions relating to petitioner's arrest and
trial. Presumably, the warden could solicit answers from the
appropriate officials and reply "under oath," as the rule requires;
but the warden is clearly not the kind of "adverse party"
contemplated by the discovery rules, and the result of their
literal application would be to invoke a procedure which is
circuitous, burdensome, and time consuming.
The scope of interrogatories which may be served under Rule 33
also indicates the unsuitability of applying to habeas corpus
provisions which were drafted without reference to its peculiar
problems.
Page 394 U. S. 297
By reference to Rule 26(b), the rule would give the prisoner a
right to inquire into "any matter, not privileged, which is
relevant to the subject matter involved in the pending action,"
whether admissible at trial or not. This rule has been generously
construed to provide a great deal of latitude for discovery.
See Hickman v. Taylor, supra, at
329 U. S. 507;
2A Barron & Holtzoff,
supra, § 646. Such a
broad-ranging preliminary inquiry is neither necessary nor
appropriate in the context of a habeas corpus proceeding.
Except for interrogatories to be served by the "plaintiff"
within 10 days after the commencement of "the action," Rule 33
provides that the interrogatories may be served without leave of
court. The "adverse party" must then take the initiative to contest
the interrogatories and a hearing in court on his objections is
required. Unavoidably, unless there is a measure of responsibility
in the originator of the proceeding, the "plaintiff" or petitioner,
this procedure can be exceedingly burdensome and vexatious. The
interrogatory procedure would be available to the prisoners
themselves since most habeas petitions are prepared and filed by
prisoners, generally without the guidance or restraint of members
of the bar. For this reason, too, we conclude that the literal
application of Rule 33 to habeas corpus proceedings would do
violence to the efficient and effective administration of the Great
Writ. The burden upon courts, prison officials, prosecutors, and
police, which is necessarily and properly incident to the
processing and adjudication of habeas corpus proceedings, would be
vastly increased, and the benefit to prisoners would be
counterbalanced by the delay which the elaborate discovery
procedures would necessarily entail.
It is true that the availability of Rule 33 would provide
prisoners with an instrument of discovery which could be activated
on their own initiative, without prior
Page 394 U. S. 298
court approval, and that this would be of considerable tactical
advantage to them in the prosecution of their efforts to
demonstrate such error in their trial as would result in their
release. But despite the forceful and ingenious argument of
Walker's counsel and
amici curiae, [
Footnote 6] this consideration cannot carry the
day. It is a long march from this contention to a conclusion that
the discovery provisions of the Federal Rules of Civil Procedure
were intended to extend to habeas corpus proceedings. We have no
power to rewrite the Rules by judicial interpretations. We have no
power to decide that Rule 33 applies to habeas corpus proceedings
unless, on conventional principles of statutory construction, we
can properly conclude that the literal language or the intended
effect of the Rules indicates that this was within the purpose of
the draftsmen or the congressional understanding.
IV
To conclude that the Federal Rules' discovery provisions do not
apply completely and automatically by virtue of Rule 81(a)(2) is
not to say that there is no way in which a district court may, in
an appropriate case, arrange for procedures which will allow
development, for purposes of the hearing, of the facts relevant to
disposition of a habeas corpus petition. Petitioners in habeas
corpus proceedings, as the Congress and this Court have emphasized,
and as we have discussed,
supra, at
394 U. S.
290-292, are entitled to careful consideration and
plenary processing of their claims including full opportunity for
presentation of the relevant facts. Congress has provided that,
once a petition for a writ of habeas corpus is filed, unless
Page 394 U. S. 299
the court is of the opinion that the petitioner is not entitled
to an order to show cause, the writ must be awarded "forthwith," or
an order to show cause must be issued. 28 U.S.C. § 2243.
Thereafter, if the court concludes that the petitioner is entitled
to an evidentiary hearing,
cf. Townsend v. Sain, supra; 28
U.S.C. § 2254, it shall order one to be held promptly. 28 U.S.C. §
2243.
Flexible provision is made for taking evidence by oral
testimony, by deposition, or upon affidavit and written
interrogatory. 28 U.S.C. § 2246.
Cf. §§ 2245, 2254(e). The
court shall "summarily hear and determine the facts, and dispose of
the matter as law and justice require." 28 U.S.C. § 2243. But with
respect to methods for securing facts where necessary to accomplish
the objective of the proceedings Congress has been largely silent.
Clearly, in these circumstances, the habeas corpus jurisdiction and
the duty to exercise it being present, the courts may fashion
appropriate modes of procedure, by analogy to existing rules or
otherwise in conformity with judicial usage. Where their duties
require it, this is the inescapable obligation of the courts. Their
authority is expressly confirmed in the All Writs Act, 28 U.S.C. §
1651. This statute has served since its inclusion, in substance, in
the original Judiciary Act as a "legislatively approved source of
procedural instruments designed to achieve
the rational ends of
law.'" Price v. Johnston, 334 U.
S. 266, 334 U. S. 282
(1948), quoting Adams v. United States ex rel. McCann,
317 U. S. 269,
317 U. S. 273
(1942). It has been recognized that the courts may rely upon this
statute in issuing orders appropriate to assist them in conducting
factual inquiries. American Lithographic Co. v.
Werckmeister, 221 U. S. 603,
221 U. S. 609
(1911) (subpoenas duces tecum); Bethlehem Shipbuilding
Corp. v. NLRB, 120 F.2d 126, 127 (C.A. 1st Cir. 1941) (order
that certain documents be produced for the purpose of pretrial
discovery). In Price v. Johnston, supra, this Court
held
Page 394 U. S. 300
explicitly that the purpose and function of the All Writs Act to
supply the courts with the instruments needed to perform their
duty, as prescribed by the Congress and the Constitution, provided
only that such instruments are "agreeable" to the usages and
principles of law, extend to habeas corpus proceedings.
At any time in the proceedings, when the court considers that it
is necessary to do so in order that a fair and meaningful
evidentiary hearing may be held so that the court may properly
"dispose of the matter as law and justice require," either on its
own motion or upon cause shown by the petitioner, it may issue such
writs and take or authorize such proceedings with respect to
development, before or in conjunction with the hearing of the facts
relevant to the claims advanced by the parties, as may be
"necessary or appropriate in aid of [its jurisdiction] . . . and
agreeable to the usages and principles of law." 28 U.S.C. §
1651.
We do not assume that courts, in the exercise of their
discretion, will pursue or authorize pursuit of all allegations
presented to them. We are aware that confinement sometimes induces
fantasy which has its basis in the paranoia of prison, rather than
in fact. But where specific allegations before the court show
reason to believe that the petitioner may, if the facts are fully
developed, be able to demonstrate that he is confined illegally and
is therefore entitled to relief, it is the duty of the court to
provide the necessary facilities and procedures for an adequate
inquiry. Obviously, in exercising this power, the court may utilize
familiar procedures, as appropriate, whether these are found in the
civil or criminal rules or elsewhere in the "usages and principles
of law." [
Footnote 7]
Page 394 U. S. 301
Accordingly, we reverse the judgment of the Court of Appeals for
the Ninth Circuit and remand the case for further proceedings in
accordance with this opinion.
Reversed and remanded.
[
Footnote 1]
Some courts have joined the Ninth Circuit in holding the
discovery provisions of the Federal Rules wholly inapplicable to
habeas corpus proceedings.
E.g., Sullivan v. United
States, 198 F.
Supp. 624, 625-627 (D.C.S.D.N.Y.1961). On other occasions, it
has been held that the Rules apply only by "analogy."
Wilson v.
Weigel, 387 F.2d 632, 634, n. 3 (C.A. 9th Cir.1967);
cf.
United States ex rel. Jelic v. District Director of
Immigration, 106 F.2d 14, 20 (C.A.2d Cir.1939) (opinion by
Judge Clark, who served as Reporter of the Advisory Committee on
the Federal Rules of Civil Procedure). Several courts have held the
Rules applicable because habeas is characterized generally as a
"civil" proceeding.
E.g., United States ex rel. Seals v.
Wiman, 304 F.2d 53, 64 (C.A. 5th Cir. 1962);
cf.
Schiebelhut v. United States, 318 F.2d 785, 786 (C.A. 6th Cir.
1963) (28 U.S.C. § 2255 action). Some courts have sustained the use
of particular discovery rules under the Federal Rules of Civil
Procedure as necessary to effectuate statutory policy with respect
to habeas corpus.
E.g., Knowles v. Gladden, 254 F. Supp.
643, 644-645 (D.C. Ore.1965),
aff'd, 378 F.2d 761 (C.A.
9th Cir.1967). Others have apparently assumed that the rules
applied to habeas without discussion of the question.
E.g.,
Fortner v. Balkcom, 380 F.2d 816, 818 (C.A. 5th Cir.1967).
[
Footnote 2]
W. Blackstone, Commentaries *131 (Lewis ed.1902).
See
generally Fay v. Noia, 372 U. S. 391,
399-415 (1963).
Cf. Frank v. Mangum, 237 U.
S. 309,
237 U. S. 346
(Holmes, J., joined by Hughes, J., dissenting) (1915),
"[H]abeas corpus cuts through all forms and goes to the very
tissue of the structure. It comes in from the outside . . . , and,
although every form may have been preserved, opens the inquiry
whether they have been more than an empty shell."
[
Footnote 3]
Rule 81(a)(2) was amended, effective July 1, 1968, to read,
"These rules are applicable to proceedings for . . . habeas
corpus . . . to the extent that the practice in such proceedings is
not set forth in statutes of the United States and has heretofore
conformed to the practice in civil actions."
The amendment merely eliminated references to appellate
procedure made inappropriate by the adoption of the Federal Rules
of Appellate Procedure and does not affect the issue before us.
See Report of the Committee on Rules of Practice and
Procedure of the Judicial Conference of the United States, 43
F.R.D. 61, 164 (explanatory note to the proposed revision of Rule
81(a)(2)).
[
Footnote 4]
The degree to which this characterization excessively simplifies
a complex history is discussed in Cohen, Some Considerations on the
Origins of Habeas Corpus, 16 Can.B.Rev. 92 (1938), and Cohen,
Habeas Corpus Cum Causa -- The Emergence of the Modern Writ, 18
Can.B.Rev. 10, 172 (1940).
Cf. Sullivan v. United
States, 198 F.
Supp. 624 (D.C.S.D.N.Y.1961).
[
Footnote 5]
The federal courts have applied some noncontroversial rules in
habeas corpus proceedings.
E.g., Rule 6(b)(2), extension
of time for excusable neglect,
Bowen v.
Boles, 258 F.
Supp. 111 (D.C.N.D. W.Va.1966); Rule 15(b), determination of
issue not raised by pleadings,
Hamilton v.
Hunter, 65 F. Supp.
319 (D.C. Kan.1946).
See also 1 W. Barron & A.
Holtzoff, Federal Practice and Procedure § 131 (C. Wright ed.1960);
Note, Civil Discovery in Habeas Corpus, 67 Col.L.Rev. 1296, 1299
(1967). The applicability to habeas corpus of the rules concerning
joinder and class actions has engendered considerable debate.
See Mitchell v. Schoonfield, 285 F.
Supp. 728 (D.C. Md.1968);
Hill v.
Nelson, 272 F.
Supp. 790 (D.C.N.D. Calif.1967);
Adderly v.
Wainwright, 272 F.
Supp. 530 (D.C.M.D. Fla.1967).
Cf. Note, Multiparty
Federal Habeas Corpus, 81 Harv.L.Rev. 1482 (1968). The only issue
before the Court in this case is the applicability to habeas corpus
proceedings of those rules which deal with discovery. We intimate
no view on whether the Federal Rules may be applicable with respect
to other aspects of a habeas corpus proceeding.
[
Footnote 6]
In our consideration of this case, we have been assisted greatly
by the briefs of the
amici curiae -- the NAACP Legal
Defense and Educational Fund and the National Office for the Rights
of the Indigent in support of petitioner, and the United States and
the State of New York in support of respondent.
[
Footnote 7]
MR. JUSTICE HARLAN, dissenting, agrees that district courts have
power to require discovery when essential to render a habeas corpus
proceeding effective. He dissents because he would substitute the
judgment of this remote Court for that of the District Court as to
the need for authorizing discovery in this case. MR. JUSTICE HARLAN
then expresses his views as to the desirability of formulating
discovery rules under 28 U.S.C. § 2072, applicable to federal
habeas and § 2255 proceedings. In our view, the desirability of
launching rulemaking proceedings does not and could not affect the
decision in the present case.
In view of his remarks, however, we have concluded that we
should express agreement with our Brother HARLAN as to the
desirability of rulemaking in this field. We repeat that it does
not follow from this that district judges are without power to
enter necessary orders in the absence of rules.
In fact, it is our view that the rulemaking machinery should be
invoked to formulate rules of practice with respect to federal
habeas corpus and § 2255 proceedings, on a comprehensive basis, and
not merely one confined to discovery. The problems presented by
these proceedings are materially different from those dealt with in
the Federal Rules of Civil Procedure and the Federal Rules of
Criminal Procedure, and reliance upon usage and the opaque language
of Civil Rule 81(a)(2) is transparently inadequate. In our view,
the results of a meticulous formulation and adoption of special
rules for federal habeas corpus and § 2255 proceedings would
promise much benefit.
MR. JUSTICE BLACK, dissenting.
I would affirm the Court of Appeals' holding in this case,
Wilson v. Harris, 378 F.2d 141, that 28 U.S.C. 2246 does
not authorize discovery in habeas corpus proceedings. Upon
affirmance, I would not go further and write what appears to me to
be, in effect, an advisory opinion directing the trial court to
formulate some kind of new legal system for discovery in this kind
of case. Fully agreeing with the Court's statement that "[w]e have
no power to rewrite the Rules by judicial interpretations," I go
further and doubt that we have power to
Page 394 U. S. 302
direct lower courts to write new laws providing for discovery in
habeas corpus cases. This is a complicated field of lawmaking, and
I think we should not enter this field in the absence of some valid
delegation of legislative power by the Congress. Since I cannot
agree that Congress has granted us such power, I am unable to go
along with the Court's opinion.
There have been many complaints among members of the bar about
many Court-made rules of procedure, and I would venture the
suggestion that in no field have the number of those complaints
exceeded the complaints in this particular field of discovery. I
regret that I cannot "assume," with the Court, that, given blanket
authority, "courts, in the exercise of their discretion, will [not]
pursue or authorize pursuit of all allegations presented to them."
This case makes me skeptical about such an assumption. Here, Walker
was convicted in a state court of having marihuana in his
possession. After exhausting all state remedies, he asked the
federal courts to let him out of jail. He apparently did not allege
his innocence, does not now do so, and this Court apparently does
not now consider the question of guilt or innocence in this case.
What he does allege is that the trial court made an error in
admitting certain evidence against him. It is not alleged that the
evidence was not relevant against him or that the verdict resting
on that evidence was not a truthful, honest verdict. We must,
therefore, assume that he was and is guilty of the crime of which
he was convicted.
See my dissent in
Kaufman v. United
States, ante p
394 U. S. 231,
decided today. What is relevant, however, and all that is alleged,
is that the evidence used against him, presumably the marihuana,
was found on his premises as the result of a search made after a
statement by a person to a policeman, which statement the
allegations now charge "was not shown to have been reliable" and
which was
Page 394 U. S. 303
made by a person "who was in fact, unreliable." It may be
possible that a new trial over this issue can establish that the
person telling the officer that marihuana could be found on
Walker's premises was an "unreliable" person, and that the
statement he made was also "unreliable." But the fact remains that
the marihuana was found where the unreliable person's unreliable
statement told the officer it would be found. Consequently it
appears to me that the present case against a defendant whose guilt
has been proved to a jury beyond a reasonable doubt should not be
taken as an appropriate one on which this Court lays the groundwork
for a new and vast judicial legislative rulemaking program.
Perhaps it might not be considered amiss mildly to suggest that,
in cases like this, where records contain no question at all about
guilt, some convictions should at some time be treated as final,
and no longer subject to challenge, at least by collateral attack.
Although I admit that
Aguilar v. Texas, 378 U.
S. 108 (1964),
Spinelli v. United States,
393 U. S. 410
(1969), and other recent cases go a long way, I had not previously
thought that even these cases could support what the Court is doing
in this case.
MR. JUSTICE HARLAN, whom MR. JUSTICE WHITE joins,
dissenting.
I agree that neither Rule 33 of the Federal Rules of Civil
Procedure nor any statute authorizes the interrogatories sought in
this case. I further agree that district courts do have power to
require discovery when essential to render a habeas corpus
proceeding effective. But I would make it explicit that such power
is narrow, and should be exercised sparingly, and would not set the
district courts "at large," as I fear today's opinion may be taken
to do.
Page 394 U. S. 304
I
This case furnishes an apt illustration of he differences
between my viewpoint and what seems to be that of the majority. As
stated more fully in the Court's opinion,
ante at
394 U. S.
288-28, Walker claimed that marihuana admitted at his
trial was seized incident to an arrest which was based upon
information supplied by an unreliable informant. After the District
Court had ordered an evidentiary hearing, Walker directed to the
respondent warden a series of interrogatories designed to establish
the unreliability of the informant. The interrogatories asked
whether the officer who arrested Walker had made previous arrests
or searches on the basis of information given by the same
informant; if so, whether such arrests or searches resulted in
convictions, and whether the informant had ever supplied
information which the officer considered unreliable.
It seems apparent that this discovery was not essential to an
adequate habeas proceeding. All of the information sought was known
to the arresting officer. Walker knew the officer's identity; in
fact, the officer had testified at the preliminary hearing and at
trial on the very issue of the informant's reliability. Hence,
there is no reason to believe that all of the information could not
have been obtained by calling the officer as a witness at the
habeas hearing. Although I realize that the parties have not
directed their arguments to this precise question, I am satisfied
that, on the face of things, Walker cannot possibly show that this
discovery is essential to a fair proceeding. Accordingly, I would
affirm outright the judgment of the Court of Appeals. [
Footnote 2/1]
Page 394 U. S. 305
II
The more troublesome aspect of the Court's opinion is its
long-run implications. For it can be taken as suggesting that the
best solution to the problem of discovery in habeas corpus
proceedings is to permit each district court to devise "appropriate
modes of procedure" on a case-by-case basis. As regards the
immediate future, a case-by-case approach may be unavoidable, since
there is at present no body of applicable discovery rules, and the
district courts must have power to order discovery which is
essential to effective disposition of habeas applications. But I
consider that, from a broader standpoint, the problem of habeas
discovery should be dealt with not case by case, but through
exercise of our rulemaking power.
See 28 U.S.C. §
2072.
There are several reasons for believing that a case-by-case
approach will be unsatisfactory in the long range. It seems to me
that, in fairness both to habeas petitioners and to their
adversaries, the discovery procedures which are available in such
actions should be uniform throughout the federal system, and not
dependent upon the varying
Page 394 U. S. 306
"discovery attitudes" of particular district judges. If
discovery procedures are developed case by case, there will at the
least be a very long period during which procedures will differ
from district to district. Even assuming that a coherent body of
rules finally will emerge because of the unifying influence of
appellate decisions, it is unlikely that the rules thus generated
will be the best that could have been devised. Appellate courts,
including this one, are imperfectly informed both about the extent
of the need for additional discovery in habeas corpus and about the
procedures best suited to meet those needs and to achieve prompt
dispatch of habeas proceedings. They are, therefore, poorly
situated to lay down guidelines for the district courts. Moreover,
discovery rules fashioned in the course of day-to-day adjudication
are likely to suffer from the limitations which accompany that
process.
Such considerations lead me to think that, in the longer view,
the formulation of discovery rules can best be accomplished through
use of the power which Congress has conferred upon us to establish
general rules governing civil procedure in the federal district
courts. By using this method of rulemaking, the advice of the
Judicial Conference of the United States and its appropriate
advisory committees could be obtained. [
Footnote 2/2] These bodies are well equipped to assess
the dimensions of the discovery problem and devise apt solutions.
Their deliberations would be free from the time pressures and
piecemeal character of case-by-case adjudication. And the resulting
rules would be uniform throughout the federal system.
Page 394 U. S. 307
My conviction that this would be the best course is strengthened
by recollection of our decision in
Miner v. Atlass,
363 U. S. 641
(1960), and the events which followed. In
Miner, we held
that a District Court sitting in admiralty had no power to order
the taking of an oral discovery deposition. Responding to a
suggestion in our opinion,
see 363 U.S. at
363 U. S. 651,
and to earlier stirrings at the bar, the Judicial Conference and
the Advisory Committee on General Admiralty Rules swiftly proposed
new Admiralty Rules authorizing certain additional kinds of
discovery, including oral depositions. After approval by this Court
and submission to Congress, as required by statute, [
Footnote 2/3] the new Admiralty Rules went
into effect a little more than a year after our decision. [
Footnote 2/4] There is no reason to think
that the Judicial Conference and the advisory committees would not
be equally cooperative in this instance.
For the reasons stated in Part I of this opinion, I would affirm
the judgment of the Court of Appeals in this case.
[
Footnote 2/1]
My Brother STEWART bases his dissent in this case upon my own
dissenting opinion in
Kaufman v. United States, ante, p.
394 U. S. 242,
in which I have taken the position that, in actions brought by
federal prisoners under 28 U.S.C. § 2255, Fourth Amendment claims
should be entertained only upon a showing of "special
circumstances." I prefer to rest my disagreement with the result in
this case upon other grounds, for two reasons. First, this case is
not on all fours with
Kaufman, since this was a federal
habeas action by a state prisoner, rather than an action by a
federal prisoner under § 2255. The
Kaufman question has
not been briefed or argued in this case, and there may conceivably
be significant distinctions between the two types of proceedings.
See, e.g., Amsterdam, Search, Seizure, and Section 2255: A
Comment, 112 U.Pa.L.Rev. 378 (1964). Second, although this case
happens, like
Kaufman, to involve a search and seizure
issue, the Court's reasoning here plainly applies to all claims
cognizable on federal habeas corpus. Hence, it seems appropriate to
rest my dissent upon broader grounds, which also appeal to my
Brother WHITE.
[
Footnote 2/2]
For a brief account of the role played by these bodies in the
making of civil rules,
see Kaplan, Continuing Work of the
Civil Committee:1966 Amendments of the Federal Rules of Civil
Procedure(1), 81 Harv.L.Rev. 356, 357-358 (1967).
[
Footnote 2/3]
See 28 U.S.C. § 2072, which also specifies that the
proposed rules shall not take effect for 90 days after they have
been reported to Congress.
[
Footnote 2/4]
See Admiralty Rules 30A-30G, 32, 32B-32D, which were
either added or amended effective July 19, 1961.
MR. JUSTICE STEWART, dissenting.
I concur with most of what is said in the Court's opinion, but
cannot concur in its judgment.
I wholly agree that Rule 33 is inapplicable to habeas corpus
proceedings. Contrary to my Brother HARLAN, I further agree that
federal judges in carrying out their duty to dispose of habeas
corpus applications "as law and justice require," 28 U.S.C. § 2243,
should not be inhibited by inflexibly formalized procedural rules.
In getting at the facts in such cases, the district courts
Page 394 U. S. 308
should be given wide leeway for "discretion to exercise their
common sense."
Machibroda v. United States, 368 U.
S. 487,
368 U. S. 495.
*
However, for the reasons stated in MR. JUSTICE HARLAN's
dissenting opinion today in
Kaufman v. United States,
ante, p.
394 U. S. 242,
which I have joined, I would affirm the judgment in the present
case.
* The
Machibroda case arose under 28 U.S.C. § 2255, the
statutory counterpart of habeas corpus. In the circumstances there
presented, we pointed out that
"many of the material allegations can either be corroborated or
disproved by the visitors' records of the county jail where the
petitioner was confined, the mail records of the penitentiary to
which he was sent, and other such sources."
368 U.S. at
368 U. S.
495.