A grand jury returned a murder indictment against a named
individual "and John Doe, the true name and a more particular
description of the said John Doe being to the said Jurors unknown."
After respondent's arrest the indictment was amended pursuant to
state law to substitute respondent's name for "John Doe." The
highest state court affirmed respondent's subsequent conviction,
rejecting his challenge to the legality of the indictment made on
the ground that the amending procedure did not comply with the
statute. Respondent subsequently filed a petition for a writ of
habeas corpus in the District Court, which dismissed the petition.
The Court of Appeals reversed, holding that the procedure by which
respondent was brought to trial was violative of equal protection.
The court rejected petitioner's contention that respondent, who had
not previously raised the equal protection issue, had not exhausted
available state judicial remedies as required by 28 U.S.C. § 2254,
holding that respondent had presented the state court with "an
opportunity to apply controlling legal principles to the facts
bearing upon [his] constitutional claim."
Held: The substance of a federal habeas corpus claim
must in the first instance be fairly presented to the state courts,
and since, on the record and argument before it, the State's
highest court had no fair opportunity to consider and act upon the
equal protection claim, the Court of Appeals erred in holding that
respondent had exhausted his state remedies. Pp.
404 U. S.
275-278.
434 F.2d 673, reversed and remanded.
BRENNAN, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, MARSHALL, and BLACKMUN, JJ.,
joined. DOUGLAS, J., filed a dissenting opinion,
post, p.
404 U. S.
278.
Page 404 U. S. 271
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The Court of Appeals for the First Circuit, reversing the
District Court's dismissal of respondent's petition for a writ of
federal habeas corpus, [
Footnote
1] held that "the procedure by which [respondent] was brought
to trial deprived him of the Fourteenth Amendment's guarantee of
equal protection of the laws." 434 F.2d 673, 674 (1970). The Court
of Appeals acknowledged that respondent had not attacked his
conviction on the equal protection ground, either in the state
courts or in his federal habeas petition:
"[Respondent] did not present the constitutional question to the
Massachusetts court in the particular focus in which this opinion
is directed. We suggested it when the case reached us, and invited
the Commonwealth to file a supplemental brief. Not unnaturally, its
first contention was to assert that [respondent] had not exhausted
his state remedy. . . ."
Ibid. The Court of Appeals rejected that contention and
held that respondent had exhausted available state judicial
remedies, as required by 28 U.S.C. § 2254, [
Footnote 2] because he
Page 404 U. S. 272
had "presented the [state] court with
an opportunity to
apply controlling legal principles to the facts bearing upon [his]
constitutional claim.'" Ibid. We granted certiorari to
consider that ruling in light of the command of § 2254. 402 U.S.
942 (1971). We hold that the State's objection should have been
sustained, and we therefore reverse for further proceedings,
see Slayton v. Smith, ante, p. 404 U. S. 53,
without reaching the merits of the constitutional question decided
by the Court of Appeals. [Footnote
3] A Massachusetts grand jury returned an indictment for murder
against Donald Landry "and John Doe, the true name and a more
particular description of the said John Doe being to the said
Jurors unknown." After respondent's arrest, the indictment was
amended in a proceeding pursuant to a fictitious name statute,
Mass.Gen.Laws Ann., c. 277, § 19, [Footnote 4] to substitute respondent's
Page 404 U. S. 273
name for "John Doe." The Massachusetts Supreme Judicial Court
affirmed respondent's subsequent conviction,
sub nom.
Commonweal the v. Doherty, 353 Mass.197,
229
N.E.2d 267 (1967). Among other grounds of appeal, respondent
challenged the legality of the indictment. The gist of respondent's
argument, which he also asserted during various trial proceedings,
was that the amending procedure did not comply with the statute as
construed by the Massachusetts courts, with the result that he had
not been lawfully indicted for the crime.
See Commonwealth v.
Gedzium, 259 Mass. 453, 156 N.E. 890 (1927). [
Footnote 5] The only suggestions of a claimed
denial of a federal right were statements in respondent's brief
questioning the continuing validity of the holding in
Gedzium that the provision of the Fifth Amendment that
"[n]o person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury" was inapplicable to the States.
Id. at 457, 156 N.E.
at 891;
see Hurtado v. California, 110 U.
S. 516 (1884). [
Footnote
6] We have examined the
Page 404 U. S. 274
pretrial, trial, and appellate papers and do not discover any
indication of an attack upon the prosecution under the indictment
as violative of the Equal Protection Clause of the Fourteenth
Amendment. [
Footnote 7]
Page 404 U. S. 275
It has been settled since
Ex parte Royall, 117 U.
S. 241 (1886), that a state prisoner must normally
exhaust available state judicial remedies before a federal court
will entertain his petition for habeas corpus.
See, e.g.,
Nelson v. George, 399 U. S. 224,
399 U. S. 229
(1970);
Irvin v. Dowd, 359 U. S. 394,
359 U. S.
404-405 (1959);
Ex parte Hawk, 321 U.
S. 114 (1944). The "exhaustion of state remedies"
doctrine, now codified in the federal habeas statute, 28 U.S.C. §§
2254(b) and (c), [
Footnote 8]
reflects a policy of federal-state comity,
Fay v. Noia,
372 U. S. 391,
372 U. S.
419-420 (1963);
Bowen v. Johnston, 306 U. S.
19,
306 U. S. 27
(1939),
"an accommodation of our federal system designed to give the
State the initial 'opportunity to pass upon and correct' alleged
violations of its prisoners' federal rights."
Wilwording v. Swenson, ante, p.
404 U. S. 249, at
404 U. S. 250.
We have consistently adhered to this federal policy, for
"it would be unseemly in our dual system of government for a
federal district court to upset a state court conviction without an
opportunity to the state courts to correct a constitutional
violation."
Darr v. Burford, 339 U. S. 200,
339 U. S. 204
(1950) (overruled in other respects,
Fay v. Noia, supra,
at
372 U. S.
435-436). It follows, of course, that, once the federal
claim has been fairly presented to the state courts, the exhaustion
requirement is satisfied.
See, e.g., Wilwording v. Swenson,
supra, at
404 U. S. 250;
Roberts v. LaVallee, 389 U. S. 40,
389 U. S. 42-43
(1967);
Brown v. Allen, 344 U. S. 443,
344 U. S.
447-450 (1953).
We emphasize that the federal claim must be fairly presented to
the state courts. If the exhaustion doctrine is to prevent
"unnecessary conflict between courts equally bound to guard and
protect rights secured by the Constitution,"
Ex parte Royall,
supra, at
117 U. S. 251,
it is not sufficient merely that the federal habeas applicant
has
Page 404 U. S. 276
been through the state courts. The rule would serve no purpose
if it could be satisfied by raising one claim in the state courts
and another in the federal courts. Only if the state courts have
had the first opportunity to hear the claim sought to be vindicated
in a federal habeas proceeding does it make sense to speak of the
exhaustion of state remedies. Accordingly, we have required a state
prisoner to present the state courts with the same claim he urges
upon the federal courts.
See Darr v. Burford, supra, at
339 U. S. 203;
Davis v. Burke, 179 U. S. 399,
179 U. S.
401-403 (1900)
Respondent challenged the validity of his indictment at every
stage of the proceedings in the Massachusetts courts. As the Court
of Appeals pointed out, 434 F.2d at 674, this is not a case in
which factual allegations were made to the federal courts that were
not before the state courts,
see, e.g United States ex rel.
Boodie v. Herold, 349 F.2d 372 (CA2 1965);
Schiers v.
California, 333 F.2d 173 (CA9 1964), nor a case in which an
intervening change in federal law cast the legal issue in a
fundamentally different light,
see, e.g., Blair v.
California, 340 F.2d 741 (CA9 1965);
Pennsylvania ex rel.
Raymond v. Rundle, 339 F.2d 598 (CA3 1964). We therefore put
aside consideration of those types of cases. The question here is
simply whether, on the record and argument before it, the
Massachusetts Supreme Judicial Court had a fair opportunity to
consider the equal protection claim and to correct that asserted
constitutional defect in respondent's conviction. We think not.
Until he reached this Court, [
Footnote 9] respondent never contended that the method by
which he was brought to trial
Page 404 U. S. 277
denied him equal protection of the laws. Rather, from the
outset, respondent consistently argued that he had been improperly
indicted under Massachusetts law and, to the extent he raised a
federal constitutional claim at all, that the indictment procedure
employed in his case could not be approved without reference to
whether the Fifth Amendment's requirement of a grand jury
indictment applied to the States. He adverted to the Fourteenth
Amendment solely as it bore upon that submission. [
Footnote 10] The equal protection issue
entered this case only because the Court of Appeals injected
it.
We are thus unable to agree with that court that respondent
provided the Massachusetts "court with
an opportunity to apply
controlling legal principles to the facts bearing upon [his]
constitutional claim.'" 434 F.2d at 674. To be sure, respondent
presented all the facts. Yet the constitutional claim the Court of
Appeals found inherent in those facts was never brought to the
attention of the state courts. The Supreme Judicial Court dealt
with the arguments respondent offered; we cannot fault that court
for failing also to consider sua sponte whether the
indictment procedure denied respondent equal protection of the
laws. Obviously there are instances in which "the ultimate question
for disposition," United States ex rel. Kemp v. Pate, 359
F.2d 749, 751 (CA7 1966), will be the same despite variations in
the legal theory or factual allegations urged in its support. A
ready example is a challenge to a confession predicated upon
psychological, as well as physical, coercion. See Sanders v.
United States, 373 U. S. 1,
373 U. S. 16
(1963). Hence,
Page 404 U. S. 278
we do not imply that respondent could have raised the equal
protection claim only by citing "book and verse on the federal
constitution."
Daugharty Gladden, 257 F.2d 750, 758 (CA9
1958);
see Kirby v. Warden, 296 F.2d 151 (CA4 1961). We
simply hold that the substance of a federal habeas corpus claim
must first be presented to the state courts. The claim that an
indictment is invalid is not the substantial equivalent of a claim
that it results in an unconstitutional discrimination.
See Rose
v. Dickson, 327 F.2d 27, 29 (CA9 1964);
Morris v.
Mayo, 277 F.2d 103 (CA5 1960). The judgment of the Court of
Appeals is therefore reversed, and the case is remanded to that
court for further proceedings consistent with this opinion.
It is so ordered.
[
Footnote 1]
308 F. Supp. 843 (Mass. 970).
[
Footnote 2]
Title 28 U.S.C. § 2254 provides in pertinent part:
"(b) 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."
"(c) 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."
[
Footnote 3]
Respondent does not contend that there are no available state
judicial remedies through which he can present the equal protection
claim. It appears that Massachusetts provides post-conviction
procedures adequate to adjudicate that claim, either by motion for
a new trial, Mass.Gen.Laws Ann., c. 278, § 29;
see Earl v.
Commonwealth, 356 Mass. 181,
248
N.E.2d 498 (1969), or by writ of error, Mass.Gen.Laws Ann., c.
250;
see Cortellesso v. Commonwealth, 354 Mass. 514,
238
N.E.2d 516 (1968);
Crowell v. Commonwealth, 352 Mass.
288,
225
N.E.2d 330 (1967);
Shoppers' World, Inc. v. Board of
Assessors, 348 Mass. 366, 376 n. 9,
203
N.E.2d 811, 819 n. 9 (1965).
[
Footnote 4]
"If the name of an accused person is unknown to the grand jury,
he may be described by a fictitious name or by any other
practicable description, with an allegation that his real name is
unknown. An indictment of the defendant by a fictitious or
erroneous name shall not be ground for abatement; but if at any
subsequent stage of the proceedings his true name is discovered, it
shall be entered on the record and may be used in the subsequent
proceedings, with a reference to the fact that he was indicted by
the name or description mentioned in the indictment."
[
Footnote 5]
Although the Massachusetts Constitution does not expressly
provide for grand jury indictments, the Massachusetts courts have
construed Art. XII of the Declaration of Rights to require that
"'no person . . . shall be held to answer for a capital or
otherwise infamous crime . . . unless he shall have been previously
charged on the presentment or indictment of a grand jury.'"
Jones v. Robbins, 74 Mass. 329, 344 -45 (1857). In
arguing his first assignment of error:
"[T]he dismissal in the
Gedzium case of the
applicability of the Fifth Amendment provision . . . would appear
to be in need of reexamination, in the light of the development by
the United States Supreme Court . . . of the doctrine of
applicability of guarantees of the Federal Bill of Rights to the
states by virtue of the Fourteenth Amendment."
Brief for Connor in the Massachusetts Supreme Judicial Court
13.
[
Footnote 6]
In arguing his third and fourth assignments of error:
"As set forth
supra, in the argument in support of the
first Assignment, the indictment of 'John Doe' was a nullity
because it was a general indictment, not limited to any
identifiable individual. Since this is a capital case, the
defendant Connor was prosecuted in violation of his constitutional
right to due process in that he was put to trial without having
been indicted by a Grand Jury."
Id. at 14.
[
Footnote 7]
Nor did respondent's federal habeas petition assert a denial of
equal protection. The petition alleges that
"[h]e was brought to trial without indictment or presentment in
violation of the Fifth Amendment and of the Massachusetts
Constitution, . . . [of] the statutory provisions of [the
fictitious name statute], and of the rule of the common law that an
indictment in a capital case . . . forbids any amendment to such an
indictment."
In his memorandum in support of the petition, respondent argued
that the Massachusetts indictment procedure
"must be administered in accordance with the principles
pertaining to the Grand Jury as established by the law of the land,
i.e., in accordance with due process as created by the
common law and adopted by our Constitution. . . . In accordance
with these principles, since the indictment did not name nor
describe [respondent], it was, as to him, a nullity, and remained
so after amendment."
The District Court, noting that respondent had
"argued indiscriminately on the basis of the statutes and
constitution of the Commonwealth of Massachusetts, as well as upon
federal grounds,"
308 F. Supp. at 845 n. 2, considered respondent's contention to
be "that the amendment of the indictment to substitute Connor's
name for John Doe was a violation of the Fifth Amendment." The
court rejected that contention on the ground
"that the due process clause of the Fourteenth Amendment does
not make applicable to the states the grand jury requirement of the
Fifth Amendment."
Id. at 845.
[
Footnote 8]
See n2,
supra.
[
Footnote 9]
The decision of the Court of Appeals prompted respondent, for
the first time in any court, to advance the argument in this Court
that,
"since indictment is the only process provided for the finding
of probable cause in Massachusetts prior to trial, its denial in
Connor's case alone was undoubtedly a violation of Connor's federal
rights not only as to due process, but also equal protection, under
the Fourteenth Amendment, as stated by the Chief Judge of the
Circuit Court."
Brief for Respondent 15.
[
Footnote 10]
Respondent reiterated these contentions in his federal habeas
petition.
See n 7,
supra.
MR. JUSTICE DOUGLAS, dissenting.
With all respect, I think that, in this case, we carry the rule
of exhaustion of state remedies too far. Connor's name was added to
the indictment after it was returned by the state grand jury, he
being substituted for "John Doe." He raised in his brief before the
Supreme Judicial Court of Massachusetts his claim that such a
substitution denied him that quantum of due process required by the
Fourteenth Amendment "in that he was put to trial without having
been indicted by a Grand Jury." [
Footnote 2/1] He did not refer to the Equal Protection
Clause, which is also a part of the Fourteenth Amendment. But that
is a nicety irrelevant to the maintenance
Page 404 U. S. 279
of healthy state-federal relations on which the Court makes the
present decision turn. The concept of due process is broad and
expansive, and "the concepts of equal protection and due process,
both stemming from our American ideal of fairness, are not mutually
exclusive."
Bolling v. Sharpe, 347 U.
S. 497,
347 U. S. 499.
We have thus held that the denial of equal protection,
viz., invidious discrimination, may be "so unjustifiable
as to be violative of due process."
Ibid. [
Footnote 2/2] As MR. JUSTICE BRENNAN said in
Boddie v. Connecticut, 401 U. S. 371,
401 U. S. 388
(concurring opinion),
"The question that the Court treats exclusively as one of due
process inevitably implicates considerations of both due process
and equal protection."
That is likewise true here.
Moreover, a due process point is plainly raised where an accused
claims that no grand jury found "probable cause" to indict him,
that its only finding concerned someone unknown at the time.
If Connor had complained of a coerced confession, or of perjured
testimony, and the facts on which he relied
Page 404 U. S. 280
were developed in the State court, the constitutional questions
would surely have been sufficiently raised without reference to the
precise constitutional provisions involved. The situation here is
no different. [
Footnote 2/3]
Page 404 U. S. 281
The judges to whom that issue of law is tendered are learned men
who we must assume are knowledgeable as to the meaning of due
process. A law student who tendered a brief that left due process
at large would certainly not be worthy of an "A." But the nicety of
analysis which we associate with scholarship has no functional role
to play in this area of exhaustion of state remedies. When we go to
that extreme, we make a trap out of the exhaustion doctrine which
promises to exhaust the litigant and his resources, not the
remedies.
I fear that our reluctance to backstop the Court of Appeals in
the present case is symptomatic of this Court's trend to sidestep
all possible controversies so, as it hopes, to let them disappear.
Of course we should remit a litigant to his state tribunal if facts
have emerged which were not known at the time of the trial or if
intervening decisions have outdated the earlier state decision. No
such situation exists here. The facts are simple and uncontested:
Connor's name was substituted for John Doe after the indictment was
returned. The point of law is clear now, and will be no clearer on
the remand. Its vulnerability tested by due process was as obvious
when the case was before the Supreme Judicial Court of
Massachusetts as it now is. I think the Court of Appeals acted
responsibly in ruling on it. We should decide the merits here and
now. Endless repetitive procedures are encouraged by today's ruling
on exhaustion of remedies. I would bring this litigation to an end
today by applying the "exhaustion of remedy" rule to terminate,
rather than multiply, procedures that now engulf the state-federal
regime.
[
Footnote 2/1]
The Court properly says that respondent tendered the validity of
Commonwealth v. Gedzium, 259 Mass. 453, 156 N.E. 890, to
the Supreme Judicial Court of Massachusetts. That, however, was in
his first assignment of error. But in his third and fourth
assignments of error, he alleged that he was prosecuted "in
violation of his constitutional right to due process in that he was
put to trial without having been indicted by a Grand Jury."
[
Footnote 2/2]
The overlap is, of course, not total.
Bolling v.
Sharpe, 347 U. S. 497,
347 U. S. 499.
But the extent to which the two concepts merge has been a subject
of debate since Representative John A. Bingham of Ohio, an
architect of the Fourteenth Amendment, used the phrases "due
process" and "equal protection" interchangeably on the floor of
Congress. Cong.Globe, 39th Cong., 1st Sess., 1088-1089.
See,
e.g., Wilson, The Merging Concepts of Liberty and Equality, 12
Wash. & Lee L.Rev. 182, Antieau, Equal Protection Outside the
Clause, 40 Calif.L.Rev. 362, Tussman & tenBroek, The Equal
Protection of the Laws, 37 Calif.L.Rev. 341.
Compare Douglas v.
California, 372 U. S. 353, and
Griffin v. Illinois, 351 U. S. 12,
with Gideon v. Wainwright, 372 U.
S. 335,
and Powell v. Alabama, 287 U. S.
45.
There is apparently a similar controversy in India, whose
constitution also contains both a due process and equal protection
clause.
See, e.g., Narain, Equal Protection Guarantee and
the Right of Property Under the Indian Constitution, 15 Int. &
Comp.L.Q.199.
[
Footnote 2/3]
Dougharty v. Gladden, 257 F.2d 750 (CA9), which the
Court cites, is instructive. Daugharty was an indigent state
prisoner. He appealed the denial of state habeas corpus to the
intermediate state appellate court, but that court dismissed the
appeal because Daugharty could not afford to supply an appellate
transcript. He then moved the state supreme court for an order
requiring that he be supplied a transcript free of charge, and when
that motion was denied, sought federal habeas corpus. The District
Judge denied the application for a writ on the grounds Daugharty
had failed to exhaust state remedies. Despite the fact that
Daugharty never even mentioned the Fourteenth Amendment, much less
the Equal Protection Clause, the Court of Appeals held that his
motion in the state supreme court satisfied the exhaustion
requirement.
"In moving the Oregon Supreme Court for an order requiring that
a transcript be supplied without expense to him, Daugharty called
attention to his inability to pay for such a record. This provided
that court with all of the facts necessary to give application to
the constitutional principle upon which appellant relies. . . .
[E]xhaustion of state remedies is not to be denied because the
Fourteenth Amendment was not specifically mentioned."
Id. at 758.
Analogously, the Court of Appeals said in the instant case:
"Petitioner did not present the constitutional question to the
Massachusetts court in the particular focus in which this opinion
is directed. We suggested it when the case reached us, and invited
the Commonwealth to file a supplemental brief. Not unnaturally, its
first contention was to assert that petitioner had not exhausted
his state remedy, citing
Needel v. Scafati, 1 Cir., 1969,
412 F.2d 761,
cert. denied 396 U.S. 861, . . . and
Subilosky v. Commonwealth, 1 Cir., 1969, 412 F.2d 691. We
find these cases inapposite. This opinion considers neither facts,
as in
Needel, nor precedent, as in
Subilosky,
that was not available to the Massachusetts court when petitioner
was before it. Petitioner presented the court with 'an opportunity
to apply controlling legal principles to the facts bearing upon
[his] constitutional claim.'
United States ex rel. Kemp v.
Pate, 7 Cir., 1966, 359 F.2d 749, 751;
cf. Wilbur v.
Maine, 1 Cir., 1970, 421 F.2d 1327. That is enough to satisfy
the requirements of the exhaustion . . . doctrine.
Sullivan v.
Scafati, 1 Cir., 1970, 42 F.2d 1023, 1024 n. 1. We therefore
turn to the merits."
434 F.2d 673, 674.