During respondent's trial for murder, inculpatory statements
made by him to police officers were admitted into evidence. No
challenge was made on the ground that respondent had not understood
warnings read to him pursuant to
Miranda v. Arizona,
384 U. S. 436, nor
did the trial judge
sua sponte question their
admissibility or hold a factfinding hearing. Respondent, who was
convicted, did not challenge the admissibility of the statements on
appeal, though later he did so, unavailingly, in a motion to vacate
the conviction and in state habeas corpus petitions. He then
brought this federal habeas corpus action under 28 U.S.C. § 2254,
asserting the inadmissibility of his statements by reason of his
lack of understanding of the
Miranda warnings. The
District Court ruled that, under
Jackson v. Denno,
378 U. S. 368,
respondent had a right to a hearing in the state court on the
voluntariness of the statements, and that he had not lost that
right by failing to assert his claim at trial or on appeal. The
Court of Appeals agreed that respondent was entitled to a
Jackson v. Denno hearing, and ruled that respondent's
failure to comply with Florida's procedural "contemporaneous
objection rule" (which, except as specified, requires a defendant
to make a motion to suppress evidence prior to trial) would not bar
review of the suppression claim unless the right to object was
deliberately bypassed for tactical reasons.
Held: Respondent's failure to make timely objection
under the Florida contemporaneous objection rule to the admission
of his inculpatory statements, absent a showing of cause for the
noncompliance and some showing of actual prejudice, bars federal
habeas corpus review of his
Miranda claim.
Davis v.
United States, 411 U. S. 233;
Francis v. Henderson, 425 U. S. 536. Pp.
433 U. S.
77-91.
(a) Florida's rule, in unmistakable terms and with specified
exceptions, requires that motions to suppress be raised before
trial. P.
433 U. S.
85.
(b) There is no constitutional requirement in
Jackson v.
Denno, supra, or later cases that there be a voluntariness
hearing absent some contemporaneous challenge to the use of a
confession. P.
433 U. S.
86.
(c) The sweeping language set forth in
Fay v. Noia,
372 U. S. 391,
Page 433 U. S. 73
which would render a State's contemporaneous objection rule
ineffective to bar review of underlying federal claims in federal
habeas corpus proceedings -- absent a "knowing waiver" or a
"deliberate bypass" of the right to so object -- is rejected as
according too little respect to the state contemporaneous objection
rule. Such a rule enables the record to be made with respect to a
constitutional claim when witnesses' recollections are freshest;
enables the trial judge who observed the demeanor of witnesses to
make the factual determinations necessary for properly deciding the
federal question; and may, by forcing a trial court decision on the
merits of federal constitutional contentions, contribute to the
finality of criminal litigation. Conversely, the rule of
Fay v.
Noia may encourage defense lawyers to take their chances on a
verdict of not guilty in a state trial court, intending to raise
their constitutional claims in a federal habeas corpus court if
their initial gamble fails, and detracts from the perception of the
trial of a criminal case as a decisive and portentous event. Pp.
433 U. S.
87-90.
(d) Adoption of the "cause" and "prejudice" test of
Francis, while giving greater respect than did
Fay to the operation of state contemporaneous objection
rules, affords an adequate guarantee that federal habeas corpus
courts will not be barred from hearing claims involving an actual
miscarriage of justice. The procedural history of this case and the
evidence as presented at trial indicate that there exist here
neither "cause" nor "prejudice" as are necessary to support federal
habeas corpus review of the underlying constitutional contention.
Pp.
433 U. S.
90-91.
528 F.2d 522, reversed and remanded.
REHNQUIST, J, delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, BLACKMUN, POWELL, and STEVENS, JJ.,
joined. BURGER, C.J.,
post, p.
433 U. S. 91,
and STEVENS, J.,
post, p.
433 U. S. 94,
filed concurring opinions. WHITE, J., filed an opinion concurring
in the judgment,
post, p.
433 U. S. 97.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
post, p.
433 U. S.
99.
Page 433 U. S. 74
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
We granted certiorari to consider the availability of federal
habeas corpus to review a state convict's claim that testimony was
admitted at his trial in violation of his rights under
Miranda
v. Arizona, 384 U. S. 436
(1966), a claim which the Florida courts have previously refused to
consider on the merits because of noncompliance with a state
contemporaneous objection rule. Petitioner Wainwright, on behalf of
the State of Florida, here challenges a decision of the Court of
Appeals for the Fifth Circuit ordering a hearing in state court on
the merits of respondent's contention.
Respondent Sykes was convicted of third-degree murder after a
jury trial in the Circuit Court of DeSoto County. He testified at
trial that, on the evening of January 8, 1972, he told his wife to
summon the police because he had just shot Willie Gilbert. Other
evidence indicated that, when the police arrived at respondent's
trailer home, they found Gilbert dead of a shotgun wound, lying a
few feet from the front porch. Shortly after their arrival,
respondent came from across the road and volunteered that he had
shot Gilbert, and a few minutes later respondent's wife approached
the police and told them the same thing. Sykes was immediately
arrested and taken to the police station.
Once there, it is conceded that he was read his
Miranda
rights, and that he declined to seek the aid of counsel and
indicated a desire to talk. He then made a statement, which was
admitted into evidence at trial through the testimony of the two
officers who heard it, [
Footnote
1] to the effect that he had shot Gilbert from the front porch
of his trailer home; there were several references during the trial
to respondent's consumption
Page 433 U. S. 75
of alcohol during the preceding day and to his apparent state of
intoxication, facts which were acknowledged by the officers who
arrived at the scene. At no time during the trial, however, was the
admissibility of any of respondent's statements challenged by his
counsel on the ground that respondent had not understood the
Miranda warnings. [
Footnote 2] Nor did the trial judge question their
admissibility on his own motion or hold a factfinding hearing
bearing on that issue.
Respondent appealed his conviction, but apparently did not
challenge the admissibility of the inculpatory statements.
[
Footnote 3] He later filed in
the trial court a motion to vacate the conviction and, in the State
District Court of Appeals and Supreme Court, petitions for habeas
corpus. These filings, apparently for the first time, challenged
the statements made to police on grounds of involuntariness. In all
of these efforts, respondent was unsuccessful.
Having failed in the Florida courts, respondent initiated the
present action under 28 U.S.C. § 2254, asserting the
inadmissibility of his statements by reason of his lack of
understanding of the
Miranda warnings. [
Footnote 4] The United States District Court
for the Middle District of Florida ruled that
Jackson
v. Denno,
Page 433 U. S. 76
378 U. S. 368
(1964), requires a hearing in a state criminal trial prior to the
admission of an inculpatory out-of-court statement by the
defendant. It held further that respondent had not lost his right
to assert such a claim by failing to object at trial or on direct
appeal, since only "exceptional circumstances" of "strategic
decisions at trial" can create such a bar to raising federal
constitutional claims in a federal habeas action. The court stayed
issuance of the writ to allow the state court to hold a hearing on
the "voluntariness" of the statements.
Petitioner warden appealed this decision to the United States
Court of Appeals for the Fifth Circuit. That court first considered
the nature of the right to exclusion of statements made without a
knowing waiver of the right to counsel and the right not to
incriminate oneself. It noted that
Jackson v. Denno,
supra, guarantees a right to a hearing on whether a defendant
has knowingly waived his rights as described to him in the
Miranda warnings, and stated that, under Florida law
"[t]he burden is on the State to secure [a]
prima facie
determination of voluntariness, not upon the defendant to demand
it." 528 F.2d 522, 525 (1976).
The court then directed its attention to the effect on
respondent's right of Florida Rule Crim.Proc. 3.190(i), [
Footnote 5] which it described as "a
contemporaneous objection rule" applying to motions to suppress a
defendant's inculpatory statements.
Page 433 U. S. 77
It focused on this Court's decisions in
Henry v.
Mississippi, 379 U. S. 443
(1965);
Davis v. United States, 411 U.
S. 233 (1973); and
Fay v. Noia, 372 U.
S. 391 (1963), and concluded that the failure to comply
with the rule requiring objection at the trial would only bar
review of the suppression claim where the right to object was
deliberately bypassed for reasons relating to trial tactics. The
Court of Appeals distinguished our decision in
Davis,
supra, (where failure to comply with a rule requiring pretrial
objection to the indictment was found to bar habeas review of the
underlying constitutional claim absent showing of cause for the
failure and prejudice resulting), for the reason that "[a] major
tenet of the
Davis decision was that no prejudice was
shown" to have resulted from the failure to object. It found that
prejudice is "inherent" in any situation, like the present one,
where the admissibility of an incriminating statement is concerned.
Concluding that "[t]he failure to object in this case cannot be
dismissed as a trial tactic, and thus a deliberate by-pass," the
court affirmed the District Court order that the State hold a
hearing on whether respondent knowingly waived his
Miranda
rights at the time he made the statements.
The simple legal question before the Court calls for a
construction of the language of 28 U.S.C. § 2254(a), which provides
that the federal courts shall entertain an application for a writ
of habeas corpus
"in behalf of a person in custody pursuant to the judgment of a
state court only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States."
But, to put it mildly, we do not write on a clean slate in
construing this statutory provision. [
Footnote 6] Its earliest counterpart, applicable only
Page 433 U. S. 78
to prisoners detained by federal authority, is found in the
Judiciary Act of 1789. Construing that statute for the Court in
Ex parte
Watkins, 3 Pet.193,
28 U. S. 202
(1830), Mr. Chief Justice Marshall said:
"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."
See Ex parte
Kearney, 7 Wheat. 38 (1822).
In 1867, Congress expanded the statutory language so as to make
the writ available to one held in state, as well as federal,
custody. For more than a century since the 1867 amendment, this
Court has grappled with the relationship between the classical
common law writ of habeas corpus and the remedy provided in 28
U.S.C. § 2254. Sharp division within the Court has been manifested
on more than one aspect of the perplexing problems which have been
litigated in this connection. Where the habeas petitioner
challenges a final judgment of conviction rendered by a state
court, this Court has been called upon to decide no fewer than four
different questions, all to a degree interrelated with one another:
(1) What types of federal claims may a federal habeas court
properly consider? (2) Where a federal claim is cognizable by a
federal habeas court, to what extent must that court defer to a
resolution of the claim in prior state proceedings? (3) To what
extent must the petitioner who seeks federal habeas exhaust state
remedies before resorting to the federal court? (4) In what
instances will an adequate and independent state
Page 433 U. S. 79
ground bar consideration of otherwise cognizable federal issues
on federal habeas review?
Each of these four issues has spawned its share of litigation.
With respect to the first, the rule laid down in
Ex parte
Watkins, supra, was gradually changed by judicial decisions
expanding the availability of habeas relief beyond attacks focused
narrowly on the jurisdiction of the sentencing court.
See Ex parte
Wells, 18 How. 307 (1856);
Ex parte
Lange, 18 Wall. 163 (1874).
Ex parte
Siebold, 100 U. S. 371
(1880), authorized use of the writ to challenge a conviction under
a federal statute where the statute was claimed to violate the
United States Constitution.
Frank v. Mangum, 237 U.
S. 309 (1915), and
Moore v. Dempsey,
261 U. S. 86
(1923), though in large part inconsistent with one another,
together broadened the concept of jurisdiction to allow review of a
claim of "mob domination" of what was in all other respects a trial
in a court of competent jurisdiction.
In
Johnson v. Zerbst, 304 U. S. 458,
304 U. S. 463
(1938), an indigent federal prisoner's claim that he was denied the
right to counsel at his trial was held to state a contention going
to the "power and authority" of the trial court, which might be
reviewed on habeas. Finally, in
Waley v. Johnston,
316 U. S. 101
(1942), the Court openly discarded the concept of jurisdiction --
by then more a fiction than anything else -- as a touchstone of the
availability of federal habeas review, and acknowledged that such
review is available for claims of "disregard of the constitutional
rights of the accused, and where the writ is the only effective
means of preserving his rights."
Id. at
316 U. S.
104-105. In
Brown v. Allen, 344 U.
S. 443 (1953), it was made explicit that a state
prisoner's challenge to the trial court's resolution of dispositive
federal issues is always fair game on federal habeas. Only last
Term, in
Stone v. Powell, 428 U.
S. 465 (1976), the Court removed from the purview of a
federal habeas court challenges resting on the Fourth Amendment,
where there has been a full and fair opportunity to raise them
Page 433 U. S. 80
in the state court.
See Schneckloth v. Bustamonte,
412 U. S. 218,
412 U. S. 250
(1973) (POWELL, J., concurring).
The degree of deference to be given to a sate court's resolution
of a federal law issue was elaborately canvassed in the Court's
opinion in
Brown v. Allen, supra. Speaking for the Court,
Mr. Justice Reed stated:
"[Such] state adjudication carries the weight that federal
practice gives to the conclusion of a court of last resort of
another jurisdiction on federal constitutional issues. It is not
res judicata."
344 U.S. at
344 U. S. 458.
The duty of the federal habeas court to hold a factfinding hearing
in specific situations, notwithstanding the prior resolution of the
issues in state court, was thoroughly explored in this Court's
later decision in
Townsend v. Sain, 372 U.
S. 293 (1963). Congress addressed this aspect of federal
habeas in 1966, when it amended § 2254 to deal with the problem
treated in
Townsend. 80 Stat. 1105.
See LaVallee v.
Delle Rose, 410 U. S. 690
(1973).
The "exhaustion of state remedies" requirement was first
articulated by this Court in the case of
Ex parte Royall,
117 U. S. 241
(1886). There, a state defendant sought habeas in advance of trial
on a claim that he had been indicted under an unconstitutional
statute. The writ was dismissed by the District Court, and this
Court affirmed, stating that, while there was power in the federal
courts to entertain such petitions, as a matter of comity, they
should usually stay their hand pending consideration of the issue
in the normal course of the state trial. This rule has been
followed in subsequent cases,
e.g., Cook v. Hart,
146 U. S. 183
(1892);
Whitten v. Tomlinson, 160 U.
S. 231 (1895);
Baker v. Grice, 169 U.
S. 284 (1898);
Mooney v. Holohan, 294 U.
S. 103 (1935), and has been incorporated into the
language of § 2254. [
Footnote
7] Like other
Page 433 U. S. 81
issues surrounding the availability of federal habeas corpus
relief, though, this line of authority has not been without
historical uncertainties and changes in direction on the part of
the Court.
See Ex parte Hawk, 321 U.
S. 114,
321 U. S.
116-117 (1944);
Darr v. Burford, 339 U.
S. 200 (1950);
Irving v. Dowd, 359 U.
S. 394,
359 U. S.
405-406 (1959);
Fay v. Noia, 372 U.
S. 391,
372 U. S. 435
(1963).
There is no need to consider here in greater detail these first
three areas of controversy attendant to federal habeas review of
state convictions. Only the fourth area -- the adequacy of state
grounds to bar federal habeas review -- is presented in this case.
The foregoing discussion of the other three is pertinent here only
as it illustrates this Court's historic willingness to overturn or
modify its earlier views of the scope of the writ, even where the
statutory language authorizing judicial action has remained
unchanged.
As to the role of adequate and independent state grounds, it is
a well established principle of federalism that a state decision
resting on an adequate foundation of state substantive law is
immune from review in the federal courts.
Fox Film Corp. v.
Muller, 296 U. S. 207
(1935);
Murdock v.
Memphis, 20 Wall. 590 (1875). The application of
this principle in the context of a federal habeas proceeding has
therefore excluded from consideration any questions of state
substantive law, and thus effectively barred federal habeas review
where questions of that sort are either the only ones raised by a
petitioner or are, in themselves, dispositive of his case. The area
of controversy which has developed has concerned the reviewability
of federal claims which the state court has declined to pass on
Page 433 U. S. 82
because not presented in the manner prescribed by its procedural
rules. The adequacy of such an independent state procedural ground
to prevent federal habeas review of the underlying federal issue
has been treated very differently than where the state law ground
is substantive. The pertinent decisions marking the Court's
somewhat tortuous efforts to deal with this problem are:
Ex
parte Spencer, 228 U. S. 652
(1913);
Brown v. Allen, 344 U. S. 443
(1953);
Fay v. Noia, supra; Davis v. United States,
411 U. S. 233
(1973); and
Francis v. Henderson, 425 U.
S. 536 (1976).
In
Brown, supra, petitioner Daniels' lawyer had failed
to mail the appeal papers to the State Supreme Court on the last
day provided by law for filing, and hand delivered them one day
after that date. Citing the state rule requiring timely filing, the
Supreme Court of North Carolina refused to hear the appeal. This
Court, relying in part on its earlier decision in
Ex parte
Spencer, supra, held that federal habeas was not available to
review a constitutional claim which could not have been reviewed on
direct appeal here because it rested on an independent and adequate
state procedural ground. 344 U.S. at
344 U. S.
486-487.
In
Fay v. Noia, supra, respondent Noia sought federal
habeas to review a claim that his state court conviction had
resulted from the introduction of a coerced confession in violation
of the Fifth Amendment to the United States Constitution. While the
convictions of his two codefendants were reversed on that ground in
collateral proceedings following their appeals, Noia did not
appeal, and the New York courts ruled that his subsequent
coram
nobis action was barred on account of that failure. This Court
held that petitioner was nonetheless entitled to raise the claim in
federal habeas, and thereby overruled its decision 10 years earlier
in
Brown v. Allen, supra:
"[T]he doctrine under which state procedural defaults are held
to constitute an adequate and independent state
Page 433 U. S. 83
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."
372 U.S. at
372 U. S.
399.
As a matter of comity, but not of federal power, the Court
acknowledged
"a limited discretion in the federal judge to deny relief . . .
to an applicant who had deliberately by-passed the orderly
procedure of the state courts, and, in so doing, has forfeited his
state court remedies."
Id. at
372 U. S. 438.
In so stating, the Court made clear that the waiver must be knowing
and actual -- "
an intentional relinquishment or abandonment of
a known right or privilege.'" Id. at 372 U. S. 439,
quoting Johnson v. Zerbst, 304 U.S. at 304 U. S. 464.
Noting petitioner's "grisly choice" between acceptance of his life
sentence and pursuit of an appeal which might culminate in a
sentence of death, the Court concluded that there had been no
deliberate bypass of the right to have the federal issues reviewed
through a state appeal. [Footnote
8]
Page 433 U. S. 84
A decade later, we decided
Davis v. United States,
supra, in which a federal prisoner's application under 28
U.S.C. § 2255 sought for the first time to challenge the makeup of
the grand jury which indicted him. The Government contended that he
was barred by the requirement of Fed.Rule Crim.Proc. 12(b)(2)
providing that such challenges must be raised "by motion before
trial." The Rule further provides that failure to so object
constitutes a waiver of the objection, but that "the court for
cause shown may grant relief from the waiver." We noted that the
Rule
"promulgated by this Court and, pursuant to 18 U.S.C. § 3771,
'adopted' by Congress, governs by its terms the manner in which the
claims of defects in the institution of criminal proceedings may be
waived,"
411 U.S. at
411 U. S. 241,
and held that this standard contained in the Rule, rather than the
Fay v. Noia concept of waiver, should pertain in federal
habeas as on direct review. Referring to previous constructions of
Rule 12(b)(2), we concluded that review of the claim should be
barred on habeas, as on direct appeal, absent a showing of cause
for the noncompliance and some showing of actual prejudice
resulting from the alleged constitutional violation.
Last Term, in
Francis v. Henderson, supra, the rule of
Davis was applied to the parallel case of a state
procedural requirement that challenges to grand jury composition be
raised before trial. The Court noted that there was power in the
federal courts to entertain an application in such a case, but
rested its holding on "considerations of comity and concerns for
the orderly administration of criminal justice. . . ." 425 U.S. at
425 U. S.
538-539. While there was no counterpart provision of the
state rule which allowed an exception upon some showing of cause,
the Court concluded that the standard derived from the Federal Rule
should nonetheless be applied in that context, since
"'[t]here is no reason to . . . give greater preclusive effect
to procedural defaults by federal defendants than
Page 433 U. S. 85
to similar defaults by state defendants.'"
Id. at
425 U. S. 542,
quoting
Kaufman v. United States, 394 U.
S. 217,
394 U. S. 228
(1969). As applied to the federal petitions of state convicts,the
Davis "cause and prejudice" standard was thus incorporated
directly into the body of law governing the availability of federal
habeas corpus review.
To the extent that the dicta of
Fay v. Noia may be
thought to have laid down an all-inclusive rule rendering state
contemporaneous objection rules ineffective to bar review of
underlying federal claims in federal habeas proceedings -- absent a
"knowing waiver" or a "deliberate bypass" of the right to so object
-- its effect was limited by
Francis, which applied a
different rule and barred a habeas challenge to the makeup of a
grand jury. Petitioner Wainwright in this case urges that we
further confine its effect by applying the principle enunciated in
Francis to a claimed error in the admission of a
defendant's confession.
Respondent first contends that any discussion as to the effect
that noncompliance with a state procedural rule should have on the
availability of federal habeas is quite unnecessary, because, in
his view, Florida did not actually have a contemporaneous objection
rule. He would have us interpret Florida Rule Crim.Proc. 3.190(i),
[
Footnote 9] which petitioner
asserts is a traditional "contemporaneous objection rule," to place
the burden on the trial judge to raise on his own motion the
question of the admissibility of any inculpatory statement.
Respondent's approach is, to say the least, difficult to square
with the language of the Rule, which, in unmistakable terms and
with specified exceptions, requires that the motion to suppress be
raised before trial. Since all of the Florida appellate courts
refused to review petitioner's federal claim on the merits after
his trial, and since their action in so doing is quite consistent
with a line of Florida authorities interpreting
Page 433 U. S. 86
the rule in question as requiring a contemporaneous objection,
we accept the State's position on this point.
See Blatch v.
State, 216 So. 2d 261, 264 (Fla.App. 1968);
Dodd v.
State, 232 So. 2d 235, 238 (Fla.App. 1970);
Thomas v.
State, 249 So. 2d 510, 512 (Fla.App. 1971).
Respondent also urges that a defendant has a right under
Jackson v. Denno, 378 U. S. 368
(1964), to a hearing as to the voluntariness of a confession, even
though the defendant does not object to its admission. But we do
not read
Jackson as creating any such requirement. In that
case, the defendant's objection to the use of his confession was
brought to the attention of the trial court,
id. at
378 U. S. 374,
and n. 4, and nothing in the Court's opinion suggests that a
hearing would have been required even if it had not been. To the
contrary, the Court prefaced its entire discussion of the merits of
the case with a statement of the constitutional rule that was to
prove dispositive -- that a defendant has a
"right at some stage in the proceedings
to object to
the use of the confession and to have a fair hearing and a reliable
determination on the issue of voluntariness. . . ."
Id. at
378 U. S.
376-377 (emphasis added). Language in subsequent
decisions of this Court has reaffirmed the view that the
Constitution does not require a voluntariness hearing absent some
contemporaneous challenge to the use of the confession. [
Footnote 10]
We therefore conclude that Florida procedure did, consistently
with the United States Constitution, require that respondent's
confession be challenged at trial or not at all, and
Page 433 U. S. 87
thus his failure to timely object to its admission amounted to
an independent and adequate state procedural ground which would
have prevented direct review here.
See Henry v.
Mississippi, 379 U. S. 443
(1965). We thus come to the crux of this case. Shall the rule of
Francis v. Henderson, supra, barring federal habeas review
absent a showing of "cause" and "prejudice" attendant to a state
procedural waiver, be applied to a waived objection to the
admission of a confession at trial? [
Footnote 11] We answer that question in the
affirmative.
As earlier noted in the opinion, since
Brown v. Allen,
344 U. S. 443
(1953), it has been the rule that the federal habeas petitioner who
claims he is detained pursuant to a final judgment of a state court
in violation of the United States Constitution is entitled to have
the federal habeas court make its own independent determination of
his federal claim, without being bound by the determination on the
merits of that claim reached in the state proceedings. This rule of
Brown v. Allen is in no way changed by our holding today.
Rather, we deal only with contentions of federal law which were not
resolved on the merits in the state proceeding due to respondent's
failure to raise them there as required by state procedure. We
leave open for resolution in future decisions the precise
definition of the "cause" and "prejudice" standard, and note here
only that it is narrower than the standard set forth in dicta in
Fay v. Noia, 372 U. S. 391
(1963), which would make federal habeas review generally available
to state convicts absent a knowing and deliberate waiver of the
federal constitutional contention. It is the sweeping language of
Fay v. Noia, going
Page 433 U. S. 88
far beyond the facts of the case eliciting it, which we today
reject. [
Footnote 12]
The reasons for our rejection of it are several. The
contemporaneous objection rule itself is by no means peculiar to
Florida, and deserves greater respect than
Fay gives it,
both for the fact that it is employed by a coordinate jurisdiction
within the federal system and for the many interests which it
serves in its own right. A contemporaneous objection enables the
record to be made with respect to the constitutional claim when the
recollections of witnesses are freshest, not years later in a
federal habeas proceeding. It enables the judge who observed the
demeanor of those witnesses to make the factual determinations
necessary for properly deciding the federal constitutional
question. While the 1966 amendment to § 2254 requires deference to
be given to such determinations made by state courts, the
determinations themselves are less apt to be made in the first
instance if there is no contemporaneous objection to the admission
of the evidence on federal constitutional grounds.
A contemporaneous objection rule may lead to the exclusion of
the evidence objected to, thereby making a major contribution to
finality in criminal litigation. Without the evidence claimed to be
vulnerable on federal constitutional
Page 433 U. S. 89
grounds, the jury may acquit the defendant, and that will be the
end of the case; or it may nonetheless convict the defendant, and
he will have one less federal constitutional claim to assert in his
federal habeas petition. [
Footnote 13] If the state trial judge admits the evidence
in question after a full hearing, the federal habeas court pursuant
to the 1966 amendment to § 2254 will gain significant guidance from
the state ruling in this regard. Subtler considerations as well
militate in favor of honoring a state contemporaneous objection
rule. An objection on the spot may force the prosecution to take a
hard look at its hole card, and, even if the prosecutor thinks that
the state trial judge will admit the evidence, he must contemplate
the possibility of reversal by the state appellate courts or the
ultimate issuance of a federal writ of habeas corpus based on the
impropriety of the state court's rejection of the federal
constitutional claim.
We think that the rule of
Fay v. Noia, broadly stated,
may encourage "sandbagging" on the part of defense lawyers, who may
take their chances on a verdict of not guilty in a state trial
court with the intent to raise their constitutional claims in a
federal habeas court if their initial gamble does not pay off. The
refusal of federal habeas courts to honor contemporaneous objection
rules may also make state courts themselves less stringent in their
enforcement. Under the rule of
Fay v. Noia, state
appellate courts know that a federal constitutional issue raised
for the first time in the proceeding before them may well be
decided in any event by a federal habeas tribunal. Thus, their
choice is between addressing the issue notwithstanding the
petitioner's failure to timely object, or else face
Page 433 U. S. 90
the prospect that the federal habeas court will decide the
question without the benefit of their views.
The failure of the federal habeas courts generally to require
compliance with a contemporaneous objection rule tends to detract
from the perception of the trial of a criminal case in state court
as a decisive and portentous event. A defendant has been accused of
a serious crime, and this is the time and place set for him to be
tried by a jury of his peers and found either guilty or not guilty
by that jury. To the greatest extent possible, all issues which
bear on this charge should be determined in this proceeding: the
accused is in the courtroom, the jury is in the box, the judge is
on the bench, and the witnesses, having been subpoenaed and duly
sworn, await their turn to testify. Society's resources have been
concentrated at that time and place in order to decide, within the
limits of human fallibility, the question of guilt or innocence of
one of its citizens. Any procedural rule which encourages the
result that those proceedings be as free of error as possible is
thoroughly desirable, and the contemporaneous objection rule surely
falls within this classification.
We believe the adoption of the
Francis rule in this
situation will have the salutary effect of making the state trial
on the merits the "main event," so to speak, rather than a "tryout
on the road" for what will later be the determinative federal
habeas hearing. There is nothing in the Constitution or in the
language of § 2254 which requires that the state trial on the issue
of guilt or innocence be devoted largely to the testimony of fact
witnesses directed to the elements of the state crime, while only
later will there occur in a federal habeas hearing a full airing of
the federal constitutional claims which were not raised in the
state proceedings. If a criminal defendant thinks that an action of
the state trial court is about to deprive him of a federal
constitutional right, there is every reason for his following state
procedure in making known his objection.
The "cause" and "prejudice" exception of the
Francis
rule
Page 433 U. S. 91
will afford an adequate guarantee, we think, that the rule will
not prevent a federal habeas court from adjudicating for the first
time the federal constitutional claim of a defendant who, in the
absence of such an adjudication, will be the victim of a
miscarriage of justice. Whatever precise content may be given those
terms by later cases, we feel confident in holding without further
elaboration that they do not exist here. Respondent has advanced no
explanation whatever for his failure to object at trial, [
Footnote 14] and, as the proceeding
unfolded, the trial judge is certainly not to be faulted for
failing to question the admission of the confession himself. The
other evidence of guilt presented at trial, moreover, was
substantial to a degree that would negate any possibility of actual
prejudice resulting to the respondent from the admission of his
inculpatory statement.
We accordingly conclude that the judgment of the Court of
Appeals for the Fifth Circuit must be reversed, and the cause
remanded to the United States District Court for the Middle
District of Florida with instructions to dismiss respondent's
petition for a writ of habeas corpus.
It is so ordered.
[
Footnote 1]
No written statement was offered into evidence because Sykes
refused to sign the statement once it was typed up. Tr. 35.
[
Footnote 2]
At one point early in the trial, defense counsel did object to
admission of any statements made by respondent to the police, on
the basis that the basic elements of an offense had not yet been
established. The judge ruled that the evidence could be admitted
"subject to [the crime's] being properly established later."
Id. at 16.
[
Footnote 3]
In a subsequent state habeas action, the Florida District Court
of Appeals, Second District, stated that the admissibility of the
post-arrest statements had been raised and decided on direct
appeal.
Sykes v. State, 275 So. 2d 24 (1973). The United
States District Court in the present action explicitly found to the
contrary, App. to Pet. for Cert. A-21, and respondent does not
challenge that finding.
[
Footnote 4]
Respondent expressly waived "any contention or allegation as
regards ineffective assistance of counsel" at his trial. App. A-47.
He advanced an argument challenging the jury instructions relating
to justifiable homicide, but the District Court concluded in a
single paragraph that the instructions had been adequate.
[
Footnote 5]
Rule 3.190(i):
"Motion to Suppress a Confession or Admissions Illegally
Obtained."
"(1)
Grounds. Upon motion of the defendant or upon its
own motion, the court shall suppress any confession or admission
obtained illegally from the defendant."
"(2)
Time for Filing. The motion to suppress shall be
made prior to trial unless opportunity therefor did not exist or
the defendant was not aware of the grounds for the motion, but the
court in its discretion may entertain the motion or an appropriate
objection at the trial."
"(3)
Hearing. The court shall receive evidence on any
issue of fact necessary to be decided in order to rule on the
motion."
[
Footnote 6]
For divergent discussions of the historic role of federal habeas
corpus,
compare: Hart, The Supreme Court, 1958 Term,
Foreword: The Time Chart of the Justices, 73 Harv.L.Rev. 84 (1959);
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); Bator, Finality in Criminal Law and Federal
Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 468 (1963);
Oaks, Legal History in the High Court -- Habeas Corpus, 64
Mich.L.Rev. 451 (1966); Friendly, Is Innocence Irrelevant?
Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142,
170-171 (1970); and Note, Developments in the Law -- Federal Habeas
Corpus, 83 Harv.L.Rev. 1038 (1970).
[
Footnote 7]
28 U.S.C. § 2254: '
"(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 8]
Not long after
Fay, the Court, in
Henry v.
Mississippi, 379 U. S. 443
(1965), considered the question of the adequacy of a state
procedural ground to bar direct Supreme Court review, and concluded
that failure to comply with a state contemporaneous objection rule
applying to the admission of evidence did not necessarily foreclose
consideration of the underlying Fourth Amendment claim. The state
procedural ground would be "adequate," and thus dispositive of the
case on direct appeal to the United States Supreme Court, only
where "the State's insistence on compliance with its procedural
rule serves a legitimate state interest."
Id. at
379 U. S. 447.
Because, the Court reasoned, the purposes of the contemporaneous
objection rule were largely served by the motion for a directed
verdict at the close of the State's case, enforcement of the
contemporaneous objection rule was less than essential, and
therefore lacking in the necessary "legitimacy" to make it an
adequate state ground.
Rather than searching the merits of the constitutional claim,
though, the Court remanded for determination whether a separate
adequate state ground might exist -- that is, whether petitioner
had knowingly and deliberately waived his right to object at trial
for tactical or other reasons. This was the same type of waiver
which the Court in
Fay had said must be demonstrated in
order to bar review on state procedural grounds in a federal habeas
proceeding.
[
Footnote 9]
See n 5,
supra.
[
Footnote 10]
In
Pinto v. Pierce, 389 U. S. 31,
389 U. S. 32
(1967), the Court stated:
"
Jackson v. Denno, 378 U. S. 368 (1964), held that
a defendant's constitutional rights are violated when his
challenged confession is introduced without a determination by the
trial judge of its voluntariness after an adequate hearing. . .
."
In
Lego v. Twomey, 404 U. S. 477,
404 U. S. 478
(1972), we summarized the
Jackson holding as conferring
the right to a voluntariness hearing on "a criminal defendant who
challenges the voluntariness of a confession" sought to be used
against him at trial.
[
Footnote 11]
Petitioner does not argue, and we do not pause to consider,
whether a bare allegation of a
Miranda violation, without
accompanying assertions going to the actual voluntariness or
reliability of the confession, is a proper subject for
consideration on federal habeas review, where there has been a full
and fair opportunity to raise the argument in the state proceeding.
See Stone v. Powell, 428 U. S. 465
(1976). We do not address the merits of that question because of
our resolution of the case on alternative grounds.
[
Footnote 12]
We have no occasion today to consider the
Fay rule as
applied to the facts there confronting the Court. Whether the
Francis rule should preclude federal habeas review of
claims not made in accordance with state procedure where the
criminal defendant has surrendered, other than for reasons of
tactical advantage, the right to have all of his claims of trial
error considered by a state appellate court, we leave for another
day.
The Court in
Fay stated its "knowing and deliberate
waiver" rule in language which applied not only to the waiver of
the right to appeal, but to failures to raise individual
substantive objections in the state trial. Then, with a single
sentence in a footnote, the Court swept aside all decisions of this
Court
"to the extent that [they] may be read to suggest a standard of
discretion in federal habeas corpus proceedings different from what
we lay down today. . . ."
372 U.S. at
372 U. S. 439
n. 44. We do not choose to paint with a similarly broad brush
here.
[
Footnote 13]
Responding to concerns such as these, MR. JUSTICE POWELL's
concurring opinion last Term in
Estelle v. Williams,
425 U. S. 501,
425 U. S. 513
(1976), proposed an "inexcusable procedural default" test to bar
the availability of federal habeas review where the substantive
right claimed could have been safeguarded if the objection had been
raised in a timely manner at trial.
[
Footnote 14]
In
Henry v. Mississippi, 379 U.S. at
379 U. S. 451,
the Court noted that decisions of counsel relating to trial
strategy, even when made without the consultation of the defendant,
would bar direct federal review of claims thereby forgone, except
where "the circumstances are exceptional."
Last Term, in
Estelle v. Williams, supra, the Court
reiterated the burden on a defendant to be bound by the trial
judgments of his lawyer.
"Under our adversary system, once a defendant has the assistance
of counsel the vast array of trial decisions, strategic and
tactical, which must be made before and during trial rests with the
accused and his attorney."
425 U.S. at
425 U. S.
512.
MR. CHIEF JUSTICE BURGER, concurring.
I concur fully in the judgment and in the Court's opinion. I
write separately to emphasize one point which, to me, seems of
critical importance to this case. In my view, the
Page 433 U. S. 92
"deliberate bypass" standard enunciated in
Fay v. Noia,
372 U. S. 391
(1963), was never designed for, and is inapplicable to, errors --
even of constitutional dimension -- alleged to have been committed
during trial.
In
Fay v. Noia, the Court applied the "deliberate
bypass" standard to a case where the critical procedural decision
-- whether to take a criminal appeal -- was entrusted to a
convicted defendant. Although Noia, the habeas petitioner, was
represented by counsel, he himself had to make the decision whether
to appeal or not; the role of the attorney was limited to giving
advice and counsel. In giving content to the new deliberate bypass
standard,
Fay looked to the Court's decision in
Johnson v. Zerbst, 304 U. S. 458
(1938), a case where the defendant had been called upon to make the
decision whether to request representation by counsel in his
federal criminal trial. Because, in both
Fay and
Zerbst, important rights hung in the balance of the
defendant's own decision, the Court required that a waiver
impairing such rights be a knowing and intelligent decision by the
defendant himself. As
Fay put it:
"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 . . . , then it is open to the federal court on habeas to
deny him all relief. . . ."
372 U.S. at
372 U. S.
439.
The touchstone of
Fay and
Zerbst, then, is the
exercise of volition by the defendant himself with respect to his
own federal constitutional rights. In contrast, the claim in the
case before us relates to events during the trial itself.
Typically, habeas petitioners claim that unlawfully secured
evidence was admitted,
but see Stone v. Powell,
428 U. S. 465
(1976), or that improper testimony was adduced, or that an improper
jury charge was given,
but see Henderson v. Kibbe,
431 U. S. 145,
431 U. S. 157
(1977) (BURGER, C.J., concurring in judgment),
Page 433 U. S. 93
or that a particular line of examination or argument by the
prosecutor was improper or prejudicial. But unlike
Fay and
Zerbst, preservation of this type of claim under state
procedural rules does not generally involve an assertion by the
defendant himself; rather, the decision to assert or not to assert
constitutional rights or constitutionally based objections at trial
is necessarily entrusted to the defendant's attorney, who must make
on-the-spot decisions at virtually all stages of a criminal trial.
As a practical matter, a criminal defendant is rarely, if ever, in
a position to decide, for example, whether certain testimony is
hearsay and, if so, whether it implicates interests protected by
the Confrontation Clause; indeed, it is because "
[e]ven the
intelligent and educated layman has small and sometimes no skill in
the science of law'" that we held it constitutionally required that
every defendant who faces the possibility of incarceration be
afforded counsel. Argersinger v. Hamlin, 407 U. S.
25 (1972); Gideon v. Wainwright, 372 U.
S. 335, 372 U. S. 345
(1963).
Once counsel is appointed, the day-to-day conduct of the defense
rests with the attorney. He, not the client, has the immediate --
and ultimate -- responsibility of deciding if and when to object,
which witnesses, if any, to call, and what defenses to develop. Not
only do these decisions rest with the attorney, but such decisions
must, as a practical matter, be made without consulting the client.
[
Footnote 2/1] The trial process
simply does not permit the type of frequent and protracted
interruptions which would be necessary if it were required that
clients give knowing and intelligent approval to each of the myriad
tactical decisions as a trial proceeds. [
Footnote 2/2]
Page 433 U. S. 94
Since trial decisions are of necessity entrusted to the
accused's attorney, the
Fay-
Zerbst standard of
"knowing and intelligent waiver" is simply inapplicable. The
dissent in this case, written by the author of
Fay v.
Noia, implicitly recognizes as much. According to the dissent,
Fay imposes the "knowing and intelligent waiver" standard
"where possible" during the course of the trial. In an
extraordinary modification of
Fay, MR. JUSTICE BRENNAN
would now require
"that the lawyer actually exercis[e] his expertise and judgment
in his client's service, and with his client's knowing and
intelligent participation
where possible;"
he does not intimate what guidelines would be used to decide
when or under what circumstances this would actually be "possible."
Post at
433 U. S. 116.
(Emphasis supplied.) What had always been thought the standard
governing the
accused's waiver of his own constitutional
rights the dissent would change, in the trial setting, into a
standard of conduct imposed upon the defendant's
attorney.
This vague "standard" would be unmanageable to the point of
impossibility.
The effort to read this expanded concept into
Fay is to
no avail; that case simply did not address a situation where the
defendant had to look to his lawyer for vindication of
constitutionally based interests. I would leave the core holding of
Fay where it began, and reject this illogical uprooting of
an otherwise defensible doctrine.
[
Footnote 2/1]
Only such basic decisions as whether to plead guilty, waive a
jury, or testify in one's own behalf are ultimately for the accused
to make.
See ABA Project on Standards for Criminal
Justice, The Prosecution Function and Defense Function § 5.2, pp.
237-238 (App.Draft 1971).
[
Footnote 2/2]
One is left to wonder what use there would have been to an
objection to a confession corroborated by witnesses who heard Sykes
freely admit the killing at the scene within minutes after the
shooting.
MR. JUSTICE STEVENS, concurring.
Although the Court's decision today may be read as a significant
departure from the "deliberate bypass" standard announced in
Fay v. Noia, 372 U. S. 391, I
am persuaded that the holding is consistent with the way other
federal courts have actually been applying
Fay. [
Footnote 3/1] The notion that a client
Page 433 U. S. 95
must always consent to a tactical decision not to assert a
constitutional objection to a proffer of evidence has always seemed
unrealistic to me. [
Footnote 3/2]
Conversely, if the constitutional issue is sufficiently grave, even
an express waiver by the defendant himself may sometimes be
excused. [
Footnote 3/3] Matters
such
Page 433 U. S. 96
as the competence of counsel, the procedural context in which
the asserted waiver occurred, the character of the constitutional
right at stake, and the overall fairness of the entire proceeding,
may be more significant than the language of the test the Court
purports to apply. I therefore believe the Court has wisely
refrained from attempting to give precise content to its "cause"
and "prejudice" exception to the rule of
Francis v.
Henderson, 425 U. S. 536.
[
Footnote 3/4]
In this case, I agree with the Court's holding that collateral
attack on the state court judgment should not be allowed. The
record persuades me that competent trial counsel could well have
made a deliberate decision not to object to the admission of the
respondent's in-custody statement. That statement was consistent,
in many respects, with the respondent's trial testimony. It even
had some positive value, since it portrayed the respondent as
having acted in response to provocation, which might have
influenced the jury to return a verdict on a lesser charge.
[
Footnote 3/5] To the extent that
it was damaging, the primary harm would have resulted from its
effect in impeaching the trial testimony, but it would have been
admissible for impeachment in any event,
Harris v.
New
Page 433 U. S. 97
York, 401 U. S. 222.
Counsel may well have preferred to have the statement admitted
without objection when it was first offered, rather than making an
objection which, at best, [
Footnote
3/6] could have been only temporarily successful.
Moreover, since the police fully complied with
Miranda,
the deterrent purpose of the
Miranda rule is inapplicable
to this case. Finally, there is clearly no basis for claiming that
the trial violated any standard of fundamental fairness.
Accordingly, no matter how the rule is phrased, this case is
plainly not one in which a collateral attack should be allowed. I
therefore join the opinion of the Court.
[
Footnote 3/1]
The suggestion in
Fay, 372 U.S. at
372 U. S. 439,
that the decision must be made personally by the defendant has not
fared well,
see United States ex rel. Cruz v. LaVallee,
448 F.2d 671, 679 (CA2 1971);
United States ex rel. Green v.
Rundle, 452 F.2d 232, 236 (CA3 1971), although a decision by
counsel may not be binding if made over the objection of the
defendant,
Paine v. McCarthy, 527 F.2d 173, 175-176 (CA9
1975). Courts have generally found a "deliberate bypass" where
counsel could reasonably have decided not to object,
United
States ex rel. Terry v. Henderson, 462 F.2d 1125, 1129 (CA2
1972);
Whitney v. United States, 513 F.2d 326, 329 (CA8
1974);
United States ex rel. Broaddus v. Rundle, 429 F.2d
791, 795 (CA3 1970), but they have not found a bypass when they
consider the right "deeply embedded" in the Constitution,
Frazier v. Roberts, 441 F.2d 1224, 1230 (CA8 1971), or
when the procedural default was not substantial,
Minor v.
Black, 527 F.2d 1, 5 n. 3 (CA6 1975);
Black v. Beto,
382 F.2d 758, 760 (CA5 1967). Sometimes, even a deliberate choice
by trial counsel has been held not to be a "deliberate bypass" when
the result would be unjust,
Moreno v. Beto, 415 F.2d 154
(CA5 1969). In short, the actual disposition of these cases seems
to rest on the court's perception of the totality of the
circumstances, rather than on mechanical application of the
"deliberate bypass" test.
[
Footnote 3/2]
"If counsel is to have the responsibility for conducting a
contested criminal trial, quite obviously he must have the
authority to make important tactical decisions promptly as a trial
progresses. The very reasons why counsel's participation is of such
critical importance in assuring a fair trial for the defendant,
see Powell v. Alabama, 287 U. S. 45,
287 U. S.
68-69, . . . make it inappropriate to require that his
tactical decisions always be personally approved, or even
thoroughly understood, by his client. Unquestionably, assuming the
lawyer's competence, the client must accept the consequences of his
trial strategy. A rule which would require the client's
participation in every decision to object, or not to object, to
proffered evidence would make a shambles of orderly procedure."
United States ex rel. Allum v. Twomey, 484 F.2d 740,
744-745 (CA7 1973).
[
Footnote 3/3]
The test announced in
Fay was not actually applied in
that case. The Court held that habeas relief was available
notwithstanding the client's participation in the waiver decision,
and notwithstanding the fact that the decision was made on a
tactical basis. The client apparently feared that the State might
be able to convict him even without the use of his confession, and
that he might be sentenced to death if reconvicted.
See
Fay,
supra at
372 U. S. 397
n. 3, 440.
[
Footnote 3/4]
As
Fay v. Noia, supra at
372 U. S. 438,
makes clear, we are concerned here with a matter of equitable
discretion, rather than a question of statutory authority, and
equity has always been characterized by its flexibility and regard
for the necessities of each case,
cf. Swann v.
Charlotte-Mecklenburg Board of Education, 402 U. S.
1,
402 U. S. 15.
[
Footnote 3/5]
According to the statement the respondent made to the police,
the victim came into his trailer, picked up his shotgun, and played
with it; they quarreled and the victim cut the respondent's hand
with a knife; then the victim left the trailer and made an
insulting gesture, at which time the respondent shot him. Other
evidence established that respondent was quite drunk at the time.
The primary difference between this and the respondent's trial
testimony was that, at trial, the respondent testified that the
victim had threatened him before leaving the trailer, and had
turned and started toward the respondent just before the
shooting.
[
Footnote 3/6]
The objection was weak, since the police officers gave the
respondent the appropriate warnings. His claim that he was too
intoxicated to understand the warnings is not only implausible, but
also somewhat inconsistent with any attempt to give credibility to
his trial testimony, which necessarily required recollection of the
circumstances surrounding the shooting.
MR. JUSTICE WHITE, concurring in the judgment.
Under the Court's cases a state conviction will survive
challenge in federal habeas corpus not only when there has been a
deliberate bypass within the meaning of
Fay v. Noia,
372 U. S. 391
(1963), but also when the alleged constitutional error is harmless
beyond a reasonable doubt within the intendment of
Harrington
v. California, 395 U. S. 250
(1969), and similar cases. The petition for habeas corpus of
respondent Sykes alleging the violation of his constitutional
rights by the admission of certain evidence should be denied if the
alleged error is deemed harmless. This would be true even had there
been proper objection to the evidence and no procedural default
whatsoever by either respondent or his counsel.
Milton v.
Wainwright, 407 U. S. 371
(1972).
It is thus of some moment to me that the Court makes its own
assessment of the record, and itself declares that the evidence of
guilt in this case is sufficient to "negate any possibility of
actual prejudice resulting to the respondent from the
Page 433 U. S. 98
admission of his inculpatory statement."
Ante at
433 U. S. 91.
This appears to be tantamount to a finding of harmless error under
the
Harrington standard, and is itself sufficient to
foreclose the writ and to warrant reversal of the judgment.
This would seem to obviate consideration of whether, in the
light of
Davis v. United States, 411 U.
S. 233 (1973), and
Francis v. Henderson,
425 U. S. 536
(1976), the deliberate bypass rule of
Fay v. Noia, supra,
should be further modified with respect to those occasions during
trial where the defendant does not comply with the contemporaneous
objection rule when evidence is offered, but later seeks federal
habeas corpus, claiming that admitting the evidence violated his
constitutional rights. The Court nevertheless deals at length with
this issue, and it is not inappropriate for me to add the following
comments.
In terms of the necessity for Sykes to show prejudice, it seems
to me that the harmless error rule provides ample protection to the
State's interest. If a constitutional violation has been shown and
there has been no deliberate bypass -- at least as I understand
that rule as applied to alleged trial lapses of defense counsel --
I see little if any warrant, having in mind the State's burden of
proof, not to insist upon a showing that the error was harmless
beyond a reasonable doubt. As long as there is acceptable cause for
the defendant's not objecting to the evidence, there should not be
shifted to him the burden of proving specific prejudice to the
satisfaction of the habeas corpus judge.
With respect to the necessity to show cause for noncompliance
with the state rule, I think the deliberate bypass rule of
Fay
v. Noia affords adequate protection to the State's interest in
insisting that defendants not flout the rules of evidence. The
bypass rule, however, as applied to events occurring during trial,
cannot always demand that the defendant himself concur in counsel's
judgment. Furthermore, if counsel is aware of the facts and the law
(here the contemporaneous
Page 433 U. S. 99
objection rule and the relevant constitutional objection that
might be made) and yet decides not to object because he thinks the
objection is unfounded, would damage his client's case, or for any
other reason that flows from his exercise of professional judgment,
there has been, as I see it, a deliberate bypass. It will not later
suffice to allege in federal habeas corpus that counsel was
mistaken, unless it is "plain error" appearing on the record or
unless the error is sufficiently egregious to demonstrate that the
services of counsel were not "within the range of competence
demanded of attorneys in criminal cases."
McMann v.
Richardson, 397 U. S. 759,
397 U. S. 771
(1970). Other reasons not amounting to deliberate bypass, such as
ignorance of the applicable rules, would be sufficient to excuse
the failure to object to evidence offered during trial.
I do agree that it is the burden of the habeas corpus petitioner
to negative deliberate bypass and explain his failure to object.
Sykes did neither here, and I therefore concur in the judgment.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins,
dissenting.
Over the course of the last decade, the deliberate bypass
standard announced in
Fay v. Noia, 372 U.
S. 391,
372 U. S.
438-439 (1963), has played a central role in efforts by
the federal judiciary to accommodate the constitutional rights of
the individual with the States' interests in the integrity of their
judicial procedural regimes. The Court today decides that this
standard should no longer apply with respect to procedural defaults
occurring during the trial of a criminal defendant. In its place,
the Court adopts the two-part "cause" and "prejudice" test
originally developed in
Davis v. United States,
411 U. S. 233
(1973), and
Francis v. Henderson, 425 U.
S. 536 (1976). As was true with these earlier cases,
[
Footnote 4/1]
Page 433 U. S. 100
however, today's decision makes no effort to provide concrete
guidance as to the content of those terms. More particularly, left
unanswered is the thorny question that must be recognized to be
central to a realistic rationalization of this area of law: how
should the federal habeas court treat a procedural default in a
state court that is attributable purely and simply to the error or
negligence of a defendant's trial counsel? Because this key issue
remains unresolved, I shall attempt in this opinion a reexamination
of the policies [
Footnote 4/2] that
should
Page 433 U. S. 101
inform -- and, in
Fay, did inform -- the selection of
the standard governing the availability of federal habeas corpus
jurisdiction in the face of an intervening procedural default in
the state court.
I
I begin with the threshold question: what is the meaning and
import of a procedural default? If it could be assumed that a
procedural default, more often than not, is the product of a
defendant's conscious refusal to abide by the duly constituted,
legitimate processes of the state courts, then I might agree that a
regime of collateral review weighted in favor of a State's
procedural rules would be warranted. [
Footnote 4/3]
Fay, however, recognized that
such rarely is the case, and therein lies
Fay's basic
unwillingness to embrace a view of habeas jurisdiction that results
in "an airtight system of [procedural] forfeitures." 372 U.S. at
372 U. S.
432.
This, of course, is not to deny that there are times when the
failure to heed a state procedural requirement stems from an
intentional decision to avoid the presentation of constitutional
claims to the state forum.
Fay was not insensitive to this
possibility. Indeed, the very purpose of its bypass test is to
detect and enforce such intentional procedural
Page 433 U. S. 102
forfeitures of outstanding constitutionally based claims.
Fay does so through application of the longstanding rule
used to test whether action or inaction on the part of a criminal
defendant should be construed as a decision to surrender the
assertion of rights secured by the Constitution: to be an effective
waiver, there must be "an intentional relinquishment or abandonment
of a known right or privilege."
Johnson v. Zerbst,
304 U. S. 458,
304 U. S. 464
(1938). Incorporating this standard,
Fay recognized that,
if one
"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. . .
."
372 U.S. at
372 U. S. 439.
For this reason, the Court's assertion that it "think[s]" that the
Fay rule encourages intentional "sandbagging" on the part
of the defense lawyers is without basis,
ante at
433 U. S. 89;
certainly the Court points to no cases or commentary arising during
the past 15 years of actual use of the
Fay test to support
this criticism. Rather, a consistent reading of case law
demonstrates that the bypass formula has provided a workable
vehicle for protecting the integrity of state rules in those
instances when such protection would be both meaningful and just.
[
Footnote 4/4]
Page 433 U. S. 103
But having created the bypass exception to the availability of
collateral review,
Fay recognized that intentional,
tactical forfeitures are not the norm upon which to build a
rational system of federal habeas jurisdiction. In the ordinary
case, litigants simply have no incentive to slight the state
tribunal, since constitutional adjudication on the state and
federal levels are not mutually exclusive.
Brown v. Allen,
344 U. S. 443
(1953);
Brewer v. Williams, 430 U.
S. 387 (1977);
Castaneda v. Partida,
430 U. S. 482
(1977). Under the regime of collateral review recognized since the
days of
Brown v. Allen and enforced by the
Fay
bypass test, no rational lawyer would risk the "sandbagging" feared
by the Court. [
Footnote 4/5] If a
constitutional challenge is not properly raised
Page 433 U. S. 104
on the state level, the explanation generally will be found
elsewhere than in an intentional tactical decision.
In brief then, any realistic system of federal habeas corpus
jurisdiction must be premised on the reality that the ordinary
procedural default is born of the inadvertence, negligence,
inexperience, or incompetence of trial counsel.
See, e.g.,
Hill, The Inadequate State Ground, 65 Colum.L.Rev. 943, 997 (1965).
The case under consideration today is typical. The Court makes no
effort to identify a tactical motive for the failure of Sykes'
attorney to challenge the admissibility or reliability of a highly
inculpatory statement. While my Brother STEVENS finds a possible
tactical advantage, I agree with the Court of Appeals that this
reading is most implausible:
"We can find no possible advantage which the defense might have
gained, or thought they might gain, from the failure to conform
with Florida Criminal Procedure Rule 3.190(i)."
528 F.2d 522, 527 (1976). Indeed, there is no basis for
inferring that Sykes or his state trial lawyer was even aware of
the existence of his claim under the Fifth Amendment; for this is
not a case where the trial judge expressly drew the attention of
the defense to a possible constitutional contention or procedural
requirement,
e.g., Murch v. Mottram, 409 U. S.
41 (1972);
cf. Henry v. Mississippi,
379 U. S. 443,
379 U. S. 448
n. 3 (1965), or where the defense signals its knowledge of a
constitutional claim by abandoning a challenge previously raised,
e.g., Sanders v. United States, 373 U. S.
1,
Page 433 U. S. 105
373 U. S. 18
(1963). Rather, any realistic reading of the record demonstrates
that we are faced here with a lawyer's simple error. [
Footnote 4/6]
Fay's answer thus is plain: the bypass test simply
refuses to credit what is essentially a lawyer's mistake as a
forfeiture of constitutional rights. I persist in the belief that
the interests of Sykes and the State of Florida are best
rationalized by adherence to this test, and by declining to react
to inadvertent defaults through the creation of an "airtight system
of forfeitures."
II
What are the interests that Sykes can assert in preserving the
availability of federal collateral relief in the face of his
inadvertent state procedural default? Two are paramount.
As is true with any federal habeas applicant, Sykes seeks access
to the federal court for the determination of the validity of his
federal constitutional claim. Since at least
Brown v.
Allen, it has been recognized that the "fair effect [of] the
habeas corpus jurisdiction as enacted by Congress" entitles a state
prisoner to such federal review. 344 U.S. at
344 U. S. 500
(opinion of Frankfurter, J.). While some of my Brethren may feel
uncomfortable with this congressional choice of policy,
see,
e.g., Stone v. Powell, 428 U. S. 465
(1976), the Legislative Branch nonetheless remains entirely free to
determine that the constitutional rights of an individual subject
to state custody, like those of the civil rights
Page 433 U. S. 106
plaintiff suing under 42 U.S.C. § 1983, are best preserved by
"interpos[ing] the federal courts between the States and the
people, as guardians of the people's federal rights. . . ."
Mitchum v. Foster, 407 U. S. 225,
407 U. S. 242
(1972).
With respect to federal habeas corpus jurisdiction, Congress
explicitly chose to effectuate the federal court's primary
responsibility for preserving federal rights and privileges by
authorizing the litigation of constitutional claims and defenses in
a district court after the State vindicates its own interest
through trial of the substantive criminal offense in the state
courts. [
Footnote 4/7] This, of
course, was not the only course that Congress might have followed:
as an alternative, it might well have decided entirely to
circumvent all state procedure through the expansion of existing
federal removal statutes such as 28 U.S.C. §§ 1442(a)(1) and 1443,
thereby authorizing the pretrial transfer of all state criminal
cases to the federal courts whenever federal defenses or claims are
in issue. [
Footnote 4/8] But
liberal post-trial federal review is the redress
Page 433 U. S. 107
that Congress ultimately chose to allow and the consequences of
a state procedural default should be evaluated in conformance with
this policy choice. Certainly we can all agree that, once a state
court has assumed jurisdiction of a criminal case, the integrity of
its own process is a matter of legitimate concern. The
Fay
bypass test, by seeking to discover intentional abuses of the rules
of the state forum, is, I believe, compatible with this state
institutional interest.
See 433 U.
S. infra. But whether
Fay was correct
in penalizing a litigant solely for his intentional forfeitures
properly must be read in light of Congress' desired norm of widened
post-trial access to the federal courts. If the standard adopted
today is later construed to require that the simple mistakes of
attorneys are to be treated as binding forfeitures, it would serve
to subordinate the fundamental rights contained in our
constitutional charter to inadvertent defaults of rules promulgated
by state agencies, and would essentially leave it to the States,
through the enactment of procedure and the certification of the
competence of local attorneys, to determine whether a habeas
applicant will be permitted the access to the federal forum that is
guaranteed him by Congress [
Footnote
4/9]
Page 433 U. S. 108
Thus, I remain concerned that undue deference to local procedure
can only serve to undermine the ready access to a federal court to
which a state defendant otherwise is entitled. But federal review
is not the full measure of Sykes' interest, for there is another of
even greater immediacy: assuring that his constitutional claims can
be addressed to some court. For the obvious consequence of barring
Sykes from the federal courthouse is to insulate Florida's alleged
constitutional violation from any and all judicial review because
of a lawyer's mistake. From the standpoint of the habeas
petitioner, it is a harsh rule indeed that denies him "any review
at all where the state has granted none,"
Brown v. Allen,
344 U.S. at
344 U. S. 552
(Black, J., dissenting) -- particularly when he would have enjoyed
both state and federal consideration had his attorney not
erred.
Fay's answer to Sykes' predicament, measuring the
existence and extent of his procedural waiver by the
Zerbst standard is, I submit, a realistic one. The Fifth
Amendment assures that no person "shall be compelled in any
criminal case to be a witness against himself. . . ." A defendant
like Sykes can forgo this protection in two ways: he may decide to
waive his substantive self-incrimination right at the point that he
gives an inculpatory statement to the police authorities,
Miranda v. Arizona, 384 U. S. 436,
384 U. S. 478
(1966), or he and his attorney may choose not to challenge the
admissibility of an incriminating statement when such a challenge
would be effective under state trial procedure.
See Estelle v.
Williams, 425 U. S. 501,
425 U. S. 524
(1976) (dissenting opinion). With few exceptions in the past 40
years,
e.g., Estelle v. Williams, supra; Schneckloth v.
Bustamonte, 412 U. S. 218
(1973), this Court has required that the substantive waiver, to be
valid, must be a knowing and intelligent one.
Page 433 U. S. 109
See, e.g., Brewer v. Williams, 430 U.S. at
430 U. S. 404;
Brookhart v. Janis, 384 U. S. 1,
384 U. S. 4
(1966);
Escobedo v. Williams, 378 U.
S. 478,
378 U. S. 490
n. 14 (1964);
Green v. United States, 355 U.
S. 184,
355 U. S.
191-192 (1957);
Smith v. United States,
337 U. S. 137,
337 U. S.
149-150 (1949);
Adams v. United States ex rel.
McCann, 317 U. S. 269,
317 U. S. 275
(1942). It has long been established that such is the case for the
waiver of the protections of the
Miranda rule.
See 384 U.S. at
384 U. S. 475;
Schneckloth v. Bustamonte, supra at
412 U. S. 240.
Fay simply evaluates the procedural waiver of Sykes' Fifth
Amendment rights by the same standard.
From the standpoint of the habeas petitioner, this symmetry is
readily understandable. To him, the inevitable consequence of
either type of forfeiture -- be it substantive or procedural -- is
that the protection of the Fifth Amendment is lost and his own
words are introduced at trial to the prejudice of his defense. The
defendant's vital interest in preserving his Fifth Amendment
privilege entitles him to informed and intelligent consideration of
any decision leading to its forfeiture. It may be, of course, that
the State's countervailing institutional interests are more
compelling in the case of eliciting a procedural default, thereby
justifying a relaxation of the
Zerbst standard. I discuss
this possibility in greater detail in
433 U.
S. infra. It is sufficient for present
purposes, however, that there is no reason for believing that this
necessarily is true. That the State legitimately desires to
preserve an orderly and efficient judicial process is undeniable.
But similar interests of efficiency and the like also can be
identified with respect to other state institutions, such as its
law enforcement agencies. Yet, as was only recently reconfirmed, we
would not permit and have not permitted the state police to enhance
the orderliness and efficiency of their law enforcement activities
by embarking on a campaign of acquiring inadvertent waivers of
important constitutional rights,
Brewer v. Williams, supra
at
430 U. S.
401-406;
see generally Francis v. Henderson,
425 U.S. at
425 U. S.
548-549, n. 2 (dissenting opinion).
Page 433 U. S. 110
A procedural default should be treated accordingly. Indeed, a
recent development in the law of habeas corpus suggests that
adherence to the deliberate bypass test may be more easily
justified today than it was when
Fay was decided. It also
suggests that the "prejudice" prong of the Court's new test may
prove to be a redundancy. Last Term, the Court ruled that alleged
violations of the Fourth Amendment in most circumstances no longer
will be cognizable in habeas corpus.
Stone v. Powell,
428 U. S. 465
(1976). While, for me, the principle that generated this conclusion
was not readily apparent, I expressed my concern that the
Stone decision contains the seeds for the exclusion from
collateral review of a variety of constitutional rights that my
Brethren somehow deem to be unimportant -- perhaps those that they
are able to conclude are not "guilt-related."
See id. at
428 U. S.
517-518 (dissenting opinion). If this trail is to be
followed, it would be quite unthinkable that an unintentional
procedural default should be allowed to stand in the way of
vindication of constitutional rights bearing upon the guilt or
innocence of a defendant. Indeed, if, as has been argued, a key to
decision in this area turns upon a comparison of the importance of
the constitutional right at stake with the state procedural rule,
Sandalow,
Henry v. Mississippi and the Adequate State
Ground: Proposals for a Revised Doctrine, 1965 Sup.Ct.Rev. 187,
236-237, then the Court's threshold effort to identify those rights
of sufficient importance to be litigated collaterally should
largely predetermine the outcome of this balance.
In sum, I believe that
Fay's commitment to enforcing
intentional but not inadvertent procedural defaults offers a
realistic measure of protection for the habeas corpus petitioner
seeking federal review of federal claims that were not litigated
before the State. The threatened creation of a more "airtight
system of forfeitures" would effectively deprive habeas petitioners
of the opportunity for litigating
Page 433 U. S. 111
their constitutional claims before any forum, and would
disparage the paramount importance of constitutional rights in our
system of government. Such a restriction of habeas corpus
jurisdiction should be countenanced, I submit, only if it fairly
can be concluded that
Fay's focus on knowing and voluntary
forfeitures unduly interferes with the legitimate interests of
state courts or institutions. The majority offers no suggestion
that actual experience has shown that
Fay's bypass test
can be criticized on this score. And, as I now hope to demonstrate,
any such criticism would be unfounded.
III
A regime of federal habeas corpus jurisdiction that permits the
reopening of state procedural defaults does not invalidate any
state procedural rule as such; [
Footnote 4/10] Florida's courts remain entirely free to
enforce their own rules as they choose, and to deny any and all
state rights and remedies to a defendant who fails to comply with
applicable state procedure. The relevant inquiry is whether more is
required -- specifically, whether the fulfillment of important
interests of the State necessitates that federal courts be called
upon to impose additional sanctions for inadvertent noncompliance
with state procedural requirements such as the contemporaneous
objection rule involved here.
Page 433 U. S. 112
Florida, of course, can point to a variety of legitimate
interests in seeking allegiance to its reasonable procedural
requirements, the contemporaneous objection rule included.
See
Henry v. Mississippi, 379 U.S. at
379 U. S. 448.
As
Fay recognized, a trial, like any organized activity,
must conform to coherent process, and "there must be sanctions for
the flouting of such procedure." 372 U.S. at
372 U. S. 431.
The strict enforcement of procedural defaults, therefore, may be
seen as a means of deterring any tendency on the part of the
defense to slight the state forum, to deny state judges their due
opportunity for playing a meaningful role in the evolving task of
constitutional adjudication, or to mock the needed finality of
criminal trials. All of these interests are referred to by the
Court in various forms. [
Footnote
4/11]
The question remains, however, whether any of these policies or
interests are efficiently and fairly served by enforcing both
intentional and inadvertent defaults pursuant to the identical
stringent standard. I remain convinced that, when one pierces the
surface justifications for a harsher rule posited by the Court, no
standard stricter than
Fay's deliberate bypass test is
realistically defensible.
Page 433 U. S. 113
Punishing a lawyer's unintentional errors by closing the federal
courthouse door to his client is both a senseless and misdirected
method of deterring the slighting of state rules. It is senseless
because unplanned and unintentional action of any kind generally is
not subject to deterrence; and, to the extent that it is hoped that
a threatened sanction addressed to the defense will induce greater
care and caution on the part of trial lawyers, thereby forestalling
negligent conduct or error, the potential loss of all valuable
state remedies would be sufficient to this end. [
Footnote 4/12] And it is a misdirected sanction
because, even if the penalization of incompetence or carelessness
will encourage more thorough legal training and trial preparation,
the habeas applicant, as opposed to his lawyer, hardly is the
proper recipient of such a penalty. Especially with fundamental
constitutional rights
Page 433 U. S. 114
at stake, no fictional relationship of principal-agent or the
like can justify holding the criminal defendant accountable for the
naked errors of his attorney. [
Footnote 4/13] This is especially true when so many
indigent defendants are without any realistic choice in selecting
who ultimately represents them at trial. [
Footnote 4/14] Indeed, if responsibility for error must
be apportioned between the parties, it is the State, through its
attorney's admissions and certification policies, that is more
fairly held to blame for the fact that practicing lawyers too often
are ill-prepared or ill-equipped to act carefully and knowledgeably
when faced with decisions governed by state procedural
requirements
Page 433 U. S. 115
Hence, while I can well agree that the proper functioning of our
system of criminal justice, both federal and state, necessarily
places heavy reliance on the professionalism and judgment of trial
attorneys, I cannot accept a system that ascribes the absolute
forfeiture of an individual's constitutional claims to situations
where his lawyer manifestly exercises no professional judgment at
all -- where carelessness, mistake, or ignorance is the explanation
for a procedural default. Of course, it is regrettable that certain
errors that might have been cured earlier had trial counsel acted
expeditiously must be corrected collaterally and belatedly. I can
understand the Court's wistfully wishing for the day when the trial
was the sole, binding and final "event" of the adversarial process
-- although I hesitate to agree that, in the eyes of the criminal
defendant, it has ever ceased being the "main" one,
ante
at
433 U. S. 90.
But it should be plain that, in the real world, the interest in
finality is repeatedly compromised in numerous ways that arise with
far greater frequency than do procedural defaults. The federal
criminal system, to take one example, expressly disapproves of
interlocutory review in the generality of cases even though such a
policy would foster finality by permitting the authoritative
resolution of all legal and constitutional issues prior to the
convening of the "main event."
See generally Abney v. United
States, 431 U. S. 651
(1977). Instead, it relies on the belated correction of error,
through appeal and collateral review, to ensure the fairness and
legitimacy of the criminal sanction. Indeed, the very existence of
the well established right collaterally to reopen issues previously
litigated before the state courts,
Brown v. Allen,
344 U. S. 443
(1953), represents a congressional policy choice that is
inconsistent with notions of strict finality -- and probably more
so than authorizing the litigation of issues that, due to
inadvertence, were never addressed to any court. Ultimately, all of
these limitations on the finality of criminal convictions emerge
from the tension between justice
Page 433 U. S. 116
and efficiency in a judicial system that hopes to remain true to
its principles and ideals. Reasonable people may disagree on how
best to resolve these tensions. But the solution that today's
decision risks embracing seems to me the most unfair of all: the
denial of any judicial consideration of the constitutional claims
of a criminal defendant because of errors made by his attorney
which lie outside the power of the habeas petitioner to prevent or
deter and for which, under no view of morality or ethics, can he be
held responsible.
In short, I believe that the demands of our criminal justice
system warrant visiting the mistakes of a trial attorney on the
head of a habeas corpus applicant only when we are convinced that
the lawyer actually exercised his expertise and judgment in his
client's service, and with his client's knowing and intelligent
participation where possible. This, of course, is the precise
system of habeas review established by
Fay v. Noia.
IV
Perhaps the primary virtue of
Fay is that the bypass
test at least yields a coherent yardstick for federal district
courts in rationalizing their power of collateral review.
See 433 U.S.
72fn4/4|>n. 4,
supra. In contrast, although some
four years have passed since its introduction in
Davis v.
United States, 411 U. S. 233
(1973), the only thing clear about the Court's "cause" and
"prejudice" standard is that it exhibits the notable tendency of
keeping prisoners in jail without addressing their constitutional
complaints. Hence, as of today, all we know of the "cause" standard
[
Footnote 4/15] is its
requirement that habeas applicants bear an undefined burden of
explanation for the failure to obey the state rule,
ante
at
433 U. S. 91.
Left unresolved is whether a habeas petitioner like Sykes can
adequately discharge this burden by
Page 433 U. S. 117
offering the commonplace and truthful explanation for his
default: attorney ignorance or error beyond the client's control.
The "prejudice" inquiry, meanwhile, appears to bear a strong
resemblance to harmless error doctrine.
Compare ante at
433 U. S. 91,
with Chapman v. California, 386 U. S.
18,
386 U. S. 24
(1967). I disagree with the Court's appraisal of the harmlessness
of the admission of respondent's confession, but if this is what is
meant by prejudice, respondent's constitutional contentions could
be as quickly and easily disposed of in this regard by permitting
federal courts to reach the merits of his complaint. In the absence
of a persuasive alternative formulation to the bypass test, I would
simply affirm the judgment of the Court of Appeals and allow Sykes
his day in court on the ground that the failure of timely objection
in this instance was not a tactical or deliberate decision, but
stemmed from a lawyer's error that should not be permitted to bind
his client.
One final consideration deserves mention. Although the standards
recently have been relaxed in various jurisdictions, [
Footnote 4/16] it is accurate to assert
that most courts, this one included, [
Footnote 4/17] traditionally have resisted any
realistic inquiry into the competency of trial counsel. There is
nothing unreasonable,
Page 433 U. S. 118
however, in adhering to the proposition that it is the
responsibility of a trial lawyer who takes on the defense of
another to be aware of his client's basic legal rights and of the
legitimate rules of the forum in which he practices his profession.
[
Footnote 4/18] If he should
unreasonably permit such rules to bar the assertion of the
colorable constitutional claims of his client, then his conduct may
well fall below the level of competence that can fairly be expected
of him. [
Footnote 4/19] For
almost 40 years, it has been established that inadequacy of counsel
undercuts the very competence and jurisdiction of the trial court,
and is always open to collateral review.
Johnson v.
Zerbst, 304 U. S. 458
(1938). [
Footnote 4/20]
Obviously, as a practical matter, a trial counsel cannot
procedurally waive his own inadequacy. If the scope of habeas
jurisdiction previously governed by
Fay v. Noia is to be
redefined so as to enforce the errors and neglect of lawyers with
unnecessary and unjust rigor, the time may come when conscientious
and fair-minded federal and state courts, in adhering to the
teaching of
Johnson v. Zerbst, will have to reconsider
whether they can continue to indulge the comfortable fiction that
all lawyers are skilled or even competent craftsmen in representing
the fundamental rights of their clients.
[
Footnote 4/1]
The Court began its retreat from the deliberate bypass standard
of
Fay in
Davis v. United States, where a
congressional intent to restrict the bypass formulation with
respect to collateral review under 28 U.S.C. § 2255 was found to
inhere in Fed.Rule Crim.Proc. 12(b)(2). By relying upon Congress'
purported intent,
Davis managed to evade any consideration
of the justifications and any shortcomings of the bypass test.
Subsequently, in
Francis v. Henderson, a controlling
congressional expression of intent no longer was available, and the
Court therefore employed the shibboleth of "considerations of
comity and federalism" to justify application of
Davis to
a § 2254 proceeding. 425 U.S. at
425 U. S. 51.
Again, any coherent analysis of the bypass standard or the
waivability of constitutional rights was avoided -- as it was that
same day in
Estelle v. Williams, 425 U.
S. 501 (1976), which proceeded to find a surrender of a
constitutional right in an opinion that was simply oblivious to
some 40 years of existing case law.
See infra at
433 U. S.
108-109. Thus, while today's opinion follows from
Davis, Francis, and
Estelle, the entire edifice
is a mere house of cards whose foundation has escaped any
systematic inspection.
[
Footnote 4/2]
I use the term "policies" advisedly, for it is important to
recognize the area of my disagreement with the Court. This Court
has never taken issue with the foundation principle established by
Fay v. Noia -- that, in considering a petition for the
writ of habeas corpus, federal courts possess the power to look
beyond a state procedural forfeiture in order to entertain the
contention that a defendant's constitutional rights have been
abridged. 372 U.S. at
372 U. S.
398-399. Indeed, only last Term, the Court reiterated:
"There can be no question of a federal district court's power to
entertain an application for a writ of habeas corpus in a case such
as this."
Francis v. Henderson, 425 U.S. at
425 U. S. 538.
Today's decision reconfirms this federal power by authorizing
federal intervention under the "cause" and "prejudice" test. Were
such power unavailable, federal courts would be bound by Fla.Rule
Crim.Proc. 3.190, which contains no explicit provision for relief
from procedural defaults. Our disagreement, therefore, centers upon
the standard that should govern a federal district court in the
exercise of this power to adjudicate the constitutional claims of a
state prisoner -- which, in turn, depends upon an evaluation of the
competing policies and values served by collateral review weighted
against those furthered through strict deference to a State's
procedural rules.
It is worth noting that, because we deal with the standards
governing the exercise of the conceded power of federal habeas
courts to excuse a state procedural default, Congress, as the
primary expositor of federal court jurisdiction, remains free to
undo the potential restrictiveness of today's decision by expressly
defining the standard of intervention under 28 U.S.C. § 2254.
Cf. Davis v. United States, 411 U.S. at
411 U. S.
241-242.
[
Footnote 4/3]
Even this concession to procedure would, in my view, be
unnecessary so long as the habeas court is capable of
distinguishing between intentional and inadvertent defaults with
acceptable accuracy -- as I believe it can.
See 433 U.S.
72fn4/4|>n. 4,
infra.
[
Footnote 4/4]
Over the years, this Court has without notable difficulty
applied the
Fay rule to a variety of contexts.
E.g.,
Lefkowitz v. Newsome, 420 U. S. 283
(1975);
Humphrey v. Cady, 405 U.
S. 504,
405 U. S. 517
(1972);
Anderson v. Nelson, 390 U.
S. 523,
390 U. S. 525
(1968);
Warden v. Hayden, 387 U.
S. 294,
387 U. S. 297
n. 3 (1967);
cf. Chambers v. Mississippi, 410 U.
S. 284,
410 U. S. 290
n. 3 (1973). Similarly, the standard has been capable of
intelligent application by the lower federal courts in order to bar
the collateral reconsideration of tactical decisions by the
defense,
e.g., United States ex rel. Green v. Rundle, 452
F.2d 232, 236 (CA3 1971) (counsel concedes tactical decision);
Whitney v. United States, 513 F.2d 326, 329 (CA8 1974)
(counsel forgoes challenge to seized evidence in order to avoid
concession of any possessory interest in searched premises), while
otherwise permitting federal review,
Henderson v. Kibbe,
534 F.2d 493, 496-497 (CA2 1976),
rev'd on other grounds,
431 U. S. 431 U.S.
145 (1977);
Paine v. McCarthy, 527 F.2d 173 (CA9 1975).
And in cases similar to the present one where Fifth Amendment
violations were in issue,
Fay has afforded a meaningful
standard governing the scope of federal collateral review.
Compare United States ex rel. Terry v. Henderson, 462 F.2d
1125, 1129 (CA2 1972) (bypass found where counsel relied on
confession to rebut premeditation in murder trial);
and United
States ex rel. Cruz v. LaVallee, 448 F.2d 671, 679 (CA2 1971)
(bypass found where trial strategy called for confessing to killing
but arguing that mitigating circumstances exist),
with Moreno
v. Beto, 415 F.2d 154 (CA5 1969) (defense not held to bypass
where defense counsel deliberately chose not to raise and submit
voluntariness issue to jury due to unwillingness to expose client
to unconstitutional procedure).
[
Footnote 4/5]
In brief, the defense lawyer would face two options: (1) he
could elect to present his constitutional claims to the state
courts in a proper fashion. If the state trial court is persuaded
that a constitutional breach has occurred, the remedies dictated by
the Constitution would be imposed, the defense would be bolstered,
and the prosecution accordingly weakened, perhaps precluded
altogether. If the state court rejects the properly tendered
claims, the defense has lost nothing: appellate review before the
state courts and federal habeas consideration are preserved. (2) He
could elect to "sandbag." This presumably means, first, that he
would hold back the presentation of his constitutional claim to the
trial court, thereby increasing the likelihood of a conviction,
since the prosecution would be able to present evidence that, while
arguably constitutionally deficient, may be highly prejudicial to
the defense. Second, he would thereby have forfeited all state
review and remedies with respect to these claims (subject to
whatever "plain error" rule is available). Third, to carry out his
scheme, he would now be compelled to deceive the federal habeas
court and to convince the judge that he did not "deliberately
bypass" the state procedures. If he loses on this gamble, all
federal review would be barred, and his "sandbagging" would have
resulted in nothing but the forfeiture of all judicial review of
his client's claims. The Court, without substantiation, apparently
believes that a meaningful number of lawyers are induced into
option 2 by
Fay. I do not. That belief simply offends
common sense.
[
Footnote 4/6]
The likelihood that we are presented with a lawyer's simple
mistake is not answered by respondent's stipulation to his trial
counsel's competency. At oral argument, it was made clear that
Sykes so stipulated solely because of the position expressed by the
habeas court that a challenge to his prior legal representation
would require the return to the state courts and the further
exhaustion of state remedies, a detour that respondent insisted on
avoiding. Tr. of Oral Arg. 49. Furthermore, in light of the
prevailing standards, or lack of standards, for judging the'
competency of trial counsel,
see infra at
433 U. S. 117,
it is perfectly consistent for even a lawyer who commits a grievous
error -- whether due to negligence or ignorance -- to be deemed to
have provided competent representation
[
Footnote 4/7]
Congress' grant of post-trial access to the federal courts was
reconfirmed by its modification of 28 U.S.C. § 2254 following our
decisions in
Fay and
Townsend v. Sain,
372 U. S. 293
(1963). This legislative amendment of the habeas statute
essentially embraced the relitigation standards outlined in
Townsend without altering the broad framework for
collateral review contained in
Brown v. Allen,
344 U. S. 443
(1953),
Fay, and like cases.
See, e.g., Stone v.
Powell, 428 U. S. 465,
428 U. S.
528-529 (1976) (BRENNAN, J., dissenting).
[
Footnote 4/8]
Whether in a civil or criminal case, Congress' broad authority
to allocate federal issues for decision in its choice of forum is
clear.
See, e.g., Tennessee v. Davis, 100 U.
S. 257 (1880);
Greenwood v. Peacock,
384 U. S. 808,
384 U. S. 833
(1966):
"We have no doubt that Congress, if it chose, could provide for
exactly such a system. We may assume that Congress has
constitutional power to provide that all federal issues be tried in
the federal courts, that all be tried in the courts of the States,
or that jurisdiction of such issues be shared. And, in the exercise
of that power, we may assume that Congress is constitutionally
fully free to establish the conditions under which civil or
criminal proceedings involving federal issues may be removed from
one court to another."
The same day as
Greenwood. the Court applied § 1443(1)
as authorizing (subject to further factfinding) the removal of a
state trespass prosecution to the United States District Court.
Georgia v. Rachel, 384 U. S. 780
(1966). Once a criminal case is thus removed to the federal court,
the State no longer can assert any interest in having trial of the
state substantive offense governed by the State's choice of
procedure, for this Court has long provided that federal procedure
then obtains.
Tennessee v. Davis, supra at
100 U. S. 272.
In this sense, the prevailing system of post-trial federal
collateral review is more generous to state procedure than would be
required, and, some would say, desired.
See generally
Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed
Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to
Abort State Court Trial, 113 U.Pa.L.Rev. 793 (1965).
[
Footnote 4/9]
Of course, even under the Court's new standard, traditional
principles continue to apply, and the federal judiciary is not
bound by state rules of procedure that are unreasonable on their
face, or that are either unreasonably or inconsistently applied.
See, e.g., Henry v. Mississippi, 379 U.
S. 443 (1965);
NAACP v. Alabama, 377 U.
S. 288 (1964);
Staub v. Baxley, 355 U.
S. 313 (1958);
Williams v. Georgia,
349 U. S. 375
(1955).
[
Footnote 4/10]
This is not to suggest that the availability of collateral
review has no bearing on the States' selection and enforcement of
procedural requirements. On the contrary, to the extent that a
State desires to have input into the process of developing federal
law, and seeks to guarantee its primary factfinding role as
authorized by § 2254 and
Townsend v. Sain, 372 U.
S. 293 (1963), the existence of broad federal habeas
power will tend to encourage the liberalizing and streamlining of
state rules that otherwise might serve to bar such state
participation. From every perspective, I would suppose that any
such effect of
Fay would be considered a salutary one,
see, e.g., Shapiro, Federal Habeas Corpus: A Study in
Massachusetts, 87 Harv.L.Rev. 321, 348 (1973), although the Court
implies the contrary,
ante at
433 U. S.
89-90.
[
Footnote 4/11]
In my view, the strongest plausible argument for strict
enforcement of a contemporaneous objection rule is one that the
Court barely relies on at all: the possibility that the failure of
timely objection to the admissibility of evidence may foreclose the
making of a fresh record, and thereby prejudice the prosecution in
later litigation involving that evidence. There may be force to
this contention, but it rests on the premise that the State, in
fact, has suffered actual prejudice because of a procedural lapse.
Florida demonstrates no such injury here. Sykes' trial occurred in
June, 1972. He subsequently filed his petition for a writ of habeas
corpus in April, 1973, thereby apprising Florida of his
constitutional objection. There is no basis in the record for
concluding that lost evidence or other form of prejudice,
see,
e.g., Barker v. Wingo, 407 U. S. 514,
407 U. S. 532
(1972), arising during this 10 1/2-month interval effectively
forestalls Florida's defense of the Fifth Amendment claim or the
reprosecution of Sykes should his constitutional challenge
prevail.
[
Footnote 4/12]
Under § 2254, the availability of federal review is not limited
or dependent on forgoing litigation in the state courts. Because
the state forum thus affords purely an additional measure of
protection,
Fay recognized:
"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. . . . 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."
372 U.S. at
372 U. S. 433.
See Reitz, Federal Habeas Corpus: Impact of an Abortive
State Proceeding, 74 Harv.L.Rev. 1315, 1351 (1961). This Court's
recent decision in
Stone v. Powell, 428 U.
S. 465 (1976), seems to subscribe to a similar view that
deterrence is not meaningfully furthered by adopting an overkill of
sanctions. There, the Court reasoned that police misconduct under
the Fourth Amendment will be deterred by state review of any search
and seizure claim, and that further federal court consideration
would have but an "incremental" and "isolated" deterrent impact.
Id. at
428 U. S. 494.
Assuming that criminal defendants and lawyers are no less rational
than police, they should be deterred from risking the unnecessary
forfeiture of all state remedies and the initial opportunity for
judicial victory before the state courts.
[
Footnote 4/13]
Traditionally, the rationale for binding a criminal defendant by
his attorney's mistakes has rested on notions akin to agency law.
See, e.g., Comment, Criminal Waiver: The Requirements of
Personal Participation, Competence and Legitimate State Interest,
54 Calif.L.Rev. 1262, 1278-1281 (1966). With respect to ordinary
commercial matters, the common law established and recognized
principal-agent relationships for the protection of innocent third
parties who deal with the latter. In the context of a criminal
trial, this analogy is not apt, for the State, primarily in control
of the criminal process and responsible for qualifying and
assigning attorneys to represent the accused, is not a wholly
innocent bystander. Consequently, the dominant relationship of the
trial counsel with respect to his client more recently has been
found simply to inhere in "our legal system" or "our adversary
system." Estelle v. Williams, 425 U.S. at
425 U. S. 512.
There is undoubted truth in this; obviously "our legal system"
presupposes that attorneys will function competently, that their
clients cannot participate in all decisions, Henry v. Mississippi,
379 U.S. at
379 U. S. 451,
and that the trial of a criminal defendant will not inevitably be
followed by a trial of his attorney's performance.
Fay
reacts to this institutional demand by enforcing both action and
inaction of attorneys -- even if they prove to backfire in actual
practice -- provided that it is found that the lawyer was aware of
his client's rights and knowingly applied his professional judgment
in his client's behalf. In brief, the bypass test rightfully defers
to the attorney's "vast array of trial decisions, strategic and
tactical,"
Estelle v. Williams, supra at
425 U. S. 512,
but not to sheer inadvertence where no decision was made.
[
Footnote 4/14]
See generally Tague, An Indigent's Right to the
Attorney of His Choice, 27 Stan.L.Rev. 73 (1974).
[
Footnote 4/15]
The earlier cases of
Davis v. United States,
411 U. S. 233
(1973), and
Francis v. Henderson, 425 U.S. at
425 U. S. 542,
similarly are not instructive in defining "cause," since both
decisions appear to have disposed of the habeas application
primarily on the "prejudice" aspect of the test.
[
Footnote 4/16]
A majority of courts have now passed beyond the standard of
attorney competence embodied in the so-called "mockery" test, which
abdicates any judicial supervision over attorney performance so
long as the attorney does not make a farce of the trial.
See,
e.g., United States v. Katz, 425 F.2d 928 (CA2 1970) (attorney
who was prone to fall asleep during trial held to have provided
competent representation). The new emerging rule essentially
requires that the attorney provide assistance within a reasonable
range of professional competence,
see United States v.
DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973);
United States ex rel. Williams v. Twomey, 510 F.2d 634,
640, (CA7 1975).
[
Footnote 4/17]
See, e.g., Chambers v. Maroney, 399 U. S.
42,
399 U. S. 55-60
(1970) (Harlan, J., dissenting). Recently, this Court, however, has
made clear that attorneys are expected to perform "within the range
of competence demanded of attorneys in criminal cases,"
McMann
v. Richardson, 397 U. S. 759,
397 U. S. 771
(1970);
Tollett v. Henderson, 411 U.
S. 258,
411 U. S. 266
(1973).
[
Footnote 4/18]
Indeed, at least this level of knowledge and proficiency would
seem to be a prerequisite for the provision of "effective and
substantial aid" as guaranteed by the Sixth Amendment.
Powell
v. Alabama, 287 U. S. 45,
287 U. S. 53
(1932).
[
Footnote 4/19]
"Counsel's failure to evaluate properly facts giving rise to a
constitutional claim, or his failure properly to inform himself of
facts that would have shown the existence of a constitutional
claim, might, in particular fact situations, meet this standard of
proof [of incompetent counsel]."
Tollett v. Henderson, supra at
411 U. S.
266-267.
[
Footnote 4/20]
Zerbst dealt specifically with an instance where trial
counsel was altogether lacking, but "[i]t has long been recognized
that the right to counsel is the right to the effective assistance
of counsel."
McMann v. Richardson, supra at
397 U. S. 771
n. 14 (citations omitted).