*1 ALLEN, WARDEN. BROWN 32. NO. 13, 1952. Decided Reargued April 29, October
Argued February 9, 1953. *3 No. argued petitioner Price the cause Rosea V. Taylor petitioner. L. filed a brief for Herman a brief for L. and filed Taylor argued Herman cause in No. 22. petitioner Murray argued A. the cause Rogge
0. John Gordon Mr. them on petitioners Taylor No. 20. was with the brief. argued respondent
R. Brookes Peters the cause for *4 Brogden, for argued respond- No. 32. E. O. Jr. the cause ent in 22. Ralph Moody, Attorney No. Assistant Gen- Carolina, argued respondent eral of North the cause for Harry in No. 20. them on the briefs With was McMul- lan, Attorney General. opinion
Mr. Justice Reed delivered the
of the Court.
granted
judgments
Certiorari was
review
Appeals
United States Court
for the Fourth Circuit.
343
342
903;
953;
U. S.
U. S.
U. S. 941. These cases
raised serious fed-
As the records
year.
last
argued
were
out
carrying
upon questions
eral constitutional
of im-
issues
depended
procedural
of death sentences
and the Federal
in
between states
portance
the relations
in this
disagreement
there was
upon which
Government
reargument.
for
We
we decided to set
cases
Court,
again.
have now heard
cases
were entered October
judgments
The
of affirmance
appeal
judgments
from three
United
for
Eastern District of North
States District Court
corpus sought by
of habeas
Carolina,
refusing writs
that all
prisoners convicted
that state. We conclude
had
review of the convictions
required procedure
state
they
before
by petitioners
been exhausted
each case
sought
corpus
the writs of habeas
in the federal courts.
In
petitions
each case
for certiorari to this Court for di-
rect
judgments
highest
review the state
rendered
the state
the face of the same federal issues
now
had
presented
been denied.1
It
necessary
prisoner
is not
such
for the
circumstances
to ask the
relief,
state
collateral
based on the same
already
evidence and issues
decided by direct review with
petition
another
for certiorari directed to this Court.2
It is to be noted that an applicant is barred unless he has
“exhausted the remedies available in the
courts
State ...
by any
procedure.”
available
legislative
history
paragraph,
verba,
shows
in haec
presented
Congress
to the
with the recommendation of
Carolina,
943; Speller
Brown v. North
U. S.
North Caro
lina,
835;
Carolina,
340 U. S.
Daniels v. North
“An shall not be deemed to have exhausted the remedies State, available in the meaning courts of within of this sec- tion, right if he has raise, by any under the law the State to procedure, question available presented.” *5 448 of 28 history legislative Conference.
the Judicial of the considerations no discussion C. 2254 has § U. S. than that other enactment congressional moved a similar clause 1559. But see Rep. in S. contained No. 3214, H. Sess.; R. Cong., 1st 3214, 2254 H. R. 80th § 2d Cong., 80th 1559, No. Sess.; Rep. 2d S. Cong., 80th of Senior Judicial Conference Sess., p. Report of the 9; 1947, pp. 17-20. Judges, Circuit 2254 has been construed paragraph § The second McGee, 191 Ekberg In v. by appeals. several courts of that the refused to consider 625, F. 2d the Ninth Circuit pro- forum where deny meant to a federal state statute in Master The Third Circuit cedures were inexhaustible. Baldi, the exhaustion of 113, 116, v. 198 F. 2d held that with of several alternative state remedies one available certiorari therefrom is all that is this Court’s denial of Sullivan, In F. and 177, Bacom v. 181 2d necessary. Sullivan, Fifth ruled Bacom v. F. 2d Circuit 194 to the presented that when a federal had been question by post-conviction procedure, state courts at least one question having certiorari on the same been once denied Court, appeared unique extraordinary this there justifying circumstance federal examination under Darr Burford, S. 200.3 U. cases, strongly urged purpose Outside the it has been that the right subparagraph 2 was to eliminate the of a federal district court application long any remedy to entertain an so state remained Judge Parker, available. In article Chief Chairman of the Corpus Judicial Conference Committee which drafted the new Habeas Act, Limiting Corpus, the Abuse Habeas 8 F. R. D. (1949), presented: construction §2254 eliminate, practical -provision “The effect of this last is to for all purposes, right apply federal to the lower courts may corpus applications in all states in which successive be made states, corpus courts; for, for habeas in all such the state notwithstanding prior applica- applicant right, the denial of has tions, apply again to the state courts for habeas *6 When, April 1948, Judge presented Maris the Judi- cial Judiciary Conference draft of 2254 to the § Senate Subcommittee, language C., of the revision of 28 S.U. the hearings being held, were set out three bases for exercise of jurisdiction applications federal over corpus habeas from state prisoners. language Under the bill as it read, application then have might been entertained where it appeared (1) appli- cant had exhausted the remedies available in the courts state, or (2) where there was no adequate remedy available in such courts, (3) or where such courts had denied the applicant a fair adjudication of the legality of his detention under the Constitution and laws of the United States. In accepting the recommendation of the Judicial Conference, the Congress eliminated the third jurisdiction. basis of S. Rep. No. p. 9, shows the reason for this as follows:
“The purpose second is to eliminate, ground as a of Federal jurisdiction to review by corpus habeas judgments of courts, State the proposition that State court has prisoner denied a adjudication ‘fair of the legality of his detention under the Constitu- tion and laws of the United States.’ The Judicial Conference believes that this would be an unde- upon have action application such later reviewed Supreme Court of the application United States on for certiorari.” doWe not so construe 2254. We do Congress not believe in- § require tended to repetitious applications to state courts. § originally read as follows: application “An a writ of person in behalf of a custody pursuant judgment to the authority of a State court or of a State officer granted shall not be appears ap- unless it that the plicant has exhausted the remedies available in the courts of the State, or adequate that there is remedy no available in such or courts that such courts have adjudication denied him legality a fair his detention under the Constitution and laws the United States.” of H. R. Cong., 80th 2d § Sess. addition jurisdiction for Federal ground
sirable adequate or lack remedies of State to exhaustion permit it would because courts in the State remedy be- ground on this Federal court in the proceedings remedies. his State had exhausted petitioner fore to a open be always course, would, ground This had after he in the Federal to assert petitioner adequate if he had no remedies his State exhausted remedy. State detailed is to substitute purpose
“The third remedy adequate ‘no phrase for the language specific *7 specific sufficiently is not phrase That available.’ therefore, be should, meaning and its precise, is done in the section as in more detail out spelled by the amendment.” remedy available” “adequate
If the substitution Congress by the intended definition was present for relief apply prisoner of a state right eliminate the do courts, we the lower federal corpus to by habeas remedy a suggested that would have report think that the federal adjudication” “fair for denial of a and circuit of district elimination suggested court. The habeas statutory other with the square does not courts 2241, 2242, 2251, §§ See 28 U. S. C. provisions. corpus unwilling to conclude 2252, 2253, paragraph. 3d We radical direction so congressional a definite without change was intended. in determin Court, In of these cases the District each writ, considered granting of its ing propriety questions on the same of certiorari effect of our refusal highest court upon judgments direct review of the in our rul question, pretermitted As that the state. 200, 214-217, 339 case ing Burford, in Darr v. U. S. sought here from state denial no certiorari was where had imprisonment, from relief collateral opinion differences of the federal given rise to definite ruling necessary.4 courts, a here was There ais similar difference this Court.5 As other issues command a majority upholds judgments of the Court of Appeals, opinion although is that of the Court it represents minority view on the effect of our denial
4The courts below have divided since the Darr case on the effect to be accorded a denial certiorari this Court.
NO SUBSTANTIVE EFFECT DISCRETIONARY EFFECT Lainson, Goodman 182 F. 2d Anderson v. Eidson, v. 191 F. 2d 814. 989.
McGarty O’Brien, Eidson, 188 F. 2d Holland v. v. Supp. 90 F.
151.
314.
Pennsylvania
O’Brien,
Soulia
ex rel. Gibbs v.
v.
Fouquette Bernard, v. 198 F. 2d
96. Baldi,
Master v.
Daverse v. F. 2d 934. 198 participation The through of a corpus pro district court habeas ceedings determining prisoners in whether granted state have been system. Speller a fair trial is a sensitive area in our federated v. Crawford, Baldi, Supp. 92, 96; F. Smith v. 540, 192 F. 2d 543. September 1952, In meeting, at its fourth annual the Conference adopted of Chief questioning Justices corpus resolution the habeas principles “enunciated in certain recent federal decisions.” The expressed resolution the consensus of the Chief Justices that “a final judgment highest of subject a State’s be to review or [should] only by Supreme reversal the Court of the United States.” Concern hearing was noted that the petitions by of the successive federal upon majority of the position The of certiorari. of opinion Frank- the expressed Mr. Justice is point of habeas review summary A 488. p. post, furter, state in relation courts federal in the practice corpus Olson, 326 v. Hawk in found will be convictions criminal It 203. 200, S. Burford, U. Darr v. and 274, U. S. in the result will herein reached the conclusions hoped leave justice of administration of the improvement unimpaired Writ the of Great function indispensable in usefulness. Proceedings.
II. Effect Former former refusal this Court’s given to be effect the District presented in these cases certiorari federal applications which heard Court in the proceedings state full records corpus upon Allen, Brown v. In No. courts. appellate trial and applica- examination upon Court, the District hear- without adopted, exhibits, answer, and tion, the sentencing findings of the testimony, ing argument grand composition both respect with judge of the confession. voluntary character and the jury issues involved constitutional were the federal These had Judge the District which record trial. The the state North of the case the record him embraced before all the relevant Court, including and this Carolina courts in the sentenc- transcript proceedings portions peti- dismissed the Court then The District ing court. 98 F. Crawford, Supp. Brown v. nom. tion. Sub Allen, for habeas petition 22, Speller In No. federal again raised same the District ap- upon by the trial passed had been question judicial the sense a dilution of toward courts would tend district justice, and delay of criminal the enforcement responsibility, a *9 judicial institutions. State in state impairment confidence Government, pp. 249-250.
pellate North Carolina and courts which had been petition offered to Court on for certiorari; wit, jury “pursuant commissioners had long to a and continu- practice, ous discriminated Negroes in the against selec- tion of juries, solely on account race color.” and/or The District Court had it before the record which had been filed Supreme of North ap- Carolina peal. Included this record was the transcript same proceedings in trial court which had been before the State Supreme In Court. addition, the District Court took further evidence way testimony and stipula- tion. The District Court, upon examination of all the evi- dence and the stipulations, adopted findings sentencing judge with respect to the composition of the trial jury. It added that petitioner “failed to substantiate the charge that he did not have trial according to due process, . . . .” The court then vacated the writ; and held that while the petition could be “solely dismissed in the light of procedural history,” there was the added alternative ground of failure to substantiate the charge. Sub nom. Speller Crawford, 99 F. Supp.
In No. 20, Allen, Daniels v. petitioners at state trial made a motion timely quash the indictment and chal- lenged the array, alleging against discrimination Negroes in the grand selection both and petit jurors in contra- vention of guarantees of the Fourteenth Amendment. Timely objection was also made to admission in evidence of what alleged were to be coerced confessions. Peti- tioners contend that the admission of these confessions violated their process due rights under the Fourteenth Amendment. They also urge that the refusal of the Su- preme Court of North Carolina to examine the merits of the trial record in the state courts because of their failure to serve a statement of the case on appeal until day one beyond the period of limitation, is a denial of equal pro- tection under the Fourteenth Amendment. In their *10 repeated Court, petitioners District to the
application which questions constitutional federal those again once the and sentencing court to the presented been had earlier also been had and Carolina of North Supreme this Court. in filed for certiorari petition in their repeated Judge District Court the application, the examining In of courts appellate and trial of the the records studied proceedings of the transcript including a Carolina, North findings that the concluded He sentencing court. in the of matter on the sentencing of the judge sup- were selected properly had been jury the whether not shown it was and that the evidence all by ported exclusion systematic and a purposeful was that there that also found He race. on account solely Negroes that the confessions determined correctly judge trial the the concerning the instruction that voluntary and were Judge District In addition adequate. was confessions or defense. prosecution by offered all evidence heard circum- to the did advert Judge District Court certiorari petition had denied this Court stance that to his that further observed and he questions, on the same make not case did history of the procedural mind the the substance denied were petitioners appear it “failed sub- petitioners He added that fair trial. 216. The F. Supp. at made.” charges stantiate theOn application dismissed. writ was vacated entertain Court refused to District history, the procedural Supp. 99 F. Crawford, Daniels v. nom. Sub request. thus determined proceedings former The records The fact Court. District States the action United of the cases was heard two evidence that further held were not prisoners judge assure dismissing In of the Constitution. custody in violation Court did the District petitions these as conclusive. our denial certiorari treat Gilliam Judge decided, the last one case, Brown In the of fact: finding his decision based respect Judge, the trial found “12. The facts supported are jury, grand composition to the findings and him, these before evidence findings adopted thereon the conclusion *11 by that found the facts and respect, this of statements of admission question to the respect by the supported are also the defendant made the conclusions findings and these evidence, and 866, 870. Supp. 98 F. adopted.” likewise thereon 163 F. 2d Smyth, v. from Stonebreaker court cited this is the above statement support 498, 499, rule: proper “ and the denial Virginia courts action ‘While binding were not Supreme Court by the of certiorari were matters they judicata, of res principle on the be- the court respectful consideration to entitled unusual situa- most absence some and low; for that court reason sufficient tion, they were ” Supp. 98 F. corpus.’ a further deny writ at 868. is stated of his case, pith conclusion Speller
In the follows: “ writ should now concludes ‘The Court pro- upon the petition dismissed be vacated Courts, in the and the record State history cedural is not proceeding that habeas for the reason raising purpose for the petitioner available ” in those Courts.’ passed upon question the identical 92, F. 95. Supp. 99 agreement ground the alternative this was added
To pp. See sentencing court. the conclusions with 452-453, supra.
456
In the Daniels case, day, decided same the District open Court left the question power of its to reexamine, Supp. 99 F. at on 213, concluded the record that the State had afforded a fair trial.
A.
Denial
Certiorari. —In cases such as
Effect of
these, minority of this Court
is of the opinion that
there is no reason
awhy
district court
give
should not
consideration
prior
record of the
certiorari
weight
Court and such
our
denial as the Dis
trict
justifies.
Court feels the record
is the
This
view
of the Court of
192 F.
Appeals.
763,
2d
seq.;
768 et
Speller Allen,
v.
B. State Court —With Effect of on the minority of the position statement above we turn to certiorari, our denial of given to be weight given no is to be weight The fact that another question. of certiorari Court to our denial Federal District by that treat taken as an indication similar should not be to the orders of the state courts. ment is to be accorded in the courts weight given proceedings far to be So court, district concerned, States the state is United practice is a favorable familiarity with its with state in denials of recognize adequate grounds state position A where opinion. fortiori, courts without relief state adequate ground, based on an state the state action was remedy unless no state required, no examination is further rights of federal constitutional ever deprivation for the Holohan, 103; parte S. Ex Mooney existed. U. Hawk, Furthermore, 114. where there is mate U. S. transcripts of evidence as to rial conflict of fact the District Court deprivation rights, of constitutional may properly depend upon the state’s resolution York, 324 In issue. Malinski v. New U. S. adjudication other circumstances the state carries the of a weight practice gives that federal to the conclusion jurisdiction of last resort of on federal con court another judicata.6 stitutional issues. It is not res Furthermore, in view of the that was consideration given by the District Court to our denial of certiorari cases, these should we return them to that court for reex- light upon amination in the ruling this Court’s given effect to be to the denial? think not. From We findings judgments of fact and the of the District given Court we cannot see such consideration as was to our had denials certiorari could have any respective effect on its conclusions as to whether the defendants had been denied protec- federal constitutional overturning applicant, As the burden of the conviction rests on the allege specifically, material, he should in cases where the uncontra- evidentiary appearing upon dicted facts the record based allegation his rights. of denial of constitutional
459 that the ruling today, under the Court’s true, It is tion.7 erroneously gave of the three cases in each District Court true is also It our denial of certiorari. consideration that that without show above, set out rulings, that its state of the from its examination consideration, it found that conduct presented new evidence records and with in full accord proceedings state respective immaterial the fact make Such conclusions process. due to our denial gave court consideration that the trial certiorari. Appeals recog and the Court of
The District Court federal to reexamine of the District Court power nized the by a trial and review issues even after constitutional Bur Darr v. in this Court. and refusal of certiorari state contrary to the 214. The intimation ford, S., 339 at U. 453, supra, 95, p. F. at see case, Supp., in the 99 Speller “In hearing. after the opinion must be as the Court’s read rule is settled judicial proceedings the review of affirmed, it must be correct, that if below is the decision or upon wrong ground relied a although the lower court the consideration wrong Certainly reason.”8 gave former refusals of cer- District Court to our given by the presented cannot affect its determina tiorari on the issues applications no of the any there was merit tions F. corpus. Supp. 868, 870; Supp. 98 F. for habeas applicable Rules Proc. is as follows: The Rule 61 the Fed. Civ. of evidence and error in either the admission or the exclusion “No anything any ruling or or or order or in done no error defect any ground granting parties is the court or of the omitted modifying, vacating, setting aside a or for a new trial verdict order, disturbing judgment or unless refusal to take or otherwise justice. appears such action to the court inconsistent with substantial any every stage proceeding disregard error at must rights proceeding or defect in the which does not affect the substantial parties.” 8Helvering Gowran, Riley 245. Co. v. 302 U. S. See Commissioner, S. 59. U. appear it is made at Where Supp. 99 F.
97, 99; could alleged error here, affirmatively, as even disregarded be may result, such errors *15 affect or affirm we trials.9 Whether of criminal the review upon depend therefore, does cases, in these reverse our denial of certiorari consideration the trial court’s the issues upon of its decisions the soundness upon but requirements procedural of federal alleged violation the North Caro- rights by constitutional petitioner’s or of problems. take up now those lina We proceedings. Plenary Hearing. Right III. Brown 32, in No. a error alleges procedural
Petitioner
subdivision, the
preceding
in the
As we stated
v. Allen.
record
refused on the entire
corpus
habeas
writ of
Supp.
F.
and federal courts. 98
respective
of the
state
that the Dis
contention, however,
petitioner’s
It is
when it took no evidence and
error
trict Court committed
on the federal constitutional
issues.
argument
no
heard
to a
trial of
federal
plenary
he is entitled
his
He contends
argues
in the District Court. He
constitutional
issues
with
Court,
jurisdiction
Federal District
that
judicial power
its
corpus,
habeas
must exercise
particular
controversy notwithstanding prior de
again
to hear
substantially
by
identical federal issues
terminations of
court, either on direct review of the
highest
state
by post-conviction remedy,
corpus,
or
conviction
nobis, delayed appeal
coram
otherwise.10
over
for federal habeas
applications
Jurisdiction
The Code
en
is controlled
statute.11
directs
Berger
States,
52,
Proc.;
Rule
Fed. Rules Crim.
v. United
78,
States,
750, 763;
U. S.
81-84. See Kotteakos v. United
328 U. S.
States,
Bihn v. United
tertaining application But the writ.12 to award filing. Liberal application a mere is not “entertained” setting practice in be as are and should the courts as appli rights, the of constitutional violations out claimed alleging statutory facts test of meet the must cant him to entitle relief.13 presents mean- Its difficulties. word “entertain” § surroundings.14 according
ing may vary In 2243 its § court’s a federal district it means and 2244 we think application with such conclusion,after examination necessary, accompanying papers the court deems proper. legal hearing See or factual on the merits Second; Johnston, 283, First and v. 312 S.U. Walker p. p. post, after de- Baldi, at 568. Even Smith application, ciding the District to entertain *16 may that or otherwise later from the return determine unnecessary. hearing is statutory by that a federal dis- enactment
It is clear application required not to entertain an trict court is legality corpus appears if that “the such habeas it by judge of the determined a or court detention has been 1228 U. S. C. §2243: court, entertaining application a writ justice
“A or judge corpus the writ or issue an order of habeas shall forthwith award why directing respondent the writ should not be to show cause applicant granted, appears application unless it from the that person detained is entitled thereto. . . . only application present “Unless the for the writ and the return person required issues of law the is be to whom the writ directed shall produce hearing body person at the of the detained. summarily facts, “The court shall hear and determine the and dis- pose justice require.” of the matter as and law 13 ford, supra, p. 2243, 28 U. S. C. 2242. Darr v. Bur 203. See § § supra. 14 McKay Commissioner, 243, See Denholm & Co. v. 132 F. 2d 247, and cases cited.
462 of habeas for a writ application prior aon States United in House to this section *17 Cong., Sess., by inquiry.” Rep. 1559, 2d See S. No. 80th served such 45. Amendment No. 3214, Cong., 4232, Cong., Sess.; H. R. 80th H. 79th 1st See R. Sess.; Report Sess.; 3214, Cong., of the Judicial H. R. 80th 2d 1st Judges, 1947, pp. 17-20. Circuit Conference Senior 1728 U. S. C. §2254: person application corpus in behalf of a “An for a writ custody pursuant judgment shall be to the of a State court not applicant granted appears has the rem- unless it that the exhausted State, edies available in the courts of the or that there is either an process the existence of absence of State corrective or available rule general It was under this S. C. § old 28 U. Salinger Loisel, 265 U. S. approved this Court refuse a judge might that a federal procedure and re- made to writ had been application where one is of judge and the judge another federal second fused satisfactory a light that in the of the record opinion is also principle reached.18 That conclusion has been supra, Burford, Darr v. prisoners. to state applicable 214-215. determined grounds courts on
Applications to district follow should adversely applicant by to the state courts more, writ without refusal of the principle same —a record, if the state satisfied, the court is fair to the issues and the process given has consideration in a evidence, satisfactory and has resulted con- offered application the record of the affords clusion. Where weigh sufficiency an adequate opportunity and the and no unusual cir- allegations evidence, calling hearing presented, repeti- cumstances p. How- required. 457, supra. tion of the trial is See ever, may a trial be had the discretion of the federal rendering process protect rights such ineffective circumstances prisoner. applicant shall not be the remedies “An deemed to have exhausted State, meaning section, available in the courts within the of this right raise, by any if he has the under the law of the State to question procedure, presented.” available change procedure The reason for the was stated: discharge applica- “But it does not follow that a refusal to on one bearing weight application being is tion without when a later early discharge open considered. In times when a refusal to was not appellate review, judges courts and were accustomed to exercise independent judgment application, regardless on each successive right appellate given of the number. But when a to an review was practice practice the reason for that ceased and the came to be materially changed, just right comprehensive as when a to a review — given scope inquiry in criminal cases was deemed admissible relatively Id., on habeas came to be narrowed.” at 230-231. *18 464
court or A judge hearing application. way the new is open left to redress violations of the Constitution. See p. 447, supra. Dempsey, Moore v. 261 Although U. S. 86. they it power, necessary have is not for federal courts hearings to hold on the merits, facts law a second time when satisfied that federal constitutional rights been have protected.19 It is necessary jurisdiction exercise to the extent of determining by examination of the record hearing whether or not a would serve the ends of justice. 19 application corpus by prisoner When an for habeas a state filed in a federal district after exhaustion of state rem edies, including Court, a certiorari to this it rests on a record that applicant’s through was made in the effort to secure relief imprisonment, allegedly state from violation .federal constitu rights. Court, place tional The District a court convenient to the litigation, (b), determining grounds 28 U. S. C. after §2241 petition, “may require relief are showing stated of the record prior applications.” and Burford, supra, 215; action on Darr v. at Salinger Loisel, 224, 232; parte Davis, Ex U. S. cf. Elmer Original U. S. 412. records in state courts are returned (E. g., Carolina, Court. in Daniels see v. North 339 U. S. States, order of The Chief May 12, of the United dated Justice upon as the remains Court, directing, same the files of this application petitioner’s counsel, original the return of the record from the Supreme files this Court to the Court of North Carolina.) Copies petitions normally for certiorari are available petitioners. See 28 strengthen U. S. C. 2250. Other sections § ability hearing application fully of the court itself advise concerning prior hearings of the same applicant. issues for the U. S. C. allows facts; pro a certificate as to certain §2245 §2246 depositions vides for and affidavits. pro Section 2247 makes liberal vision for the use of records of former proceedings in evidence. See also 2248-2254, course, inclusive. Of the other §§ usual methods completing cases, the record in subpoena civil such as duces tecum discovery, generally applicant respondent. available to the If prior litigation useful records of are difficult to secure or unob tainable, the may District necessary find it or desirable to hold hearings supply limited allegations them where the application for habeas corpus adequate grounds state for relief. *19 As the state 15, supra. 2244. n. See § S. C. Cf. 28 U. pro- responsibilities have the same courts and federal rights, of their constitutional from violation persons tect may decline, court a federal district we conclude that writ of habeas to award a rehearing facts, without a of such deten- legality prisoner to a where corpus state by the presented, determined, on the facts has been tion af- through with whether jurisdiction, court highest state post- or denial judgment appeal on firmance of Ragen, 324 S. v. U. remedies. See White conviction 764. involves no extraor- this case presently appear, will
As was before complete record Since dinary situation. rehearing no need for Court, there was the District response Treating the state’s further evidence. taking of prop- dismiss, the court as a motion application to the Discharge from conviction that motion. erly granted clemency judicial is not act through custody. against illegal a protection but discre- judicial a matter of argument The need for There was presented. adequately All issues were tion. no abuse. Disposition Issues. of Constitutional
IV. which were our attention to the records Next we direct that in order to review court’s the District Court before a petitioners Carolina accorded conclusions North Questions of questions. fair of their federal adjudication lie of coerced confessions discrimination and admission Protection Equal Process and compass of the Due petitioners Amendment. Have Clauses of the Fourteenth accepted by with hearings received consonant standards their convictions? adequate justify this Nation as Louisiana, v. 312; v. S. Adamson Cali Hebert U. 46. fornia, U. S. Allen, 32, a case No. Brown up take
First. We the constitutional the others on than generally turns more issues. 4, 1950, September was indicted
Petitioner, Negro, charge of on a North Carolina courts tried in the he was sentenced guilty, been found and, having rape, sentencing In the September death on bill of timely quash motion to made petitioner against Negroes in alleging discrimination indictment, jurors contravention grand the selection Amendment to the Federal the Fourteenth guarantees *20 sentencing, but before verdict, After the Constitution. to verdict, sought the a motion to set aside petitioner, by attack on the selection expand his constitutional appeal also. On petit jury to embrace the grand jury mo treated, do, petitioner’s Court as we Supreme State juries. of both adequate challenge the selection tions as A 99, 100-101. 63 S. E. 2d second 202, 205-206, 233 N. C. sentencing in the court when question federal was raised into of a confes petitioner opposed admission evidence involuntarily. alleged given sion which he had been to the Following sentencing, petitioner appeal took an Supreme presented State Court and there for review jury issues of discrimination and of a coerced admission confession. On this that had before it both appeal, court a brief on behalf of all petitioner transcript and a of those of portions sentencing proceedings petitioner deemed relevant to a review of his federal questions.20 Dealing with the federal constitutional questions merits, Supreme on their the State Court Supreme Rule 19 of the Rules of the Court North Carolina permits appellant bring up appeal an on as much of the record necessary understanding exceptions as is “to an relied on.” Supreme Petitioner does not contend that the record before the inadequate fully support adjudication of North Carolina was questions. on his federal Brown, 233 N. C. State the conviction.
affirmed
A. Petitioner’s jurors viola- petit grand selection of groes operation rights attacks tion of his constitutional selecting juries a North Carolina method used method of detailing the County. The statutes Forsyth petitioner’s It is contention are cited below.21 selection at a time have Negroes no or two that more than one jury and no Forsyth County grand on a that ever served previously served Negroes more than five have ever county. in the These contentions petit jury panel allegation system the basis of the discrimina- being employed against Negro tion is residents county. support Petitioner offered no evidence to charge against jury of limitation of Ne- his service than groes, except Negroes whites, the fact fewer having regard proportion for their of the population, ap- peared jury panels. on the shows the following figures Census in re-
spect population Forsyth County.
Population 21 Plus Percent 85,323 50,499 White . 66.5 tO *21 Negro 41,152 25,057 tq . co* 33.5 126,475 75,556 Total . 100.0 100.0 According unchallenged to the IBM testimony of the Supervisor in the of Tax Supervisor Forsyth office of County, a list of names is compiled from a tabulation of all county property poll and taxpayers who make returns and is thereafter County tendered Commissioners for in jury use selection. All males Chapter 206, (as See by Chap 1937 Public-Local Laws amended 264, Laws, ter by Chapter 577, N. C. Session as amended Stats, Laws). C., 1943, 9, 1949 N. C. Session And Gen. of N. c. 1-4, Arts. as amended. to list years age required 21 and 50 of
between property. as well as to list their poll tax themselves Carolina, Recompiled 1950, 105- §§ of North Gen. Stat. 1948, Township, In the most 105-341. Winston 307, had white Forsyth County, 7,659 heavily populated In the polls. colored males who listed 2,752 males and Township, 10,319 County Forsyth outside Winston This polls. white males and 587 colored males listed approximately that number Negroes indicates 16% figures appear No the record of taxpayers. the listed Negroes property on the tax lists. percentage 1949, approximately 40,000 In June a list of names compiled from all the tax lists was handed to the Com- Supervisor. Tax There is by missioners office testimony by Supervisor uncontradicted the IBM of jurors prepared regard color, the list without complete compilation and that it constituted a names of all listed resident, adult, taxpayers Forsyth County. grand Both the petit jury panels employed in this case were drawn from pool. All the names on that and no (the list others list having up been cut into individual of uniform slips bearing only size person's one name) put jury were into a box. The selection from the jury box of names of persons subject summons jurors serve as grand in term of court by lot, made is the selection of panels persons subject to summons duty on petit juries. As the drawings by were made a small child and in public recorded there is no claim or of chicanery evidence in the drawings. jurors in Forsyth
Grand County are in January selected and July for a six months' term. See 206, c. 1937 Public- Laws, Local as amended by c. 1947 N. C. Session Laws, as amended c. 1949 N. C. Session Laws. A panel of 60 names is drawn jury from the box each De- cember and June a child in presence County *22 At Commissioners. June 5, 1950, the meeting the names drawn. These 60 Commissioners, 60 names were for subject to summons panel persons the constituted the indictment which returned grand jury service on the order is drawing, jury a against petitioner. After such sheriff, who then immediately given prepared draw- appear all the he find to for parties summons can may as the be. ings grand petit jury service, case names were drawn were if All whose summoned persons found. there is no as to they Although could be evidence by the there is many persons sheriff, how were summoned at four or five were Negroes evidence to show that least drawing grand summoned. The final jury service in presence is conducted courtroom Superior Judge. July grand jury When panel 60, drawing again was selected from the made a child. The of all persons names sum- moned the sheriff put special were into section of box and jury grand jury the 18-man was then drawn. The name of one of the four or Negroes five summoned group Negro was drawn and that served on grand jury. remaining names are used for the petit jury panel. they needed, petit jury
When panels Forsyth County are drawn from jury groups the same box 44 persons. C. Laws, supra. Public-Local After a drawing, given the names are to a deputy sheriff who then persons summons those on the list whom he can find. On the lists supplied deputies to the there are no indications as to whether the persons named are or white. Negro Ac- cording to the statute all persons report summoned must for jury service. At the petit selection of the jurors for the trial of this case of 37 persons summoned on the panel were Negroes, as were 3 of a special venire of 20. Challenges, peremptory cause, or for eliminated all Ne- groes. objections No are made to the legality of these challenges. Uncontradicted evidence aby state witness
470 percent- 1949 and 1950 years two in the
shows that Forsyth in jury panels grand on drawn ages Negroes of drawn. persons of all and County varied between 10% 7% jury petit Negroes of drawn percentage In 1950 drawn. persons of all between and panels varied 17% 9% tax- composed of those jury list was 1947, Prior to them against all the taxes assessed “paid who had payers 9-1 Stat., 1943, ; year.” § N. C. Gen. preceding for the v. Davis, 55; 14 S. E. State 780, v. 109 N. C. State cf. 44 E. 944. This Dixon, 808, requirement 131 S. N. C. ear- removed, by comparing as is shown has now been wording of 9-1 which was present § lier statutes with in change duty in 1947. No was made of put into law 21 50 polls all between and to list their for assess- males requirement county nor of the for the ment collect 105-307, annual tax. Gen. Stat. poll 105-336, 105-339, §§ Brown, v. 233 105-341; 202, 205, cf. State N. C. 63 E.S. 99, pool eligible jurors 2d 100-101. The was thus en- larged. enlargement This practice selecting jurors under the new statute worked a in change radical proportions drawings jurors the racial in Forsyth County. As is shown the record in this Court Carolina, v. Brunson North 333 851, U. S. tried North in October, 1946, Forsyth County large Carolina with its Negro population, at that time had a jury pool 10,622 white and 255 colored At a sheriff, citizens. time years, then office for 10 testified that he had summoned only Negroes jury about twelve service time. In 1949, jury box All purged. listing those taxes eligible were jury listed for service with the result this case shown above.
Discriminations against
a race
barring
limiting
citizens of that
participation
race from
in jury
service
odious
thought
to our
and our Constitution. This has
long
accepted
been
as the law. Brunson v. North Caro-
lina, 333
Texas,
U. S.
Cassell v.
851;
282,
U. S.
286-
287;
State
Peoples, 131 N. C.
S. E. 814. Such
discrimination is forbidden by statute, S.U. C. §
and has been treated as a denial of equal protection under
the Fourteenth Amendment
to an accused, of the race
against which such discrimination is directed. Neal v.
Delaware,
Responsible as this Court is under the Constitution to redress the jury packing which Bentham properly char- acterized as a sinister species of art, Bentham, Elements of the Art of Packing as Applied Special Juries, p. 6,
472 com- to secure efforts faith good condemn
it should
proportions.
racial
varying
merely because
juries
petent
concluded
Carolina
North
Supreme
composition
racial
on
based
lists
objection
not a racial
was
it
“far-fetched"
lists was
tax
taxpayers
only
included
which
a list
when
discrimination
2d 99.22
E.
202,
S.
N. C.
Brown, 233
State
used.
among
following states
Carolina,
North
addition
In
lists:
tax
on
jury lists
composition
base
also
those
(may
tax
use
95,
c.
Replacement,
§
Ann., 1952
Stat.
Colo.
list);
“shall select
(jury commissioners
1951, 59.106
Ann.,
§
Code
Ga.
receiver”);
tax
the books
from
assessed
those
(“select from
Stat.,
c.
Gen.
Kan.
year”);
preceding
roll
assessment
tax commissioner's
(last returned
1948, 29.070
Stat.,
Ky.
.§
Rev.
book);
of male
“complete list
(from a
51, 6
1939, Art.
Code,
¶
Ann.
Md.
books”);
tax
appear on
names
. . whose
.
inhabitants
taxable
(select from
27.247
27.246
Ann., 1938 and
§§
Stat.
Mich.
*25
for additional
roll”; provides
assessment
the
on
assessed
“persons
names);
last
the
from
(“select,
93,
1402
1947,
Code,
Tit.
§
Rev.
Mont.
county”);
the
roll of
assessment
real
(own
(1948)
Law,
502
Judiciary
Laws,
§
McKinney’s N. Y.
who
someone
married
$250, or
property
$150,
personal
or
property
one
population
having a
of cities
outside
counties
jurors in
does;
596;
Law,
Judiciary
Laws,
§
Y.
McKinney’s N.
more).
million
assessors’
the
(“The
on
names
1943, 27-0906
Code,
§
D.N.
Rev.
making” an
basis
the
be
year shall
preceding
for the
...
lists
cities
various
county
the
per
200 names
apportionment
county);
the
within
and towns
selected
be
(jury
shall
38,
lists
18
1951,
Ann.,
Tit.
§
Stat.
Okla.
county);
the
rolls of
tax
the
on
names
the
from
list,
far
“as
jury
(make a
1940, 14-201
Ann.,
Comp.
§
Laws
Ore.
roll
tax
latest
from
same
to ascertain
and/or
may be able
itas
county”) ;
books of
registration
names
(“select from
1943,
Ann.,
48-0-17
§
Code
Utah
.”) ;
.
roll .
assessment
legal voters
competent
is
(no person
1932, 94
Stat.,
§
Rev.
Remington’s Wash.
recognize
We
the fact that
these lists have a higher pro-
portion of white citizens
than
colored, doubtless due
inequality
educational and
opportunities.
economic
While those who chose the names for
jury
lists might
have included names other than taxpayers, such action
was not mandatory under state law.
Brown,
State v.
N.
202, 205,
C.
state); Wyo. Comp. Stat., 1945, (4) (a 12-101 person competent § if (4) he be assessed on the last assessment roll of county). See also Morse, A Survey of Jury the Grand System, Part Ore. L. (1931). Rev. The answers questionnaires to the sent out Mr. Morse indicated that in twenty-two states the names *26 grand jury the lists were county selected from tax rolls or assess- ment rolls. dealing Rules with the juries selection of courts, federal as announced in Thiel v. Southern Co., 217, 328 U. S. Pacific applicable not in state proceedings. Fay v. York, New U. S. rights constitutional federal the protect duty Our states on impose or should must we mean not all
of does long so lists, jury of source proper the conception our the a cross-section reflects reasonably source the as that intelligence and in character suitable population popu- required or census annual of an Short duty. civic compre- most the offer lists tax these registration, lation think not doWe names. available source hensive violates tax lists of the race, toas nondiscriminatory use, the on we conclude can nor Amendment, Fourteenth the a con- require use of the results the that adduced evidence the before Assuming that unconstitutionality. clusion unconstitutional were 851, there U. S. case, 333 Brunson the county, Carolina North this Negroes exclusions case. in this exclusions such show does record present cor- Court District The contrary. the is to The evidence As both grand jury. to the issue this determined rectly from drawn were case in this juries petit and grand Dis- reasoning box, the jury filling of the same involved. jury here petit to the applicable trict was his conviction further contends B. Petitioner Amendment Fourteenth violation procured per- judge trial because Constitution Federal by peti- claimed a confession rely jury mitted the trial At guilt. determining his coerced to be tioner the state to use objection timely registered petitioner having objection confessions. purported of his the jury immediately excused judge made, trial been to determine examination preliminary ordered and It voluntary. were statements not the whether petitioner in which hearing, preliminary in this were facts the admitted testified, police two officers phase rests petitioner upon developed first judge trial testimony, hearing After of his case. freely and were statements petitioner’s found that competent. to be them declared voluntarily given *27 Upon recall of the jury, the state introduced the state- ments evidence, objections again being noted. Al- though the petitioner chose not to take the stand trial of his cause, his counsel, while cross-examining the officers who had taken the challenged statements from the petitioner, developed again for the all jury the facts upon petitioner which now relies.
A conviction by a trial court which has admitted co
erced confessions deprives a
defendant
liberty without
due process of law. Brown v. Mississippi, 297 U. S.
278, 280, 286-287. When the facts
admitted
state show coercion,
v. Tennessee,
Therefore, it does not matter in this case whether or not the jury was acquainted with all the facts laid before the judge upon which petitioner now relies whether the jury heard or did not hear the petitioner testify. Neither does it matter that there possibly is evidence in the record independent of the confessions which could sustain the verdict. The mere admission of the confes- sions the trial judge constituted a use of them by the state, and if the confessions were improperly obtained, such a use constitutes a denial of process due of law as guaranteed by the Fourteenth Amendment. In deter- mining whether a confession has been used by the state in violation of the constitutional rights of a petitioner, a United States court appraises the alleged abuses by facts as shown at the hearing or admitted on the record.
Petitioner’s contention that he had a constitutional right to have his statements excluded from the record rests upon these admitted facts. He is an illiterate. charged being before days five after arrest held was
He was He convicted. he crime with *28 arrest. his after days 18 until hearing preliminary a given de- his of period the in him provided was counsel No to prior taken were confessions alleged tention. There of counsel. appointment and hearing preliminary painful that less or coercion physical no record is There questioning. by prolonged generated duress silent remain could he was told petitioner that evidence used fee could make might he any statement that and choice made he and speak, He chose him. against been having immunity or of reward promise a without his counsel right to denied never was He extended. from counsel competent without never and was choice in delay If the proceedings. judicial inception which than greater was petitioner arraignment due proceding, criminal federal in a be tolerated might leadership of this Under not violated. process courts, that federal adopted has been a rule prompt before obtained confessions admission denies voluntary character. notwithstanding their arraignment 332; Upshaw States, S. 318 U. v. United McNabb v. United Allen 410. Cf. States, S.U. 335 United This ex- F. 2d 197, C.D. App. S. 91 U. States, to abolish attempt in made been has periment detention prolonged for coercion opportunities rule the federal But to enhance. said hearing is without has The Court sources. from constitutional arise not does for fed- rule of evidence convert this refused repeatedly on the states. limitation a constitutional into courts eral deten- Mere 55, 63-65. Nebraska, S. 342 U. Gallegos v. in official of one private examination police tion statements involuntary the render do not custody state Petitioner’s so detained. person made confessions refusal by the infringed were rights constitutional as evidence. confessions his exclude trial court Second. We examine the constitutional issues No. 22, Speller v. Allen.
Petitioner, Negro, was indicted and August, tried the Superior Court of County, Bertie North Carolina, upon a charge of rape. He has been con- victed and sentenced to death charge on this three times, the first two convictions having been set on aside appeal Supreme Court of North Carolina on the ground of discriminatory selection of jurors. State v. Speller, 229 N. 67,C. 47 E. 537; S. 2d N. C.
E.S. 2d 294. At this, his third trial, August Term 1949, petitioner made a timely motion to set aside array of special veniremen called from Vance County, alleging against Negroes discrimination “solely wholly *29 account of their race color” in the selection of the and/or veniremen in contravention of guarantees the Fourteenth Amendment of the Federal Constitution. (Transcript of Record, State v. Speller, August Term 1949, Bertie N. Superior C. Court at 12, 91, Item Clerk’s Record, Supreme Court of the States.) United Evi- dence was taken at length on issue, although some evidence deemed material by petitioner was In excluded. particular, the trial judge, on the ground that it would immaterial, infra, be p. 480, refused to permit petitioner produce to evidence as all the scrolls in the jury for box the purpose of showing the of existence on dots the scrolls bearing the Negroes. names of The jury box was produced in court, opened, and counsel for defendant permitted to examine the scrolls. The trial judge made findings relating to the manner of select- ing the veniremen, determining no that discrimination was practiced, and on these findings denied the motion to set aside the array. Petitioner was con- thereafter victed for the third time, and sentenced to death.
On appeal petitioner asserted that his conviction vio- lated Equal the Protection Clause of the Fourteenth to set motion of his denial the assigning
Amendment, the as error assigning also error, as array the aside to exam- permission for request his on ruling trial court’s Supreme The jury box. in the scrolls all the into ine appeal that it on before had Carolina of North Court narrative-style tran- mimeographed, the record part makes below; petitioner proceedings entire script on relevant evidence any absence the objection no scrolls to all the relating except appeal, Upholding trial court. excluded had been North Court of Supreme court, the the trial rulings of E. 57 S. C. conviction, N. affirmed Carolina 2d 759. a writ of petition filed this
Petitioner District for the Eastern Federal District review on direct certiorari we denied after Carolina North recited summarily petition The proceedings. state again raised litigation, and history the prior upon passed had been question which federal same been had offered courts, and which North Carolina both discrimination. certiorari, racial petition this Court peti- additional evidence all heard District Court Moore in its discretion. This offered. tioner S., at Burford, U. Dorr v. 86; S. 261 U. Dempsey, district courts power federal which establish cases prisoners state rights of constitutional protect *30 It better enabled remedies. of state the exhaustion after any violation whether that court determine occurred. Amendment Fourteenth against Negroes charge of discrimination Petitioner’s of his con- in jurors violation petit in selection system operation of rights attacks stitutional juries to select authorities Carolina by used North special a venire county County, in from Vance peti- charge rests on try petitioner. obtained no within recent (1) Negro contentions tioner’s years had served on a in jury Vance County before this case, (2) Negro that no had been summoned to serve on a jury before case, (3) this the jury box in this case was heavily so loaded with names white persons that drawing fairly reflect cross- could section of those persons the community qualified for jury service. Petitioner offered evidence to support each of these three contentions.
The evidence establishes the correctness of contentions (1) (2). They inapplicable to this case, how- ever, under the circumstances of the filling of par- this ticular jury box. As is pointed out in Allen, Brown v. supra, at page 470, North Carolina in 1947 enlarged pool its eligible citizens jury service. Gen- eral Statutes, North Carolina, 9-1. § In Vance County, special where the venire for Speller’s trial was drawn, the names of substantial numbers of Negroes appeared there- after box. jury 145 Negroes out of a total of 2,126 names were in jury box. As this venire was the first- drawing jurors from the box after its purge July 1949, following the new statute and Brunson v. North Carolina, 333 851, U. S. decided here March 1948, long history alleged discrimination against Negro its by citizens Vance County jury commissioners is not deci- sive of discrimination in present case. Former errors cannot invalidate future trials. Our problem is whether this venire was drawn from jury box invalidly filled Speller as to because names were selected discrim- inating against Negroes “solely on account of race and/or color.” It particular is this box that is decisive, cf. Texas, Cassell v. U. S. 290 and 295. Past practice is of past evidence attitude of mind. That attitude is longer shown to no control the action of officials present fact of colored citizens’ names the jury box.
480 the names that shows record suggested
It is awith marked box were jury in the persons of colored for un- used be This could the scroll. on period or dot drawn. Such when scrolls of such disposition lawful this case. in the circumstances useless be would scheme were and his counsel defendant The record shows child, aged by a drawn the venire present when sum- to the sheriff'and given drawn were All the names venire special of fact the As a matter issued. were monses appeared. Four Negroes. names seven contained dots, as to the assertion Therefore jurors. sat as None per- unknown that some no more than means true, if even drawing juries fair interfere with desired son against petitioner found trial The County. Vance out its pointed The District question. on this at 97. Supp., F. 99 immateriality. by the clerk names selected by filled box was
This the commis- and corrected jury commissioners substantially those in were put names The sioners. those on the them from clerk, who chose selected clerk testi- property.” most had “the tax lists who into his selection. entered racial discrimination fied no to the selection objection possible of this the effect Since de- not raised or basis was an economic on jurors Supreme to the trial, appeal State at veloped Court, or to this former certiorari Court, on the it Court, certiorari present on the petition or brief important Such here.24 open is not to consideration support objections on proceedings to Evidence in state criminal and their grounds, to state known defendants federal constitutional neglected at easily ascertainable, be withheld counsel, or cannot corpus. criminal State support used later state trial and Spencer, parte unreasonably hampered. Ex proceedings be would 278, 285; Wood, Crowe United 660; 140 U. S. In re S.U. 266, 289, Johnston, and the 799; U. S. States, Price v. 175 F. 2d dissent. *32 in law autonomy local enforcement
national asset state uncon- through charges must not be eroded indefinite of stitutional actions. discussing case,
As we have stated in the Brown above page 473, seq., et that selection of supra, our conclusion prospective jurors be made from such tax lists as may those required under North Carolina statutes without violation of the Federal no Constitution, point this needs further elaboration. The fact that causes further con- in sideration this case of prospective jurors the selection of is that the tax 8,233 lists show individual taxpayers County Vance of whom 3,136 Negroes. In 38% jury box involved, selected from that list, there were 2,126 names. Of that 145 number were Negroes, 7%. disparity This between accepted by the races would not be this solely on the evidence of the clerk of the com- “good missioners that he selected of of citizens names moral qualified character and and who jurors, to serve as 25 paid had their taxes.” It would not be assumed that County Vance there is not a larger percentage much of Negroes with qualifications jurymen.26 of The ac- tion of the commissioners’ clerk, however, selecting those with “the most property,” economic basis not here, might attacked well account for the few Negroes appearing the box. Evidence of discrimination based solely on race in actually the selection lacking. made is
The trial and courts, district after hearing witnesses, found no racial discrimination in the selection of the prospective jurors. The upheld conviction was as non- qualification We understand his last basis of required. was not Allen, supra, Brown v. page 470, See and General Statutes of North Carolina, 9-1 as amended 1947. § intelligence Moral character and jurors sufficient to serve as statutory Stat., test. 1943, only N. C. Gen. 9-1. Even in 1930 § years age over 10 Census, III, were illiterate. 1930 Vol. 18.5% part 2, p. Texas, 359. 400, See Hill v. 316 U. S. 404. had Court, Supreme the State
discriminatory a this defendant a conviction to reverse acted once v. discrimination, State racial with tainted deemed jury to reverse again 537, and 2d 47 S. E. 229 N. C. Speller, dis- investigation time for adequate when a conviction Speller, State given. not been had crimination a convic- require It would E. 2d 53 S. C.N. protection equal violation Court, this tion, by Our trial. aside to set racial discrimination through con- state compelling responsibility serious delicate *33 criminal overturning state by formity to Constitution clear evi- without be exercised convictions, should of violation. dence clerk’s unchal- should, the think we as we
Disregarding, no there is property, on taxable based lenged selections now names Negroes’ discrimination. of racial evidence compara- requirement If the jury box. in the appear statutory standards and the eliminated, wealth is tive equality increase number would employed, qualification educational moral and by their justified white race. We with the compared service jury Negro number, by comparison, think the small do not itself, enough to establish jury box, is, in this one names discrimination. racial No. by presented problems We have
Third. in- were Negroes, petitioners, two v. Allen. The Daniels on a courts North Carolina and convicted dicted Superior in the Their trial charge murder. peti- and each guilty, in a verdict County
Pitt resulted There is no to death. thereafter sentenced tioner was In addi- introduced. guilt under the evidence issue over at 453—discrimina- p. above objections to the stated tion and refusal to hear jury lists, coerced confessions tion pro- to the objection here on the merits-—there is also of the con- of the voluntariness for determination cedure As the failure to serve the statement of the fessions. appeal decisive, case seems to us we do not discuss on only- in detail the other constitutional issues tendered petitioners were resolved point they against out sentencing state court and the Federal District full hearing Court after of the evidence offered. It Supreme also to be noted that the Court of North Caro- lina alleged refused certiorari to review the invasions of rights sentencing constitutional court and two petitioners permitting efforts of to secure order them apply for coram nobis.27 writ of coram nobis is rights available North Carolina to test constitutional extraneous of the In re Taylor, record. 230 N. C. In S. E. 2d 857. the first coram nobis case the Court said, speaking of its refusal of certiorari: petitioners
“Counsel for were advised, however, that petition might be filed here for permission to apply Superior Court of Pitt County, where nobis, tried, cause was for a writ of error coram through which, if allowed there, they might be heard on the main they features for relief, asked which included matters dehors the record, *34 appeal would to Supreme lie the Court in the event of its Daniels, unfavorable action. S. v. In supra; Taylor (230 re C.), supra; N. In Taylor (229 re N. C.), supra.
“The defendants now petition file a for permission to to apply Superior the Court for a writ. such Their petition does not prima make a jade showing of sub- stance which is necessary bring to themselves within 28 purview the of the writ.” 231 341, N. C. 56 S. E. 2d 646, 647. Daniels, v. 17, 27 State 2; 231 N. C. 341, 56 S. E. 2d N. 231 C. 56 646; E. 196,
S.
2d
232 N. C.
59 E. 2d
S.
430.
28Compare Taylor Alabama,
v.
485 right to the appeal precluded time. This action Court. Supreme State furnished Carolina us. North
This situation confronts with crime. charged those for the trial of a criminal court by themselves counsel, all times had chosen at Petitioners competent to con- Carolina as recognized by North and petitioners’ objections In all defense. that court duct the discrimination, admission jury whether of proposals and instructions or otherwise were heard confessions, an ade- The state furnished against petitioners. decided method of This easily-complied-with appeal. quate of the case on a means to serve the statement included prosecutor in of the from his office. appeal the absence Daniels, 17, 2, v. 231 N. 56 S. E. 2d 7. Yet State C. not taken and the State of North petitioners’ appeal was full trial and statement on Carolina, although the record appeal it, appeal were before refused to consider the its merits.30 corpus
The writ of habeas federal courts is not au- prisoners thorized state at the discretion of the federal only It authorized when a state is in prisoner court. custody violation Constitution United S. 2241. That § States. 28 U. C. fact is to be tested corpus appeal.31 the use of habeas lieu of an To corpus allow habeas in such circumstances would subvert system justice the entire of state criminal and destroy energy punishment state the detection and of crime. Of course, federal habeas is allowed where time has expired appeal without when prisoner is detained without opportunity to appeal counsel, because of lack of Daniels, (11), 2, 4;
30 State v.
231 N. C.
20
56 S. E. 2d
Gen.
N.C., 1943,
Stat. of
1-587.
§
Large,
174, 180; Eagles
Samuels,
v.
Sunal
v.
U. S.
329 U. S.
304, 311;
Yamashita,
1, 8;
Zerbst,
In re
v.
U. S.
Johnson
458, 465;
Lane,
S.
U.
Goto
486 this by Also, or some interference officials.32 incapacity, proceedings even corpus review state habeas Court will if treated habeas though appeal taken, no the state corpus Federal habeas is avail- corpus permissible.33 our refusal such state habeas following able review corpus appeal Failure to is much like proceedings.34 existing question failure to raise a known and of uncon- proceeding prior stitutional or action to conviction or failure, course, Such bars subsequent commitment. objection grounds.35 to conviction on those
North has applied refusing Carolina its law out-of-time review.36 This Court applies jurisdic- its Texas, tional statute the same manner. Preston v. York, 343 917, 933; U. S. cf. Paonessa v. New 344 S.U. 860, certiorari denied because “application therefor was not made within provided by the time law.” We cannot say that North Carolina’s action in refusing review after perfect failure to appeal case on violates the Federal A period Constitution. of limitation accords with our conception proper procedure.
Finally, federal
may
courts
not grant
corpus
habeas
for those
convicted
the state except pursuant
to 2254.
§
32
Cook,
206;
Dowd
Michigan,
340 U. S.
see De Meerleer v.
329
663;
Zerbst,
U. S.
Johnson v.
We have in this opinion of the change prac- in tice North Carolina in the selection of jurors. Our conclusions have been reached regard without to earlier incidents not connected juries with these trials that or suggest past discriminations. Since the states are the real guardians of peace and order within their it boundaries, is hoped that our consideration of these will records tend to clarify the requirements of the Federal Constitution in the selection of juries. Our Constitution requires that jurors be selected without inclusion or exclusion because of race. There must be neither repre- limitation nor sentation for color. By that practice, harmony has an opportunity to maintain essential discipline, without that objectionable domination which is so inconsistent with our constitutional democracy. judgments are affirmed. in
Mr. concurs this result for the Justice Jackson reasons stated in a separate opinion. post, pp. 532, [See 548.] and Mr. Justice Burton
Mr. adhere Justice Clark to their position as stated in Darr v. Burford, 339 S.U. 200, at 219. They believe that the nature of proceed- when the that, is such for certiorari petition
ing upon denial stated, of certiorari for a denial reasons appli- subsequent upon disregarded passing should be possible that this to note source relief, except cation been exhausted. relief has cases these judgment of the Court join
They insofar except opinion in the they concur 456-457), (pp.A II, in Part Subdivision contain, it may although the reasons that, indication elsewhere, any those reasons nev- stated, be not for a of certiorari denial They also inferred from the record. may be ertheless to which of the considerations recognize propriety of a fed- invites the attention Mr. Frankfurter Justice for a writ of petition with a eral when confronted stated. corpus under the circumstances Frankfurter.* Mr. Justice rele- these cases and their litigation
The course of *38 opinion. are set out in Mr. vant facts Justice Reed's general questions restricted to the two opinion This pass on be considered before the Court can which must by these cases. The two specific presented situations general problems are these: significance certiorari,
I. of a denial of legal The presented to be here under the doctrine required case Burford, application of Darr v. S. when an U. corpus for a writ habeas before a dis of thereafter comes trict court.
II. bearing proceedings that in the State disposition applica- courts should have on the of such tion in a district court. Mr. of Mr. Justice Burton position notation *[For Jus points, ante, p. 487; tice Clark on the same see for notation of Douglas position of Mr. and Mr. on the Justice Black Justice points, post, p.
same see 513. In addition to the three cases decided Opinion Court, ante, p. 443, opinion applies in the also to Baldi, post, p. United States ex rel. Smith 561.] I. the effect district light sheds no
Darr v. Burford these in one of our of certiorari give court is to denial ruling limited to expressly cases. That decision of this Court must jurisdiction the certiorari “ordinarily” attempt in an to secure review a State be invoked prior application to an court’s refusal relief Burford, habeas in a Darr v. corpus district court. S., at 214. The fact that two members of the U. it necessary majority appro in Darr v. deemed Burford priate to in the any disavow concurrence “indication” given Court’s effect is to be to the denial opinion any emphasizes ruling certiorari that no such can be at tributed to Darr v. It was the of Mr. view Burford. Justice Burton and Mr. Justice Clark “that nature proceeding that, is such when the for a reasons denial of stated, certiorari are not the denial should be disregarded upon a passing subsequent application for relief, except to note that this possible source of relief has been Burford, exhausted.” Darr v. supra, at 219. Of course, when the reasons are given, the decision to deny will have the effect indicated the reasons stated. But we know how puzzling best it often would be state why the Court denied certiorari even parties when we are to the denial.
In the three cases now here from the Fourth Cir- cuit, Appeals the Court of relied on our heavily denial of certiorari in ruling against applications for federal prisoners.1 State opinion Its in No.
1 20, Allen, In No. speaking Daniels v. after of the denial of certio- rari, Judge the District any felt it difficult to impartial believe “that person light procedural would conclude history in the of this clearly case appears petitioners that it that were denied the substance of a fair trial.” petitioners He concluded the had trial, had a fair that the writ should be petitioners vacated “because not available to procedural on the history, so, petitioners and if the are not entitled 490 in Nos. 22 and decision the curiam on, per and relies
20 based on by that court decision an earlier quotes, 32 that thought had if this Court that assumption express rights, cer- of constitutional denial record showed charges. Daniels they their discharge” did not substantiate since to Appeals stated 208, 213, Crawford, Supp. 216. The Court 99 F. v. petitioners necessary proposition that only consider the it was that history of procedural to the writ in view not entitled were petitioners affirmed, saying could that the case comply with the of their failure to the results corpus circumvent only peculiar hardship in allegation of Their procedural rules. State before procedural rules was complying with State day’s one default proper “and, application for certiorari Supreme in their Court thought that, requires if it had that we assume respect court for that to a denial amounted of the rules court enforcement that such granted death, have it would hearing men condemned to a fair or the trial Supreme State] either to the [of certiorari squarely, we The case falls the case. have reviewed and would Hawk, parte Ex Supreme Court in said think, what was within 763, 768, Allen, 769. v. 192 F. 2d 114, 118, . . . .” Daniels U. S. Allen, it “felt Speller District Court stated that 22, v. No. In deny petition for of habeas disposed writ strongly history” evidence on the procedural but decided to hear solely on the evidence, dismissed, “upon the hearing the Court merits. After Courts, history for the rea- and the record the State procedural petitioner corpus proceeding available to is not son that habeas question upon raising passed in those purpose of the identical question, Further, same even if entitled to raise the Courts.” Speller Crawford, v. F. petitioner his claims. did not substantiate Appeals parte Supp. 92, 95, Ex Hawk and 97. The Court cited 498, Smyth, quoted opinion v. F. 2d from its in Stonebreaker respect” 499, language 20, “proper in No. the same effect as the Supreme granted compels Court would have the conclusion that rights thought petitioner’s had it constitutional violated. certiorari Speller Allen, v. 192 F. 2d Allen, No. v. Court relied on Stone
In Brown District Smyth noting writ, petitioner v. breaker and denied the had impartial apparently had a fair and trial in the State courts Supreme that the Court had refused to review the State court action. Crawford, Supp. Appeals F. Brown 866. The Court of con together 22, and, above, sidered the case with No. as stated affirmed. *40 Smyth, Stonebreaker v. granted. tiorari would have been F. 2d 499. the District directing a rule If we were to sanction certiorari, let a denial of give any Courts to effect to re- practical is the judicata alone the effect of res would be Circuit, we position sult of the of the Fourth juris- since certiorari ignoring recognized actualities ever sixty than Court more upon diction was conferred this years ago. been jurisdiction
From has inception its certiorari that it was treated for what it is in view of the function permit this Court designed devised to serve. It was having due manageable proportions, within keep ad- for the wise regard indispensable to the conditions here, the judication of those cases which must be decided By successive business that is allowed to come before us. discretionary jurisdiction Congress enlarged measures 1925, supple- until, by Judiciary the Court Act jurisdictional mented the Court’s own invention scope statement in relation narrow of residual to the of its docket. appeals, complete the Court became master authority in the Court governing consideration was wrong, do which, right to decline to review decisions present questions gravity. sufficient Whatever law, source of these whether the common stat- questions, gravity utes or Constitution, other cases of obvious enough more than time absorb the Court’s Brothers, 240 thought. Cf. Hamilton Shoe Co. v. Wolf S. U.
It every within the member of experience not, do to, frequently that we do not have reach that it is not of suf- the merits of case to decide years importance Thirty ficient to warrant review here. ago Bar not to sharply the Court rather reminded the strength opinions draw for lower from the fact that writ they were left unreviewed here. “The denial of a upon the opinion expression no imports certiorari many times.” been told bar has case, as the merits *41 have re- Carver, We S. U. States v. United only means a denial of certiorari indicated peatedly disclosed, is seldom another which that, for one reason may conflicting reasons infrequently and not certainly may have merits and to do with the nothing have aby taken of the merits any with view nothing do members were not four Court, the there majority of be heard. the case should thought who the Court in type fundamental rule the from this Any departure on a show- considering ought to be based of case we are all other certiorari, unlike the ing that these denials adjudi- denials, equivalents in the essential are fact inquiry results of the detailed cation on the merits. The contrary in show that is Appendix, post, p. 514, certainly the fact.2 There is no more assurance that these have been canvassed on their merits than petitions is ordinary true of cases within the domain of certiorari jurisdiction.
Indeed, petitions by there is less assurance that State prisoners could be than considered their merits case with ordinary petitions for certiorari. To treat de- nials of certiorari in applications cases which for habeas subsequently adjudications are made effect as here, presupposes, least, at the that such “determinations” attempt statistically An to determine the factual context representative group corpus applications of habeas is summarized in post, 514; Appendix, p. study reported there reflects the Supreme examination of the 126 Court files in cases in which certio- prisoners rari during was denied to State the October 1950 Term and corpus applications subsequently habeas made in federal district courts, response ques and examination of materials obtained in concerning applications tionnaires sent to the District Clerks dispositions of those 126 cases in the District Courts. more issues are in which litigation records based on are as is after competent lawyers, by carefully shaped or less cases. Such of certiorari ordinary flow of the all true study baseless wholly to be shown assumption is is based. opinion which this files on 126 certiorari picture that falsifies the assumption also an It is Judge. facing the District corpus problems law- drawn rarely certiorari petitions These certainly do unintelligible are almost some yers; for our necessary of issues statement present clear of the Court's pressure understanding, view run of cer- records we have The certified work.3 almost unknown understanding are to assist tiorari cases in which of cases Indeed, the number in this field.4 *42 happened what necessary prove papers of the most Whether striking. not filed is in proceedings the State perfunc- a simply adjudication been an there has rarely a below is ascertainable. denial of claim tory con- to base a solid enough on which do we have Seldom adjudication. adequacy the State as to clusion a trial of the claims something told about if we are Even there, only peti post, p. As 13 of 126 Appendix, shown See course, may lawyers; others, been drawn have drawn tions were sign prison who did not choose by lawyers in or out either forth in the experience affirms the conclusion set petition. But our petitions, legal adequacy of survey based on one test through petitions large cases, must be combed in a number ordinary issues, certainly more so than is true of the much find the petitions for certiorari. 1, post, pp. post, pp. 518-519. Appendix, 516-517 and Table See may rarely papers account for our we do have sufficient The fact that grant, happened below. disputes, we as to what has even in the cases very least, Pennsylvania, See, g., Uveges v. 437. At the e. 335 U. S. below, petitions but even want to have the and the orders we would (Item c”), minimum, in Table Part 2 shows “a and as to this only trial in which the issues were raised after 53 of the cases was this to us. minimum available transcript we almost never have a applicant asserts, in determining to assist us whether proceedings
of these as a adequate.5 Equally unsatisfactory trial was evaluating proceedings filing means for the State is the than one-fourth of the is more less cases opinions; order of the State courts filed.6 perfunctory than We different very would have to have records and to alter if radically of these cases a denial our consideration could to be an undisclosed fairly be deemed decision In a few the issues before the merits. cases District In cases, had not even been raised here.7 other on the issues differed from emphasis put considerably here put on them the District Courts. Alice could understand, I, but not how under such circumstances a if judge minded, district could assume he is so that we now to him. question presented “decided” no ground holding Just as there is that our denial judicata, equally is effect res so is there no basis for Judge leaving the District free to decide whether we passed on the merits. For there is story. more Judge ordinarily The District knows painfully little of the It painfully little we knew. rare case indeed in which any the District Court has information concerning the In proceeding. certiorari over studied, cases 90% papers allegations there were neither filed nor made indi- cating any way petition what issue the for certiorari *43 In presented.8 even fewer cases was there any indication that any papers from the proceedings State had been be- fore this It may Court.9 be said that the District Court 5 Appendix, 2, post, p. See Table Part 519. 6 Appendix, 1, post, p. See Table Part 518.
7 Appendix, post, pp. See 525-526. 8 Appendix, 2, post, p. See Table 523. 9 Appendix, 1, post, p. See Column 3 of Table done.10 It is seldom here. were that papers for the can call a record that such unlikelihood Moreover, view require- a such judgment, a sound enough for reveal could Judge the District But otherwise futile. be ment would little of cases what number negligible in a only know can to decide liberty at ishe say To us. had before we what a invites case merits on the passed we whether would We speculation. be idle cases, all in almost must, on our to judge rest federal district busy inviting be judgment exercise failure his to and cloak denial give can that he awith statement compliance formal him be to always must that almost something to meaning meaningless. pro- though these cases as to act inadmissible
It leaving fashion, orderly in an through the courts ceeded with effectively be traced which can neat behind records it Although traced. once enlightenment, promise a dis- in which many cases to difficult conceive seems proceedings record with a full presented judge, trict of cer- the denial to relevant effect give any here, could will also a case that such negligible likelihood is tiorari, the materials enough has he very few which be one of him discretion give To before us. know what can as a “determination” of certiorari interpret denial futile or it is either rationally justified rarely be so District weigh allow such denial to mischievous disposition. Court’s proper a matter of decided, it was
In Darr Burford relations between regard that due for the administration, in the makes it undesirable authority and federal State dis- to a federal permit application ordinary case in this studied, an order was entered of the 126 In cases among Altogether, papers petitioner. returning original to the State denials of relief to applications for review of State the 329 Term, entered. were 3 such orders prisoners in the *44 trict court on a which has already claim been presented to the State court before we have an opportunity had to review the State court action here. To hold, how- that a ever, denial of certiorari may be deemed to be approval of the decision of the State court would be some- thing beyond far fashioning a rule the administration judicial If business. judges district were authorized deny an application for corpus habeas merely because may issues have been considered denying a petition for certiorari, the duty, which has been entrusted Federal Courts since the enlarge- ment of scope jurisdiction by the Act of 1867, to deal judicially with applications for writs of habeas corpus by State convicts would be left to the unbounded, because undefined, discretion the District Judges throughout the land. Judges dealing with the writ of habeas corpus, as with temporary injunctions, must be left some discretion —room for assessing fact and balancing conflicting of public considerations interest— if law is not to abe Procrustes bed. But discretion must judicial be It discretion. must subject be to rational criteria, by particular situations may be adjudged. To allow applications for habeas corpus to be denied merely because it is deemed, on no or, reasonable at best, on the most fragile foundations, the matter has already adjudicated been here, is to afford no criterion, but merely a shelter for judges district to respond accord- ing to the individual will.
We must not invite the of judicial exercise impres- sionism. Discretion there may be, but “methodized analogy, disciplined by system.” Cardozo, The Nature of the Judicial Process, 139,141 (1921). Discretion with- out a criterion for its exercise is authorization of arbitrari- ness. The Supreme Nation’s Court ought to be able to do better than to tell the Federal Judges of land, a field so vital as that of habeas corpus to vindicate con- *45 please they as may do they rights, stitutional —that considera- by guided, to be bound, nor be not to they are formulation. of rational capable tions of federal the conscientiousness impugn is not This for applications disposing in large at if left judges; thrown necessarily be would they corpus, writ habeas a that would judgments, individual their upon back but of arbitrariness. not of law be the exercise ordinary in the of certiorari our denial why The reasons a other than things number of any be run of cases can by the circum- multiplied only are the merits decision on we conclude And so of petitions. of this class stances denial of certio- others, cases, as corpus that in habeas on opinion “expression as an interpreted rari cannot be S. Large, U. Sunal the merits.” II. of certiorari of the denial significance
The issue This is not so as in the Court. sharp a division raises upon in the State courts bearing proceedings for a writ of application disposition is opinion This District Courts. in the Federal corpus are matters that explicit make detailed designed to opinion. of Mr. the concern also Justice Reed's a should which district court circumstances uncommon ought greater to be defined with application entertain determining should be criteria particularity, The views of the Court hearing proper. when opinions be drawn from the two may thus questions these jointly. begin by making explicit some it appropriate
I deem the federal habeas underlying basic considerations may support be summoned jurisdiction. Experience attempts most claims these to obtain the belief that without merit. Presum- of State convictions are review with the State courts. ably adequately dealt they Again, no one can strongly feel more than I do that a casual, opening unrestricted of the doors of the federal courts to only these claims not would cast an undue bur- upon den those courts, would also disregard but our duty to support and not weaken sturdy enforcement of their criminal laws by the States. That open- wholesale ing of prison State doors federal is, courts however, not at all the real issue before us is best indicated survey recently prepared in the Administrative Office of the United States Courts the Conference of Chief *46 Justices: of all federal question applications for habeas corpus, some not even relating to State convictions, only 67 out of applications 3,702 granted were in the last seven years. “only And a small number” of these 67 applica- tions resulted in release prison: from “a more detailed study over years the last four . . . shows that out of 29 petitions granted, there only were 5 petitioners who were released from penitentiaries.”11 state The meritorious claims are few, but our procedures must ensure that those few claims are not stifled by undiscriminating generalities. The complexities of our federalism and the workings of a scheme of government involving the interplay of two governments, one of which is subject to limitations by enforceable the other, are not to be escaped by simple, rigid rules which, by avoiding some abuses, generate others.
For surely it an abuse to deal too casually and too lightly rights with guaranteed by the Federal Constitu- tion, even though they involve limitations upon State power and may be by invoked those morally unworthy. Under guise of fashioning a procedural rule, we are Corpus Habeas Cases in the Federal Brought Courts State Prisoners, Administrative Office of the United (Dec. States Courts 4 16, 1952). See also Appendix, post, pp. 526-527 especially 526, n. discussing the reluctance of the grant District Court to the one application out surveyed 126 there granted. which was ju- efficacy practical wiping out justified not Courts. the District by Congress conferred risdiction indiscriminately all these cases in effect treat Rules this head abolishing fall far short do not as frivolous jurisdiction. of federal the enforcement have left could Congress the administration governing rights constitutional the State exclusively to in the States justice criminal duty as the under the same tribunals are These courts. States under the United respect rights federal courts 82; No. Federalist, See Constitution. Claflin Katt, 386; S. Houseman, Testa v. U. 130; 93 U. S. Indeed, jurisdiction L. Harv. Rev. Note, 60 writs of habeas courts to issue to the federal given 81-82, extended Judiciary Act, 14, Stat. § the First authority of the United custody under only prisoners the power until of 1867 that It was not the Act States. under applicant writ was extended to to issue It is not for us to determine of a State court. sentence the federal have been vested in power should whether with his usual acute Bradley, As Mr. Justice courts. Act, passage after the of that long ness, commented *47 prisoner, a after may appear unseemly it that “although by be set at court, liberty in a state should conviction escape seems to be no corpus, on habeas there judge single Bridges, (5th Cir.) 2 Ex Woods parte from the law.” in a feeling recently pro has been echoed 432. His Judges of Senior Circuit of the Judicial Conference posal See by three-judge be heard courts.12 these cases Conf., Rep. proposal has See Jud. The now been abandoned. Bradley subject, suggestion Mr. on the 1947, p. 17. A Justice proposal Bridges, supra, parte Ex loc. cit. is reflected in the judgment final of the States that the Conference of the Chief Justices subject proceeding “be to re highest in a criminal a State’s only by Supreme Court of the United States.” or reversal view 1952). (November 249-250 25 State Government 23. But the wisdom of such a 1943, p. Jud. Conf. Rep. Congress consider, par- in the law is for modification expanding concept of the effect of the ticularly view process upon of due enforcement the States their It is for fair give criminal laws. this Court to effect to jurisdiction as by Congress. the habeas enacted federal courts that By giving jurisdiction, Congress legislation has imbedded into federal the historic func- corpus adapted tion of habeas an reaching enlarged g., Holohan, See, Mooney area of claims. e. v. 294 U. S. Zerbst, 103; Johnson S.U.
In exercising power thus bestowed, the District Judge must take due proceedings account that are challenged by application for a writ. All that has gone before is not to ignored be as irrelevant. But the prior State determination of a claim under the United States Constitution cannot foreclose consideration of such a claim, else the State court would have the final say Congress, by which the of 1867, provided Act it should all, not have. Ex parte Roy Cf. U. S. 248-250. A State determination may help define the claim urged application may the writ and bear on the seriousness of the claim. That most claims are frivolous important has an bearing upon procedure to be fol lowed judge. district prior State determination may guide his discretion in deciding upon appropriate course to be followed disposing of the application be fore him. The State may record serve to indicate the necessity of further pleadings or of a quick hearing to up clear an ambiguity, the State record may show the claim to be frivolous or not within the competence of a federal court solely dependent because on State law.
It may abe matter of phrasing say whether we the District Judge summarily denies application for *48 a writ accepting the ruling of the State court or by making an independent judgment, though he does so on since But reveals. record the State what of the basis phras- the important it is thought, mirrors phrasing court. Our federal a before true issue the not obscure ing District the has told Congress because arises problem when there rare, however occasions, those act on Judge to is the ulti- which causes are meritorious Vague, such. to be designed and relief only mate and give Court to District the permitting directions undefined fall short determination State prior to a “consideration” surface to the bringing for guidance appropriate of to indiscriminately may serve They case. meritorious granted, been have where one should hearing preclude into the be so woven may for denial basis yet and to deference improper that an the result texture cannot issue a constitutional treatment State court to give to effect If arewe review. on be corrected even improper intru- avoid time at the same and the statute judges— by federal process criminal into the State sion intrusion there is such thinking no basis there is dramatically, quantitatively,” think “men unless direct must p. 293—we Papers, Legal Holmes, Collected drawing while question federal probe them to them guide proceedings prior records of available doing so. nature and very cautions experience course,
Of formu- corpus precludes of habeas the writ function 225 District standards fool-proof lation of elsewhere Here as automatically apply. Judges can attribute we must administration judicial matters men appropriate sense sturdiness good them the we Certainly judge. of a power federal who wield assuming fashion rules if we qualities these get will not preclude order important, it is contrary. But in differ- the Constitution enforcement individualized as the specifically lay down Nation, parts ent or directions permits standards problem nature of *49 govern disposition that should the District Judges of applications for corpus by prisoners habeas under sen- tence of State courts.
First. Just in all litigation, prima other a facie case must be made out petitioner. application The should be dismissed when it fails to ques- state federal tion, or fails to forth facts if which, accepted set at face value, would applicant entitle relief. to
Care will naturally be taken that the frequent lack of technical competence of prisoners strangle should not consideration of a valid constitutional claim that is bun- glingly presented. judges District have resorted to vari- procedures ous to that end. Thus, a lawyer may be appointed, in the exercise authority inherent g., District Court (cf., e. Ex parte Peterson, 253 U. S. 300), either as an amicus or as counsel the petitioner, to examine the claim and to report, the judge may dismiss the petition without prejudice.13
Second. Failure to
exhaust
available
remedy
State
is an obvious ground for denying the application. An
attempt must have been
made
the State court
pre-
sent
the claim now
asserted
the District
Court,
compliance with § 2254 of the Judicial Code. Section
not,
does
however, require repeated attempts
in-
voke the same remedy nor more than one attempt where
there are alternative remedies. Further, Darr v. Bur-
requires “ordinarily” an application for certiorari
ford
the United
Supreme
States
Court from'the State’s denial
of relief. Cf.
Collins,
Frisbie v.
the very foundation of a
proceeding, as Moore v. Demp
sey,
S.U.
86. Cf.
parte
Ex
Lange,
Third. If the record of the State proceedings is not filed, the judge is required decide, to with regard due to efficiency judicial administration, whether it is more desirable to call for the record toor hold a hearing. Ordi- narily, where the issues complex, are it will simpler be to call for the record, certainly the first If instance. the issues are simple, or if the record is called and is found inadequate to show how the State court decided the relevant historical facts, the District Court shall use ap- propriate procedures, including a if hearing necessary, to decide the issues.
Such flexibility in the inquiry into the facts is neces- A sary. printed record reflecting orderly procedure through the State courts and showing clearly what has in these available rarely is courts in the State
happened a record calling for expense effort cases.14 might prepared proceedings transcript having especially hearing, a short than more burdensome be settled. easily simple and are fact questions where proceedings to State deference unnecessary It seems relative regardless Judge, District say that always call must other, or the procedure one expense re- satisfy To proceedings. the State everything enough know want to he will of exhaustion quirements pre- him was presented claim know whether either is if the claim But courts. in the State sented and if extreme, substantial other at the or, frivolous would record the State to call for undisputed, facts judge frivolous, the is If the claim little. probably avail If the ques- without more. application deny should judgment legal his must exercise which he tion one be sufficient may it statute,15 under the *51 pleadings the presented perhaps information, have disposition as to the State, or applicant the unduly rigid It seems of fact. questions disputed any for the State record Judge call District to the require to in every case. In differ. adjudications
Moreover, the kinds State and hearing a rendered has held some the State cases may there fact; findings of specific on based a decision before had court which by higher a State been review have and briefs opinions testimony, the pleadings, it the only for burdensome would make certainly appeal. It to courts were of effort if the federal repetition and useless the pole At the other is in cases. facts such rehear the badly a denying drawn memorandum order perfunctory is not en- petitioner the stating -simply that petition 1, post, pp. 518-519. Appendix, See Table 507-508, post. 500-501, supra, pp. pp. See give the same Judge cannot The District titled to relief. first; the as he does to adjudication weight to this sort the statute exercising judgment for the he has no basis him to exercise. requires proper it determining when is
These criteria relating in the appropriate to me hearing hold a seem the realities of these cases. corpus provisions to writs grant District Courts to empowers the Section in custody violation prisoners of habeas 2243 commands Federal Constitution. Section award the writ “entertaining” application an judge from appears an “unless it or issue order show cause ... not entitled applicant that is application word “enter- enough It seems clear that thereto.” hearing, a and Mb. holding tain” does not refer to Jus- that it refers to the District suggestion tice Reed’s is unsat- hearing “proper,”16 that a is Court’s conclusion proviso that no writ or order need be issued isfying.17 not entitled application applicant if the shows permits “entertaining” and nevertheless certainly thereto failure summarily dismissing claim, failure to state from the remedies, proof papers to exhaust State including proceedings, the record of the State themselves, time, if no filed, that there is claim. At the same command that the writ or order be issued some hardly requires hearing every cases such case. As any litigation, pleadings show, sepa- may either rately together, or taken there is no claim. It can hardly by “entertaining” applica- be contended that issuing order, tion to the extent of the writ or an *52 16Opinion Reed, supra, p. of Mr. Justice Johnston, Mr. Justice Reed’s citation of Walker 312 U. S. might “proper” to indicate what be a case in which to hold a hearing puzzling, requires, corpus is for that case in habeas actions by prisoners, hearing application federal that a be held if the and question the answer return to the writ raise a of fact. if hearing, a the holding himself Judge commits
District unques- shows cause order to show or the the writ return discharge.18 not entitled is applicant the tionably that proceedings the State record of Fourth. When the turns the issue that may appear it court, the before is a recital (in the sense the facts and that basic facts narrators) of their credibility and the events of external applicant. against adjudicated and tried have been ascertaining process in the be found flaw a vital Unless may Judge District court, in the State facts such proceeding in the State determination their accept adjudi- State hand, theOn other application. deny corpus the habeas cannot, under of law questions cation precisely these binding. It as accepted be statute, to decide.19 judge is commanded federal that the questions facts, exter- of the historical A State determination after made hear- occurred, may have been nal events whose longer available or recol- no perhaps witnesses ing passage been may have affected lection later judicial determination has one time or fact these considerations sure, To be been made. already all long at against hearing claims after equally argue making habeas Congress, by place. took But the facts other considerations determined that available, has rules, appropriate to devise prevail. We left recog- rules preclude does not congressional determination testimony weight to giving great nizing the soundness principle it does not undermine heard, just earlier a language or order is returned “When writ § every hardly hearing day hearing .,” requires be . . a shall set may deny Judge is issued. Just as the District case in which a writ applicant hearing application if the shows that return without may remedy certainly may he do—so exhaust the State failed to —as conclusively hearing dispose the return he without a if case applicant’s state claim. shows failure pp. 507-508, post. See *53 the burden of proving facts inconsistent judi- with cial records in all proceedings of this kind is heavy. Where the ascertainment
Fifth.
of the historical facts
does not dispose of the claim but calls for interpretation
of the legal significance of such facts, see Baumgartner v.
States,
United
For instance,
the question whether established pri-
mary facts underlying a confession prove that
the con-
fession was coerced or voluntary cannot
rest on the
State decision. See, e. g., Haley v. Ohio, 332 U. S.
596, 601 (concurring opinion) and Stroble v. California,
Although of such consideration the State to eyes his shut to could, the State to attached be is to weight binding no issues, greater. is requirement congressional The determination. though it, when say the last have cannot court State be may procedurally what and consideration on fair con- federal a misconceived have may fairness, deemed right. stitutional take 2244 § under may judge district federal A Sixth. federal aby relief of denial prior consideration into to applicable of is course 2244 § sense in that court, and statutory gave merely 2244 Section prisoners. State Loisel, 265 Salinger v. by established practice to the form now 2244 § what and decided there 224. What S.U. need may, he although judge, a federal that authorizes a habeas of denial prior into anew inquire not no presents petition if “the a federal application and determined, and presented not theretofore ground new will justice of ends the is satisfied or court judge the inquiry.” such by be served practical the to they addressed standards, These discre- the recognize Judge, District facing the situation relevant bemay whatever weight to give to judges tion of implica- full the preserve yet proceedings, State in the Judge District Congress of requirement of tion pris- a State presented questions constitutional decide considered carefully been have his claims after even oner to distribute power has Congress courts. State States United States the courts among fit has seen It claims. federal to determine jurisdiction law of federal errors to review power give give to in addition determinations, and in State claims, federal into inquire power courts federal lower by way of corpus. Such power is in spirit our inherited law. It with, accords and is thoroughly regardful of, “the liberty subject,” from which flows right in England go judge from to judge, any one of whose decisions to discharge prisoner is final.20 Our rule is not so extreme inas England; § does place some limits on repeating applications to the Federal Courts. But it would be in disregard of what Congress such a that “in terms the words 603, 610, where the House of Lords See matter as the Secretary 39 & 40 Viet. State present,” 380] [of § are wide the House of Home Affairs the Appellate *55 enough ruled that Lords has no v. O’Brien, to give despite Jurisdiction Act an [1923] jurisdiction appeal the fact A. C. to appeal hear an in a corpus habeas case that went in favor of “the liberty subject.” It noting is by worth that this decision the House of applied Lords and extended an earlier decision the of (Cox House of Lords Hakes, 15 A. C. (1890)) in which so powerful group a judges of as Halsbury Lord L. C. and Lords Wat son, Bramwell, Herschell and Maenaghten joined. The tenor of that sufficiently decision is by quotations indicated the that follow. Lord Halsbury wrote: days “In of pleading technical informality no prevent allowed to the question substantial of right the of subject the liberty to his being heard and right determined. The to an instant determination as to the of existing lawfulness imprisonment, the twofold quality of such a that, determination if liberty favourable to it was appeal, without if might unfavourable it be renewed until each jurisdiction had in turn exhausted, been have from time to time pointed been by Judges out securing in a exceptional marked and personal manner the subject. freedom of the It was proceeding anot in a suit but was summary application by person detained.” C., 15A. at 514-515. And this is from the judgment of Lord Herschell: “No Court by was bound by view any taken other, or felt itself obliged to follow the law laid down it. Each Court exercised independent its judgment upon case, and determined for itself whether the return to the writ established that the detention of the applicant was in accordance with the person law. A detained to access prisoners State deny required expressly
has federal courts. of Office Administrative of figures reliable The during showing that p. Courts, supra, States United told, were dis- all prisoners, State five years four the last perad- beyond courts, prove district by federal charged worry bogeyman, fear, ais baseless it venture courts district allowing upset be convictions lest State of on behalf applications to entertain jurisdic- as this Insofar sentence. under State prisoners claims to entertain courts district enables federal tion rights guaranteed have denied Courts Supreme that State aof not a case Constitution, it is United States by the It is court. higher on a sitting judgment lower Clause Supremacy respecting aspect merely one than higher is whereby federal law the Constitution the mem- designate Congress for the It law. State express judiciary to federal hierarchy in the ber has authorized Congress fact that law. higher rather higher law organ be the courts district Court, does exclusively this Appeals, or than a Court higher to overrule a lower court allows a it mean how Congress the choice expresses merely It court. be asserted. law should authority federal superior *56 of in awareness of I to no member yield is that dealing of with crime difficulties enormity of the I am society. And of our industrialized the concomitant for this responsibility the fact mindful that deeply for a I would not with States. largely rests task he obtained custody might proceed court to until thus from security upon thus liberty. which was ... I need not dwell his say imprisonment. against It is sufficient to any unlawful afforded custody any if one the tri- person be detained could no having of habeas was of power to issue writ bunals custody Id., at 527-528. opinion that the unlawful.” hamper moment them in the of this discharge effective responsibility. am I Equally legal aware that misuse of procedures, whereby the administration of justice criminal is too often rendered leaden-footed, is one of the disturb- ing features about justice. American criminal On other hand, it must not sight be lost of that there also abuses law-enforcing agencies. It does lessen the mischief that it is due more often to lack of professional competence and want anof austere employ- ment of the awful processes of justice criminal than to wilful misconduct. In this connection it is relevant quote the observations one of the most esteemed of General of Attorneys States, United William D. Mitchell:
“Detection and punishment of crime must be ef-
fected
strictly lawful methods. Nothing has a
greater tendency to beget lawlessness than lawless
methods of law enforcement.
greater
the diffi-
culties of
detecting
punishing crime, the greater
the temptation to place a strained construction on
statutes to supply what may be thought
to be more
efficient means of enforcing law. The statutory and
rights
constitutional
persons
all
must be regarded,
and their violation, inadvertent or otherwise,
to be
avoided.”
(Department of
release,
Justice
April
1929.)
Unfortunately,
instances are not
wanting which even
the highest State courts have failed to recognize viola-
tions of these precepts that offend the limitations which
Constitution
the United
places
States
upon en-
forcement by the
States
their criminal law.
g.,
See, e.
De Meerleer v. Michigan, 329 U. S. 663, and Marino v.
Ragen,
habeas superior override not should court inferior that an tag the against objection fit been a have not would Congress the with which jurisdiction of exercise Courts. District invested procedural in the corpus of habeas uniqueness The It emphasized. too often be cannot our law of armory it available in that remedies all other from differs restraint person’s aof legality question bring into Of course detention. for such justification require and readily be may doors prison that mean does exacted may be explanation mean It does opened. of boasting not the It is closed. remain they should why corpus of habeas the writ treated has empty rhetoric Anglo-American in the freedom of safeguard basic as the for been has writ great “The world. defence sufficient only best and esteemed centuries for writing Chase, Justice Mr. Chief freedom.” personal history Its 85, 95. Yerger, 8 Wall. parte Ex Court, unavailability and system legal in our function and enough naturally societies totalitarian inwrit differentiating factors decisively one of as regarded governments. and totalitarian democracy our between health moral for writ significance by all amply attested been society has kind of our on our institu- jurists, and commentators, historians great characterized been appropriately has It tions. liberty.” English bulwark principal “the Hallam well as for evil as potentialities has the writ But orderly may undermine of the writ Abuse good. forces weaken the justice therefore administration for civilization. are essential authority that into bringing conditions The circumstances obviously potentialities such remedy having legal action *58 cannot be defined with a particularity appropriate legal remedies of much more limited scope. To attempt rigid rules would either give spuriously concrete form to wide-ranging purposes or betray the purposes by strangu- lating rigidities. Equally unmindful, however, of the purposes of the writ —its history and its functions —would it be to advise the Federal District Courts as to their duty in regard to habeas corpus in terms so ambiguous as in effect to leave their individual judgment unguided. This would leave them free misuse the writ by being either too lax or too rigid its employment. The fact that we cannot formulate rules that are absolute or of a definite- ness almost mechanically applicable does not discharge us from the duty of trying to be as specific accurate and as the nature of the subject permits.
It is inadmissible to deny the use of the writ merely because a State court has passed on a federal constitu- tional issue. The discretion of the lower courts must be canalized within banks standards governing all federal judges alike, so as to mean essentially the same thing to all and to leave only the margin of freedom of movement inevitably entailed by the nature of habeas corpus and the indefinable variety circumstances which it bring into play. Douglas. Justice Black and Mr.
Mr. Justice We agree with Mb. Justice Frankfurter our previous denial of certiorari in a case should given be no legal significance when an application for a writ habeas corpus in that case comes before a Federal District Court. We also agree in substance with the expressed views Part II of his opinion concerning bearing the pro- ceedings in the State upon courts disposition of an application for a writ of corpus habeas in the Federal District Court. OF OPINION TO
APPENDIX FRANKFURTER. JUSTICE MR. procedures wise formulating a view With appli jurisdiction corpus habeas federal
exercise federal of all made study prisoners, by State cations prisoners applications district *59 applica prior whose prisons in State sentences serving Court Supreme States United the for certiorari tions the during denied been had proceedings State from the following first the Term, That Term.1 1950 October of because was chosen Burford, in Barr decision in initiated actions corpus habeas likelihood greater in that certiorari of a denial following Courts the District in cases of true be would than terminated be would Term peti The Term. last denied been had certiorari and Term 1950 October in certiorari for tions can corpus habeas for applications subsequent of number typical. be said be fairly compared for certiorari petitions all A list such Fed- in the applications corpus habeas all lists with 1952.2 May, until October, from Courts District eral petitions whose petitioners3 different 126 result, As a October into 1 continued but earlier filed cases were Included into continued but 1950 Term October in the filed Term; cases 1950 were excluded. terms later Admin of the 2 ready cooperation had we have work this all In particularly Courts, more States United Office istrative Jr., Spaniol, Joseph F. Esq., Thiel, and S. Esq., Shafroth, Orín Will Nor Courts. District States the United Clerks Esq., and Esq., had Trautman, T. that Donald share important should study go unmentioned. carrying out this other with codefendants were who Excluding eight petitioners peti other those issues same presented who and petitioners Courts, District again in appeared petitioners all, In tioners. “petitioner” “case” words cases. separate only 126 but “petitioner” cases; when to the in reference be used both will pre prisoners or more as one be read used, should it “applicant” clarity, the For trial. same arising out claim senting the same certiorari or other comparable relief4 from State decisions were denied here were found to have brought subsequent proceedings5 in the Federal District Courts. Thereupon, a questionnaire was sent out concerning each habeas corpus application, and the answers to those question- naires, together with a study Supreme Court files, form the basis the survey.
The data are here set out in chronological sequence and arranged with relation to the issues they affect. The information concerning the Supreme Court proceedings is set out first, in I, Part and in II Part that concerning the actions the District Courts. prisoners will be “petitioners” referred to as for certiorari in the
Supreme Court “applicants” for habeas corpus in the District Courts. 4Cases petitioners in which Supreme sought original or mandamus or other relief have been included in study, unless federal district court already relief had been in *60 voked so that corpus the application habeas could not interpreted be as reviewing a State court determination. Petitions for certiorari or applications for other relief in Supreme the Court were not included if on dismissed motion petitioners. 5In cases where two petitions or more for certiorari were made by single petitioner a during the October Term, 1950 that case was analyzed presented which the issue or the course proceedings of later presented in the District Court. Where applications several for habeas have been made in the District Courts, appli cation nearest in time to the denial of certiorari used, was unless (a) application the first was rejected for formal defects, such as failure allege exhaustion of State remedies or failure to clearly set out the course of the proceedings, and the second application corrected defects; those (b) or the (or later) second a application, unlike the first, presented the issue or the course of proceedings which the Supreme Court was asked to review. In a few instances, pro the ceedings tangled are so impossible that it was to apply these criteria; thus, although ordinarily a case was if excluded State sought relief was after the denial of certiorari but application before the in the Federal District Court for corpus, occasionally such a ease was included if the or issue course of proceedings was the1'same in the District Court as Supreme in the Court.
516 Supreme Disposition Court.6 in Papers and
I. Certiorari.7 Petitions A. The petition the of original only the cases 126 97 In the of copy one least cases, at 29 other the in filed; was the there were cases two only in but filed, was petition petitions ordinary the of required copies nine minimum nine contained petitions the of One-half for certiorari. less. or pages In lawyers. signed were 13 petitions, 126 theOf to the according petitions other of classification petitioners, by the shown law with familiarity of degree generous to meet even not found were petitions intelligibly petitioner only requiring standard attempt minimum some make facts some allege not whether principle, legal ato facts those connect arguable. or even valid principle Certiorari. Support in Petition-for Filed Papers of B. file are still papers whose petitioners of Four support papers pages over submitted here8 petitioners other certiorari. petition papers supporting pages under average filed per case. were form, in due in two cases though records, Full excerpts while cases, eight petitioners filed proceedings the trial both the records from valid- assailed petitioner proceedings State data studied; *61 surveyed was 126 cases 6 Every in the file occasionally It by files. the revealed those following are sections reason, For unavailable. were data particular occurred which cases number the total presented, tables wherever table. top of the at is indicated available data were 7 above. footnote See papers were Supreme Court cases, some at least two In petitioner. to the returned
ity of the trial proceedings were filed in another 51 cases, as is shown in Table 1. papers No from the record below filed in were 24 of 125 cases. Among the excerpts from filed, records 26 cases a State opinion9 filed from some proceeding which the same issues were presented. There was no citation to, or filing of, an opinion or memorandum order in 46 of the cases. The first column of Table shows detail papers what from the records below were filed in the Supreme Court. 9As bright there is no line between orders opinions, any order containing more than a perfunctory general statement in terms that sought relief was denied is opinion. classified as an 10The table purport does not papers show all the filed in the Supreme Court, only but by those filed the petitioner, because figures give such a better index of the lack of competence technical petitioners and their inability, often, prison because of con finement, prepare all papers. p. 521, At post, the insub change stantial figures effected in these responses filed State is discussed.
The terms proceedings” “trial or “trial” are used to denote both the trial in petitioner was convicted appeal and direct from the conviction. The “attacking terms proceedings” or “attack” in- clude all actions such as corpus, nobis, coram post- and other conviction remedies in the State courts to obtain relief from an invalid Delayed conviction. motions for new trial have been treated for purposes of these tables attacking proceedings. Opinions” “Orders or in Part 2 of includes, the table toas
trial proceedings, judgment of conviction, the sentence or other conviction papers, as as, well for example, an opinion order or appeal. direct As to trial attacking proceedings, even the perfunctory order discussed in footnote 9 was included.
“Transcript of proceedings” or “Transcript” is used to denote a stenographic report of the testimony or hearings. Adequate excerpts from such transcripts are included. “Motions or Petitions” is used any denote pleadings by either
party. In 11 cases, there were no attacking proceedings. Hence the total Supreme number of Court cases in Part 2 of Table 1 is 114 rather than 125.
Ox i—i oo
tOrH *63 Presented. Issues C. sub- from varied petitioners raised
The issues law. of State purely questions claims federal stantial the claim according to petitions sorting of the In a or one, two most substantial or principal seemed as- most often been to have found were claims three counsel inadequacy claim: principal as the serted choosing petitioner’s not of counsel representation or another cases; in issue principal as the was claimed exces- illegal, attacked were imposed 14, the sentences was made a claim cases, in 10 discriminatory; sive evi- perjured knowingly used attorney prosecuting *64 in the errors general, In evidence. suppressed dence claim the main as were asserted proceedings preliminary 7, in or information in the indictment cases, errors in 8 concerning representation 14, in pleas affecting the errors including inadmissibil- trial affecting the in by counsel errors sur- and delay evidence, prejudice, ity such claims Miscellaneous in 17. sentence rounding the hearing to a post-trial appeal or right to of a as denials totaled proceedings in extradition and defects problem the central significance most Perhaps of made in the claims between discrepancy the here was Courts. in the District made and those Supreme Court dealing with II, in Part made be will comparison This Courts.11 in the District presented the issues States, Disposition Final by the Filed Responses D. Court. Supreme in the by the filed what were papers shows 1, supra,
Table before papers all necessarily and not petitioners Court, cases, Supreme 126 In 15 of the the Court. or the allegations of the seriousness because either petitioner, by presented of the record inadequacy responses Fourteen the State. by a response called addition, In requests. with these in accordance were filed 11 post. 525-526, pp. See Supreme docket of the Court shows that responses
were filed by the State in another 7 cases. In 10 of responses cases, these parts additional of the record not already filed petitioners thus came before the Court, but the additions do not substantially change the picture presented in Table 1. For example, Table 1, Part 1, shows that in 30 cases, petitioner filed the Su- preme Court the opinion below or excerpts or cited the opinion; the States filed the opinion below with their responses in an additional 4 cases. Like modifications, in no instance exceeding cases, would be made in other of the items in Table if it papers included filed State.
The disposition of these cases in the Supreme Court is in marked contrast with the disposition of ordinary peti- tions for certiorari. Petitions for certiorari by pris- State oners from State denials of relief and miscellaneous appli- cations to this Court are almost always filed forma pauperis and constitute about of all petitions in 60% pauperis. Since, as this study indicates, they forma only rarely filed by lawyers and seldom accompanied by adequate records, the decision whether to entertain these cases necessarily upon made less information and with *65 greater dispatch than with ordinary petitions for certio- rari. A rough index to disposition the of these cases as compared with ordinary petitions for certiorari afforded by published figures showing the proportion petitions of granted. While of the ordinary petitions for cer- 15.2% tiorari are granted, only of the in petitions 4.2% forma and no miscellaneous applications granted were the during 1950 Term.12
On an assumption that the jurisdiction certiorari of the Supreme Court ordinarily is not to be exercised merely
12 Report See the of Judicial Conference of the United States 1951— Report Annual of the Director of the Administrative Office of the United States Courts
522 attempt wrong, may be a below decision because affecting of considerations terms indicate made to presented.13 question the sort jurisdiction certiorari chief be the to law seemed purely State Questions suf- not of probably Questions petitions. of 30 claim warrant exercise importance general ficient in another claims chief jurisdiction seemed certiorari of fact primarily was one issue 44 because cases, al- issue not raised no substantial the issue and 17 because de- cases Eighteen Supreme Court. by the decided ready 17 cases remaining The basis. on this classification fied majority although principle, questions presented of the questions present did not probably even of these in other usually requisite general importance or gravity certiorari. granting for areas Disposition Papers District Court.
II. Office Administrative by the were sent Requests in which in all districts to the clerks Courts States United subsequent corpus for habeas applications were there In addi- October Term. in the of certiorari denial or opin- entries orders all docket request tion all copies per- send requested were ions, the clerks or to applicant by the filed in the action papers tinent In the papers. those concerning a questionnaire answer of them copies cases, original papers bulk pa- Office; these Administrative forwarded to were in the questionnaires with the answered pers, together analysis. following cases, were basis other Corpus. Habeas Applications A. had been with for habeas applications
Three remaining 123, unavailable; of the and were drawn to meet the Thirty-four by lawyers. failed were drawn degree some of familiar showing minimum standards for *66 (5), Sup. Ct. Rules 38 See 381/2.
523 ity with law referred to in connection petitions with the for certiorari.14 Of 122 applications for which data were available, 101 were typed or printed. The number of certio-rari; ran pages slightly less than in the petitions for 5 67 applications for habeas corpus contained 9 pages 1 less, or while 56 contained 10 or more.
B. Supporting Papers Filed: to Certiorari. Reference 2
Table below shows to what degree the applicant in- formed the District Court of the previous pro- certiorari ceedings, and demonstrates in about 10% cases there even a by reference applicant the fact that he petitioned had for certiorari. Further, large majority cases, there was simply allega- tion that a petition for certiorari had been filed and de- In nied. less than of the cases did the applicant 10% any file papers which would serve to indicate to the Dis- trict Court what questions were before Supreme Court. piling petition por 16
Table 2. certiorari in district available_ Total Cases for which data 123 100.0% Petition for Certicfrarifiled: Petition_ Certified 1 Petition_ Uncertified 10 Petition_ Excerpts from 1 filed_ Total, petition excerpts or 12 9. 8 No Mere reference to reference to certiorari denial proceedings_ certiorari_ CO Total, no information to contents of petition__ Ill 90. 2 p. 516, See supra. p. 516, See supra. figures These only reflect papers information filed applicant any and not papers information or filed the State or given Judge the District argument. However, fairly oral it can be *67 Proceed- State to Filed: Papers Reference Supporting
C. ings. were basis, percentage aon papers, fewer Somewhat the Su- in than Courts District the in applicants filed courts. State in the record the concerning Court
preme chief Of difference.17 explanation no seems There filed papers which to extent the however, was significance, presented been to have alleged were Courts District in the It is certiorari. the petition in Court Supreme to the oral in learned have may Courts District the that clear been had papers the whether means by other or argument in- such since but Court, Supreme the previously filed neces- it was obtain, to impossible thought was formation had papers the that allegations to inquiry the to limit sary negli- almost The Court. Supreme the before been also al- filed were papers the cases number gible is strik- Court Supreme the before been have also leged apparently throughout conducted cases ing. Even made. not often were allegations counsel, such competent either reflect may allegations these to make failure that counsel without applicants or counsel a fear of Supreme the made presentation demonstration Dis- the files entire where cases in those least at that asserted pleadings questionnaires, response to sent were Court trict of certiorari denial occasionally referred only of the State or the petition concerning the any information gave never almost Supreme Court. in the papers filed re given may have not district clerks cases, few In a where However, cases in all detail. in sufficient quested information were information requests for second deficiency apparent, was any such where cases only those received, that so answers out sent excellence From the in error. be would apparent deficiency not was unlikely it seems questionnaires, response in most cases deficiency of the in which from cases error arises whatever in the discrepancies for the account could apparent answers figures. prejudice would their cases perhaps feeling it is unimportant to the District Judge that
papers had also been Supreme before the In Court. any event, it has not been a practice, apparently, to allege what papers were before the Supreme Court. Columns 2 and 3 of Table supra, set out information exactly *68 parallel to that contained Column which shows what papers from the State proceedings were filed in Su- the preme Court. 2 Column shows the same information the District Court, and Column 3 shows how many the papers before Supreme the Court and then filed in the District Court were alleged to have been filed in the Su- preme Court. Comparison of 1 Columns and 3 shows to what papers extent actually before the Supreme Court were alleged to have been For there. example, in 30 Supreme cases the Court had some information concern- ing the opinion in the State proceedings. The District Court told, was however, that opinion the had been be- fore the Supreme Court in only 3 of those 30 cases. Col- umn shows that altogether there were 21 cases which the District Courts had information concerning the opinion.
A synoptic view of comparisons the made in Table 1 be can had comparing the line indicating the number of cases in which the record excerpts were filed. Thus, in over of the cases, the Supreme Court had some 80% part the State court record, in just while over 70% cases, the the District Court had part some of the State court record. In less than of the cases was the Dis- 6% trict Court told by allegation that the parts of the record before it had been in the Supreme Court.
D. Issues Raised.
The issues raised were of course approximately the same as those raised Supreme the Court, with in- only above18 given figures the from variation
substantial
But
Supreme Court.
in the
raised
of claims
types
in the
claims
comparison
awas
significance
of some
petitioners
the same
made
those
with
Court
Supreme
for which
cases
In
Courts.
District
in the
later
Supreme
in the
made
claim
the chief
available,
were
data
Court
District
in the
made
claim
the chief
also
was
Court
some
subject
course, is
number, of
That
in 105 cases.
interpreta-
differing
possibly
because
error
subjective
unlawyer-
unclear
anof
claim
chief
of what
tions
summaries
significant
more
Perhaps
is.
petition
like
considered
that
the claim
show
made
but
reappeared,
Court
Supreme
claim
chief
Court
District
in 107
claim,
chief
necessarily
before
claim
chief
cases,
conversely, in
cases;
pe-
Court
Supreme
in the
raised
had been
District
be
always
it cannot
only
indicate
data
These
tition.
*69
same
in the
record
the same
on
even
assumed
claims
various
on
emphasis
the
proceedings,
course
cases, the
in some
Further,
the same.
will be
raised
been
have
may not
Courts
District
in the
raised
claims
Court.
Supreme
in the
at all
made
Courts.
in the District
Cases
Disposition
E.
of habeas
the writ
126 was
1
only
case
In
de-
originally
had
District
granted.
reluctance
aof
because
writ
application
nied
highest
on
already passed
application
to review
writ was
appeal,19
on
but after reversal
court,
State
18
520, supra.
p.
See
19
office of
from
A letter
Eidson,
527 granted. In 120, the application for the writ has been denied, and 5 are still pending, on remand from ap- peal. Table sets out the extent to which appeal to the Court of Appeals has been sought or taken. It shows that there have been decisions on appeal in 14 cases with reversals in 3. Of those 3 cases reversed and remanded, one is pending, in one the writ has been granted and in the third the application was withdrawn. appeal
Table 3. from district court decisions Total Cases for which data available_
pawperis denied_ entries as to appeal cause on District Court denied, dismissed_ or leave to docket_ appeal in forma to co Cn Appeal pending_ CO h appeal_ W
A variety procedures were adopted in these cases by the District Courts in dealing with the applications. Chief among the orders entered other than to dismiss the applications without more were orders to show cause or to answer, as Table 4 shows. In 23 cases, a lawyer was appointed either as an amicus or as counsel for the appli- cant. In some cases, the writ of habeas corpus was issued to bring the applicant before the Court. Table 4 shows which of the devices were used and in what combinations. *70 for lack of available witnesses on 6, 1951, December one about and years one-half applicant after had first raised the claim the State courts. presented He had his claim to two courts, State the United Supreme States Court, the Federal District Court, and the Court of Appeals Eighth for the Circuit, which reversed a refusal below grant to a hearing and remanded. The discharge prisoner occurred years almost 20 after his arrest and conviction plea on a of
guilty on several unrelated counts, one of capital. them
528 applications disposing procedures 4. used in
Table available_ 100. 123 0% data for Total Cases 45. 56 more- 6% without disposed of Applications Answer: or Cause Show to Orders Show Cause- to Order CO t- appointed Cause; Counsel Show to Order applicant_ for ^ Answer_ Order CO appointed_ Answer; Amicus Order CO Corpus issued: Habeas ofWrits 2 issued_ Writ ap- for appointed issued; Counsel Writ _ 3 plicant Orders: Writs Cause_ 1 Show Issued; Order Writ Cause; Counsel Issued; to Show Order Writ 5 applicant_ appointed for Appointed: Lawyers orders other amicus, with in combination As (3) above_ already listed with in connection applicant, counsel As above_ (12) already listed orders other order_ 2 other without amicus As other applicant without counsel As order_ 44 cases given was kind hearing some A 22 cases other available.20 are data for which with- of by disposed were more without disposed answer, after case) or (one application drawal concern- data Certain amicus, both. or report shows Table 5 in Table out hearings set ing hearing long how used were procedures what at present was applicant It shows lasted. en the docket from to determine difficult cases, was it some In considered procedure A held. been hearing had tries whether appeared had applicant, State or party, the hearing if least one at Court, addition to the law fact argued points court and hearing stating that a entries resulting in docket procedures all had been held.
529 hearings, with counsel also in 17 of those cases. The applicant represented was by counsel 31 cases, but the applicant himself was not present in 14 of 31 those cases. The length of the hearings for which data were available was an hour or less in two-thirds of the cases. presence hearing length hearing
Table 5. at of I. held_ Total Cases hearings 44
Applicant absent and Data Applicant Applicant Applicant present without unavailable_ and counsel absent but represented present_ represented by _ counsel_ n counsel21 counsel T—< N 1—l ^ [03] M H II. Total Cases for length which data as to hearing available22. 24
Length Fifteen to Thirty minutes to one hour Fifteen minutes or hearing: thirty minutes. less_ _ [00] [05]
Total, less_ one hour or 16 hours_ Two Two and a half hours hours_ Three hours_ Four days_
Three hour_
Total, over one 21Including one case in which present counsel was but in which it appear does not applicant whether present. 22In two of the cases in which there was no information as to the length hearing, there is concerning information length transcript made stenographer. one, In it 20was pages; in the other 46. In cases five for which information was length available as to the hearing, given data were also show ing length the transcript. One of hearings lasting one hour transcript had a of 36 pages. hearing The lasting three hours had a transcript pages. of 15 One of hearings lasting four hours had transcript of 28 pages, pages. another one of 79 hearing last ing days three had transcript pages. *72 for applications of disposition of time average as days,23 59.4 was Courts District the in corpus habeas Court Supreme in the time disposition the with
compared 56 only however, Court, District In the days. 52.5 of the in while more, without dismissed were applications certiorari, for petitions 91 35, or all but Court Supreme filing the as such action further of without disposed were significance whatever For State. the response aof be figure seemed important the have, might it District the in which of cases number the showing Court; Supreme the in than greater was time disposition took 45 available, are figures which for 122 cases the of applica- the of denial until filing time the from longer Supreme in the had they than corpus habeas for tion without dismissed been 4 had only those Of Court. sort. some or action pleadings further reasons their indicated Courts District cases, the In 98 will As corpus. for habeas applications the denying for only decided Courts District 6, the Table from seen be either merits, on the directly cases the half about his con- or on the facts on applicant the holding against cases, 98 the half, of almost In claim. stitutional bearing grounds various on denied was application in courts and State the Federal between relation on the were based 45 denials of these Twenty-nine these cases. remedy. State to exhaust failure applicant’s on the possible is not it amplified, often was reason Since this application 23 filing day computed from was The time into account not take does It its dismissal. until cases most because slightly inaccurate It appeal any time. elapse may between days a few so that pauperis, filed forma grants leave it time application receives the the Court time papers or other the docket where cases pauperis. In all file forma used received, was that date application was date such indicated the date docket shown date than rather filed. application
531 grouNds Table applications for denial in district courts Total Cases Survey_ Pending_
Writ granted_
Total cases for available_ which data
I. Reasons Stated Dismissal. going
Reasons not directly to the merits: fairly Issue Court_ considered in State Applicant day had his Court, State and Federal Courts ordinarily reexamine_ will not CO *73 Failure to remedy_ exhaust State COfcO Total_ 45 going Reasons directly to the merits: Want of a question_ federal 21 Applicant doctrine24_ not within invoked Federal 8 Claim supported by not facts_ 17 Insufficient alleged claim_ facts support of 2 Total_ 48 Miscellaneous: Application by applicant_ withdrawn 3 Lack of District_ jurisdiction wrong 1 — formerly Same issue considered in a Federal 1 Court-
Total_ 5 No Reason except Stated applicant that not entitled to writ, or jurisdiction lack of grant_ to 22 II. Proháble Reasons whereno reason stated. fairly
Issue Court_ considered in State Want question_ of Federal H co Applicant not within invoked Federal doctrine h Claim supported not facts_ the cm is, That the claim is in an area in which protection Federal afforded, g., e. representation by counsel, applicant but the does not show that his ease comes requirements within the for protection, g., e. ignorance inability and adequately to defend himself. cases those from But further. cases these classify
to made reason the of statement detailed a more it is cases, in some available information other from toas below views several were there say possible In some implied. “exhaustion” requirement what re- formal with complied not had applicant cases, or filing the time prescribing those such quirements, higher to a appeal for an filed to be papers kind invoked fully had applicant others, In court. State available, still were remedies State but other remedy, one pro- the State was, under invoked already remedy course, cases, of In some again. available rules, cedural attempt real any or show allege failed applicant 45 cases other remedy. a State invoke as the disposed merits were directly on not decided adjudi- the State reliance degrees varying result be- judges cases in some shows, Table 6 As cation. State in the day had his had applicant that the low stated ordinarily reex- will courts Federal courts in others while prisoners, of relief denials State amine in the considered fairly had been claim they felt courts. State *74 in result. Jackson, concurring
Mr. Justice the writ use of undiscriminating as Controversy to set aside state to judges federal corpus by habeas of (1) causes: principal to three is traceable convictions of the Fourteenth generality use of the Court’s this increasing fed- courts subject state Amendment (2) ad field; law the criminal in control, especially eral per- law issues of process of due hoc determination law; rules by known instead justice notions sonal against safeguards procedural breakdown (3) and writ. abuse to issue courts federal authorized 1867, Congress
1. In custody “in vio- prisoners corpus writs
533 lation of the Constitution laws or treaties of the United 1 States.” At time, that the writ was available here nor in England to challenge any imposed sentence by court of competent jurisdiction.2 The historic purpose of the writ has been to relieve detention by executive judicial authorities without trial.3 might It have been expected if Congress intended reversal of this concept traditional of habeas it corpus would have said so. However, this one sentence in the Act eventually construed authority for judges federal to entertain collateral attacks on state court criminal judgments.4 Whatever its justification, it potentialities created conflict certain to lead to antagonisms we have now, power unless the given federal judges were responsibly used according to lawyerly procedures and genuine with respect state court fact finding.
But, once established,
jurisdiction
this
obviously would
grow with
expansion
each
grounds
substantive
id., dissent, at 348.
writ has
Security
Eng. Rep. El.
parte Watkins,
have reviewed
ex rel.
859;
1 28 U. S. C. §2241
2
See
Darnel’s
Ex
Bl. & El.
U. S.
Knauff
parte Ferguson,
not been
equivocal
Case,
828,
Liberty
Shaughnessy,
This process due Court’s with, this comply so and anticipate, standards any or ascertain requirements they can- But them. prescribing will adhere is inherent uncertainty course, considerable Of not. in- times, purports changing which, in law decisional cryp- so provisions of constitutional implications terpret will inevitable is obscurity much How vagrant. and tic considering rem- However, opinion. a matter be to assume prudent it is problems, edy for Amendment Fourteenth reach scope and that that what unknowable, and unknown to be will continue be unsettled apt to decision by one established seems be more will interpretation its and another, and fashions intellectual contemporary swayed less currents. political compla- prospect this unstable upon look
mayWe being only They are cannot. judges but state cently, fed- but judiciary federal to the subordinated gradually other and judicial state declared have courts eral and prosecution federal liable personally officers may field diversity in this of views uncertainty An idea S. California, 342 U. v. Rochin comparison of gleaned from be California, 332 v. Adamson Colorado, S. 338 U. with Wolf U.S. 46.
civil by suit convicts if they fail to carry out this Court’s constitutional doctrines.6
2. Rightly or wrongly, the belief is widely by held practicing profession that this Court no longer respects impersonal rules of law but guided is in these matters by personal impressions which from time to time may be shared by a majority Justices. Whatever has been intended, this Court also generated has an impression in much of the judiciary that regard precedents authorities is obsolete, that words no longer mean what they have always meant to the profession, that the law knows no fixed principles.
A manifestation of
this
seen in the diminishing re-
spect shown for state court adjudications of fact. Of
course, this Court never has considered itself foreclosed
by a state court’s decision as to the facts when that de-
termination results in alleged denial of a federal right.
But captious use of
power
was restrained by observ-
ance of a rule, elementary in all appellate procedure, that
the findings of fact on a trial are to be accepted by an
appellate court in absence of clear showing of error. The
6 This Court’s decision in Screws v. United States,
325 U. S.
as the dissenters anticipated, has led a Federal Court Appeals
hold that federal law enforced in federal
imposes
courts
personal
liability upon
judicial
state
officers, though that court admits that
“The
is of
portent
result
fateful
judiciary
of the several states.”
Picking
Pennsylvania
Co.,
R.
trial appel- than time more far case each giving parties, dis- to unravel position a better is in give, can court late tran- printed aon appellate anis than of fact putes alteration no candid avow decisions Recent script. *77 grown finding has fact state of revision but rules, these disregard.7 by withered has it for respect and emphasis, is process due of law substantive fact The as to unsettled and vague so remain must probably and im it makes petitions borderline farfetched invite courts enable procedures adhere portant grievance constitutional probable distinguish readily to indul some persuading on gamble mere a convict’s from this Instead, jail. of out him let judge gent until writ of trivialization progressive sanctioned has inun petitions repetitious and frivolous stale, of floods own.8 our swell courts lower of docket date matters, corpus habeas of disposition own our Judged S. Society, 343 U. 7 Medical Oregon State v. States g., See, United e. in presumption of application example recent 326, for v. Compare Watts finding fact. court’s federal a lower favor 62; Harris S.U. Pennsylvania, 338 49; Turner Indiana, U. S. 338 S. York, 324 U. v. New Malinski 68; and Carolina, S. 338 U. v. South salutary in which of cases illustrations above for with fact in disregarded findings was court state in favor presumption theory. in if not hundred 1941one during courts district federal in filed were There convic challenging state petitions twenty-seven hundred five sixty-nine; in hundred two were there tions; in 1943 Statistics Speck, forty-one. hundred 1952 five forty-three; during the 337, shows L. J. St. Corpus, 10 Ohio Habeas Federal petitions high number awere there through 1945 period from petition such one least filed at had who convicts by those filed South Hampshire New courts federal In before. federal by repeaters up made petitions total percentage Dakota, the statistics on which larger states percentages was 50%. 19%; Illinois, 12%; California, as follows: available then were York, 17%; New Jersey, 21%; New Missouri, 20%; Massachusetts, they have, as a class, become peculiarly undeserving.9 It must prejudice the occasional meritorious application to be buried in a flood of worthless ones. He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search. Nor any it answer to say that few of petitions these any court really result in the discharge of the petitioner.10 That is the condemnation of the procedure which has encouraged frivolous cases. In this multiplicity worthless cases, states are compelled to default or to de fend the integrity of their judges and their official rec ords, sometimes concerning trials or pleas that were closed many years ago.11 State Attorneys General re cently have come habitually to ignore these proceedings, responding only when specially requested and sometimes 18%; Pennsylvania, 22%; Texas, *78 figures These 25%. show an unnecessary burden on the federal courts by quantitative as well as dramatic tests. 9See Speck, supra, 3, p. Table 349. 10Statistics of the Administrative Officeof the United States Courts for period the 1946-1952 that, show in 1946, of petitioners the 2.8% were successful; in 1952, were successful. 1.8% Pages full of numbers 11 fail to indicate what the states must con tend with as vividly as the history particular of litigation. The litigation
Wells
in California is
object
an
lesson in conflict. Wells
was sentenced to death by the California trial court, and this judg
ment was
affirmed
Supreme
the
Court of California in an opinion
gave
extended consideration to the appellant’s contentions.
People v. Wells, 33 Cal.
2d
not further declined have and them upon demands peated assembled The decisions.12 their for grounds elucidate 2d 947. P. 889, 221 2d Cal. Wells, 35 re In was. California of law 937. S.U. California, 340 v.Wells certiorari. again denied Court This he conceding that although now judge, federal same the Thereafter convic the courts, voided California from law California take must opinion. earlier his in mentioned even ground a federal on tion judge district of the opinions The Supp. 320. F. Wells, 99 parte Ex by the presented difficulties of the aware well was he show Court’s this of light the in alternative no had he felt but procedure, expe own his of lessons the contributed Indeed, has he decisions. Habeas ofWrit the of Abuse Goodman, Use in field this in rience action inwrit great R,. caricature Another D. 313. 7 F. Corpus, sentenced was Adamson California. litigation Adamson is the of Court Supreme 1944. trial the California death People v. 1946. conviction judgment affirmed California certiorari, granted Court This 2d 3. P. 478, 165 2d Adamson, Cal. California, v. Adamson merits, and affirmed. on case heard date before week one 1948, just January On 46. S.U. Supreme Court petitioned execution, Adamson his for set This denied. petition corpus, and for California certiorari denied stay and a for application denied Court S.U. California, 333 Adamson California. Supreme Court certiorari, a denied this Court day that the same Later District Northern Court District States the United judge of Then sentence. stay of execution a issued of California probable certificate denied writ denied Court District judge of 996, a 2d Adamson, F. parte Ex In appeal. cause application denied Appeals States United certiorari. again denied This Court probable cause. certificate *79 end, the not Even 834. S. Adamson, U. 334 parte Ex Supreme the appealing to Adamson find we 1949 however, for writ of a application of denial a from of California good question the occasion took then court That nobis. coram 13, Cer 2d P. 210 2d 34 Cal. proceedings. the of faith delaying as tactics in such as aids courts federal of tainly use of writ habeas of the stature elevate here does are evidenced problem of very real abut here mythical abuse no have corpus. We state. of the harassment S. 143. Duffy, U. Dixon Chief of Justices the highest courts of the states have taken the unusual step condemning the present prac tice by resolution.13
It cannot be denied that the trend of our decisions is to abandon rules of pleading or procedure which would 13Conference of Chief Government, 1952, 25 State No. Justices — 11, p. (Nov. 1952): “Whereas it appears by reason of principles certain enunciated in certain recent federal decisions, person whose conviction in a criminal proceeding in a State Court has thereafter been affirmed highest court of State, petition whose for a review of the State Court’s proceedings has been denied Supreme Court of the States, United may nevertheless obtain from a Federal judge district or Court, under a writ of corpus, new, inde- pendent, and hearings successive upon based petition supported only by the oath petitioner and containing only such statement of facts were, or could been, have presented original in the pro- ceedings in the Courts; State “And whereas the multiplicity of procedures these available in the inferior Federal Courts such persons, convicted consequent and the delays inordinate in the enforcement of justice criminal as the result of said Federal decisions will tend toward the judicial dilution of the sense of responsibility, may grave create and undesirable conflicts between Federal and State laws respecting fair trial process, and due and must inevitably lead to impairment public confidence judicial in our institutions; “Now therefore be it resolved that it is the considered view the Chief Justices the States of the Union, in duly conference assem- bled, that orderly Federal procedure under our dual system gov- ernment require should that a judgment final of a highest State’s court be subject to review or only reversal by the Supreme Court of the United States. “Be it further resolved that Chairman the Conference of Chief Justices be authorized, and he hereby directed, to appoint a special give committee to study grave to the questions potential complications likely to ensue if power to review or void state judgments continues to be recognized as lying any courts judicial Federal system, save and except the Supreme Court of the United States: and that special said report committee its find- ings and recommendations at regular next meeting of the Conference.”
540 time a upon Once abuse. against the writ
protect other review- appeal or be substituted not writ could competence legal only challenged but process ing de- have so committing court.14 We of the jurisdiction be- now profession that principle from parted a federal on actually consider we the issues that lieves the same substantially are prisoner's appeal.15 be considered would result inevitable is courts state Conflict with a federal trial before new a virtual giving convict one decisions jury. a Whenever without sitting court are of them percentage a another, by reviewed are court normally in outlook a difference reflects That reversed. courts. different comprising personnel between found proof not is by higher However, reversal no doubt There is done. better thereby is justice pro- Court, a substantial super-Supreme if there were re- also be would courts of state our reversals portion of but infallible, are final we because versed. We are final. only because we infallible arewe corpus, what in habeas requirements pleading As to the comparison be learned may happened best has upon relied facts and circumstances pleaded meticulously 261 U. S. Dempsey, v. opinion Moore by this Court’s Holohan, 294 103 U. S. Mooney v. (1923), and 86 v. in Price absence condonation their (1935), with really It has become Johnston, (1948). 334 266 U. S. prisoner more than that plead nothing necessary to hold illegal it out, and thinks get jail, is in wants parte Watkins, Ex 3 Pet. expressed by General the Solicitor was the view Such during argument of Martinez at the Bar this Court United States Court, His Neelly, equally S. 916. U. affirmed divided adversary agreed.
him.16 If he fails, he may make the same plea over and again.17 over
Since the Constitution and laws pursuant made to it are the supreme law and since the supremacy uni- formity of federal law are attainable only by a centralized source of authority, denial by a state aof claimed federal right give must some access to the judicial federal system. But federal interference with state administration of its criminal law should not be premature and should not occur where it is not needed. Therefore, we have ruled that a state convict must exhaust all remedies which the state affords for his alleged grievance before he can take it to any federal by habeas corpus.
The states all allow appeal some from a judgment of permits conviction which review of any question of law, state or federal, raised upon the record. No state is obliged to furnish multiple remedies for the griev- same ance. Most states, and good with reason, will suffer a collateral attack such as habeas corpus to be used as a substitute for or duplication of the appeal. A state prop- erly may deny habeas corpus to raise either state or fed- eral issues that were or could have been considered on appeal. Such restriction the state should be respected by federal courts.
Assuming that a federal question not reachable on appeal is properly presented by habeas corpus and de- cided adversely by highest competent court of the state, should the prisoner then to come Court this ask us to review the record by certiorari or should go he to the district court and institute a new federal habeas corpus proceeding? Darr Burford, v. S.U. 200, as
16Price Johnston, supra. 17In Price v. Johnston, supra, the lower federal courts were reversed for dismissing the petition. convict’s fourth See also statistics as repeaters to supra. note these circumstances held it,
I understand before for certiorari to apply must prisoner only by so because court, federal any other to go he can one Whatever remedy. state his exhaust he doing could sup- logical not seem it result, does of that may think power certiorari this Court’s asserting it port authority outside An remedy. a state’s part any the case turn the state duty upon imposes the state virtually state makes the in a it, proceeding over certify that our command say To a defendant. *82 and fiction, indulge to remedy is a state us is to case are most they those is that fictions difficulty with them. who proclaim are those to mislead apt artificiality of to neutralize proposed it But now is cer- our the fiction counterbalance and process step which holding that remedy is a state tiorari him or the state to nothing means take must prisoner it does. cases fails, as most it when subject. on the mind quite not one is say it means nothing, others means say denial Some un- is position the first Realistically, much. nothing we can How unintelligible. second and the tenable and us at to his case present must prisoner say that nothing means with it we do what say that time the same position take either conceivably might anybody. We burden only not will two both, for the rationally, not, but it but the state authorities harass own docket our justice for federal quest legitimate prisoner’s makes a contest. endurance nor Court, those outside
True, neither rea- just know what it, those inside occasions many ato consent certiorari. withhold six Justices sons led be mus- than can larger majority, a But know that all reason has found decisions, many good for a tered knows all that no one Because here. reviewing the case nothing? it means mean that it means, does a denial Perhaps profession could accept denial as meaning- less before the custom was introduced of noting dissents from them. Lawyers and lower judges will not readily believe that Justices of this Court are taking trou- ble signal a meaningless division opinion about meaningless act.18 just It is one the facts of life that today every lower court does attach importance to denials presence or absence of dissents from denials, as judicial opinions and lawyers’ arguments show. The fatal sentence that in real life writes to many finis
causes cannot in legal theory be complete blank. I can see order in the confusion as to its meaning only by dis- tinguishing significance its under the doctrine of stare decisis, from its effect under the doctrine judicata. of res I agree that, as decisis, stare denial certiorari should be given no significance whatever. It precedent creates no and approves no statement of principle entitled to weight in any other case. But, for the case in which certiorari is denied, its minimum meaning is that this Court allows the judgment below to stand with whatever consequences it may upon have the litigants involved under the doc- trine judicata res as applied either by state or federal *83 courts. A civil or criminal judgment usually becomes judicata res in the sense that it is binding and conclusive even if new facts are discovered and even if a new theory of law were thought up, except for some provision for granting a new trial, which usually is discretionary with the trial court and limited in time.
It is sometimes said that
judicata
res
has no applica-
tion
whatever
habeas corpus cases and surely it does
not apply with all of its conventional severity. Habeas
corpus differs from the ordinary judgment
al-
that,
though an adjudication has become final, the application
petitioner
When
in Brown
sought
v. Allen
certiorari here
his
after
appeal to the state court failed, two Justices dissented from the
denial of certiorari. Brown v.
Carolina,
North
is a decision, aof new result as perhaps if, or covered is quite This case. to applicable becomes law new call But jurisdiction. to relate issues as its long so proper be to not ought will, courts what one or judicata it res again and again litigate to a convict allow to obliged isNor evidence. same on question the same exactly re- contention an identical why reason any good there same reviewed be should higher aby jected one. a lower facts to finality limited this giving to objection chief The these writs upon pass that we is of certiorari denial our so unrelated grounds upon or casually so of habeas have not should decision our that merits their to consideration personal very close No finality. of weight of multiplicity a to such each Justice given can be they class, a and, as have had we petitions these unintelligible so often meaningless, frivolous, so so in- each discredits the class this worthlessness that reduced were deluge this If application. dividual pro- manageable safeguards procedural observance the cases examine possible be it would that so portions I think merit, that show those hear care with some is fact The disappear. largely would objection this inevitable is the cases these consideration superficial en- has no writ the writ. depreciation result it, abuse of who sanction those deadly as so emies intent. their whatever by laws obtaining conviction really is
If state a it Constitution, the Federal violate which procedures convict, a particular only not wrong, always serious six Justices probable It is law. to federal but intelligibly presented case up pass would will petitions these examination But situation. *84 rules of rational any by tested them, few show law any question raise actually pleading, the state court has differed from the understanding pre- vailing in this Court. The point on which we are urged to overrule state courts almost invariably is in ap- their praisal of For facts. example, the jury, trial judge, and one or appellate more courts below have held that conflicting proves evidence a confession was voluntary; prisoner wants us to say the evidence proves was it coerced. The court below found that prisoner waived counsel and voluntarily pleaded guilty; he wants us to find that he did not. The jury the trial judge below believed one set of witnesses whose testimony showed his guilt; he wants us to believe the other and to hold that has he been convicted perjury. That the type of factual upon issue which this Court and other federal courts are asked to intervene upset state court convictions. There are plenty of good reasons we why should rarely do that, and even better reasons why district court should not undertake to do it after we have declined to.
My conclusion is that whether or not this has denied certiorari from a state court’s judgment in a ha- beas corpus proceeding, no lower federal court should entertain a petition except on the following conditions: (1) that petition raises a jurisdictional question in- volving federal law on which.the state law allowed no access to its courts, either by or appeal from the conviction, and that he therefore has no state remedy; (2) that the petition shows although the law allows a remedy, he was actually improperly ob- structed from making a record upon which the question could be presented, so that his remedy way ultimate application to this Court for certiorari has been frustrated. may There be circumstances so extraordinary that I do not now think of them which would justify a departure from this rule, but the run-of-the-mill case certainly does not. *85 proposition general this with agree will one Whether federal thinks he latitude the on suppose, I depend,
will court state novo de retrying exercise should courts a state test are to courts federal If the issues. criminal pro- newain evidence new hearing decision court’s is remedies state of exhaustion of pretense ceeding, the rem- a given have not could courts state for the sham, I hear. to no chance had they which evidence edy that evidence hear should courts federal why see cannot prisoner the unless the state to presented not griev- of his a record making from prevented been has bring it to of nois record there that the result with ance, to seem would circumstances Such on certiorari: here which courts district remedy original for call make and evidence take to a position be would de- if there pass ultimately must we on which record court. state and federal between of law conflict velops a doctrine this adopt to willing were If procedures, .some settle it could self-restraint, federal out weed would which practices and pleading rules worthy ones. identify and causes frivolous and abuses rules formulating practice difficulty I know argument underestimate Ido Nor pitfalls. their without prisoners for petitioned is often writ that the artificiali- held be not they should that counsel I know But in lawyers. expect we in pleading ties ex- law under justice equal have canwe way that noof prin- general some suggest I law. some have we cept number reduce to, would if adhered which, ciples at possible them upon decision make petitions, frivolous irritation some alleviate time and an earlier writ use of federal ill-considered developing over courts. state slap down law state (in absence shall corpus habeas First, was, or could question any contrary) raise re- procedure or other by appeal decided been, have view of conviction. In the absence showing to the contrary, will be deemed to only lie defects not disclosed on the record, going the power, legal competence jurisdiction of the committing state *86 court.
Second, every petition to a federal court is required, and those to a state court may be required, by state law to contain a plain but full statement of the facts on which it is based. Unless it states facts if which, proved, would warrant relief, the applicant is not entitled as of right to a hearing. Technical forms or artificialities of pleading will not be required.
Presumably a federal court will not release a convict until proves he facts which show invalidity of his convic- If proof tion. is to be required, it is no hardship to re- quire a simple statement of it what will be. A petitioner should be given benefit liberal construction, of all usual privileges of amendment, if and, the court prob- finds a ably worthy case, appointment of counsel to aid in amending petition and presenting the case.
Third, petitions to federal courts are required, and those to state may courts be required, to set forth every previous application to any court for relief on any grounds. If the petition current is upon made the same grounds as an one, earlier it should state any evi- fully dence now support available its that was not offered before and explain failure to present it. On jurisdic- tional questions appropriate for habeas corpus, peti- tioner may not be barred proof from by newly discovered evidence, but it is not asking too much that petition his disclose that he it has and a basis for appraising its rele- vance and effect. He should not precluded be from rais- ing new grounds of in a unconstitutionality later petition, especially in view of the unsettled character of our consti- tutional doctrines of due process. But the facts that make the new grounds applicable should appear. If fed- affords law state grounds sought
eral relief and obstructed has been thereto resort his or remedy, no court, to a state his case present unable been he has forth. fully set clearly be on should relied the facts my state- in criticism may said be probably Much convinced, I am nothing, but principles these ment tradi- part authenticity as historical their against application their against law tional legisla- foreshadow they grave so abuses stop now foreclose do They writ. restriction tive treat- for the serious them earmark but worthy causes wholly eliminate not even They will they deserve. ment exposing them discourage but will petitions frivolous stage. earlier frivolity at an their unconstitu- maintaining an interest no Society has preserving interest every conviction tional *87 occur. they when them nullify corpus to of habeas writ courts the state prevent does But the Constitution does It cases. in criminal facts determining from different them have unconstitutional it not make given be weight to about the judge a federal than opinion under review the cases votes in My to evidence. Ias nearly guided bewill and reviews petitions other herein. forth set principles can Reed Mr. Justice in the result announced I concur cases. in these three Doug- Justice Black, with whom Mr. Justice
Mr. dissenting. concurs, las sentences are cases under in these petitioners four All state courts. Carolina imposed by North
of death rap- were convicted Speller Brown Negroes. arrested, 17 when aged Daniels, two women; white ing State man. The murdering a white were convicted in all certiorari and we denied affirmed Supreme Court corpus proceedings the cases. These are habeas challenge validity of the convictions.
I agree with the Court that the District Court had ha- beas in all corpus jurisdiction including power cases release either or all of the if prisoners held as a result of rights. violation of constitutional I This understand to abe reaffirmance of the principle embodied in Moore v. Dempsey, 261 I agree U. S. 86. also that in the exer- jurisdiction cise of this the District Court had power to hear and all consider relevant facts bearing on the con- stitutional contentions asserted these cases. I dis- that, with agree the Court’s petitioners conclusion failed to establish those contentions. The chief constitutional claims throughout have been and are: (a) extorted con- fessions were used to convict; (b) Negroes were delib- erately excluded from jurors service as on account of their race. For following I reasons would reverse each the judgments denying corpus. habeas In
First. denying habeas in all the cases, the District Court felt give constrained to give and did weight to our prior denials of certiorari. So did the Court of I Appeals. agree with the Court that this was error but disagree with its holding the error was harmless. It is true that after considering our denials of certiorari as a reason refusing corpus, judge district attempted to pass upon the constitutional questions just as if we had not declined to review the convictions. But *88 the record shows the difficulty attempt of his to erase this fact from his mind and I am not willing act on the assumption that he in doing succeeded so. Both the jury and questions confession raised in these death cases entirely have too much record support to refuse relief on such a questionable assumption. I would therefore re- verse and remand all the cases for the district judge to consider and appraise the issues free from his erroneous petitioners against them decided Court that this
belief certiorari. by denying death sen- Brown’s Allen, No. 32. v. Brown
Second. a For- returned indictment rests on rape for tence five North reversed recently We jury. County grand syth a had been that there ground on convictions Carolina Forsyth from Negroes of exclusion racial systematic v. Brunson 1947. prior to many years for juries County’s of a review Upon (1948). S. 851 Carolina, U. North corpus proceeding Brown’s evidence discriminatory jury County’s Forsyth holds that boxes jury the old in 1949 when abandoned practice Court relies which the testimony on The refilled. were indiscrimi- taken box were in the 1949 put the names of whom county taxpayers, the list of nately from 16% relied was evidence Other whites. Negroes, were 84% been included have Negroes four to seven that since effect The concrete to 60. of 44 jury venire in each North Carolina by the stated case was in this new box to be this: Supreme Court jury and grand on the served Negro woman
“One tendered juror was Negro prospective at least one was excused jury and petit for the the defendant Brown, 233 N. C. State his counsel.” rejected E. 2d 63 S. 202, 205, abandon- partial a does show foregoing evidence jury practices discriminatory of the old
ment
—since
been summoned
regularly
Negroes
have
number
small
discrimina-
degree
But
lesser
duty.
proof
jury
insufficient
show
1949 is
before
now than
tion
re-
which the Constitution
of jurors
impartial selection
County’s
Forsyth
one-third
are about
quires. Negroes
now
Negroes
the number
Consequently,
population.
disproportionate
glaringly
duty is still
jury
called
to at-
possible
It is not
citizenship.
percentage
their
*89
tribute either
pre-1949
post-1949
dispropor-
tions entirely to accident. And the state has not pro-
duced
evidence
show that
the partial continuation of
the long-standing failure to
Negro jurors
use
is due to
some cause other than racial discrimination. Cf. Patton
v. Mississippi,
Third. Speller Allen, No. 22. The jury that tried Speller was drawn from Vance County, North Carolina. Before this trial no Negro had served on a Vance County jury recent years. No Negro had even been sum- moned. That this was the result of unconstitutional dis- crimination is made clear by the fact that Negroes con- stitute of the county’s population and 45% of its 38% taxpayers. The Court holds, however, that this discrimi- nation was completely cured by refilling the jury box with names 145 Negroes and 1,981 whites. Such a small number of Negro jurors is difficult to explain except on the basis of racial discrimination. The Court attempts explain it relying upon another discrimination, one which can hardly be classified as most appealing in a democratic society. What the Court apparently finds is that Negroes were excluded from this new jury box not they because were Negroes but they because happened own less property than white people. In other words, the Court finds as a fact that the discrimination, if any, was based not on race but on jurors wealth —the were selected from taxpayers with “the most property.” The Court *90 of this constitutionality on the pass to declines then even petitioner’s ground the on discrimination
property
discrimi-
property,
on
racial, not
on
were based
objections
of
restriction
narrow
to such
agree
I cannot
nations.
the
brought
jury
the
to
objections
petitioner’s
to
plain
seem
here
discriminations
Jury
verdict.
death
them.
by-pass
not
I would
andme
evidence
also
Here
Allen, No.
Daniels
Fourth.
juries
from
Negroes
of
exclusion
unlawful
an
establishes
to
refused
Court
Supreme
State
The
race.
of
because
Ab-
grounds.
procedural
on state
evidence
this
review
to
now held
ground
on this
review
of state
sence
But
proceedings.
in federal
review
off
cut
Court
Supreme
the State
where
cases
preceding
two
in the
it.
reviewed
has also
Court
this
evidence,
review
did
a philoso-
of
soundness
with
agree
to
difficult
it
I find
review
a second
grant
to
this
prompts
phy
any review
deny
but
one
granted
has
state
where
none.
granted
has
the state
where
at all
of discrim-
obviousness
indicate
facts
following
County
in Pitt
service
jury
from
exclusion
Negro
inatory
tried.
this case
where
population
about
constituted
Negroes
47%
But
taxpayers.
one-third
about
and
county
Negroes.
most
at
included
names
10,000
box
jury
had
Negro
no
trial
Daniels’
including
to and
up
And
Petitioners
times.
modern
jury
grand
aon
served
ever
discriminatorily
so
juries
ample time
objection
made
chosen.
this
on
act
to consider
conclusion
The Court’s
After
facts:
on these
rests
discrimination
racial
manifest
appeal
granted
they were
sentence
death
petitioners’
6th
June
Court.
Supreme
the State
pauperis
in forma
make
lawyers
for their
days
granted
judge
the trial
Prep-
appeal.”
of case
“statement
their
serve
up
excep-
bill
to a
(comparable
statement
aration
tions) consumed valuable time because of
difficulty
getting the stenographic transcript. On completion peti-
tioners’ counsel on Friday,
5th,
August
called
prose-
cuting attorney’s office to serve him but found he was
out of town. According to the record he and his family
were away for the weekend at a beach. They returned
home Sunday, but he did not get back to his office until
Monday, August 8th. Had the statement been delivered
at
his
office
sheriff on Friday the 60th
appar-
day,
ently there would have been compliance with North Car-
*91
olina law.
Instead it was receipted for at his office on
the 61st day, two days before his return from the beach.
In the State Supreme Court the Attorney General moved
to dismiss on the ground that the notice was one day late.
Although admittedly the court had discretionary author-
ity to hear the appeal, it dismissed the case. Petitioners
were thereby prevented from arguing the point of racial
discrimination and consequently it has never
passed
been
on
appellate court. This denial of state appellate
review plus the obvious racial discrimination thus left
uncorrected should be enough to make one of those “ex-
traordinary situations” which the
says
Court
authorizes
federal courts to protect the constitutional
rights of state
prisoners. Cf. Frisbie
Collins,
v.
Supreme too come had to it objection that ground tion a federal Later certiorari. denied had Court This late. habeas petition dismissed summarily district acts serious very other foregoing alleging corpus upon urged been had of which all unfairness, trial never- Court This petition. certiorari prior in Court error had committed District that held theless v. Moore I read alleged. facts examine refusing in it that principle standing supra, Dempsey, proceedings for courts late too never pre- in order screens through procedural straight look defiance flagrant liberty or of life forfeiture vent 2dF. Kennedy, States United Cf. Constitution. func- judicial exalted more is no there Perhaps 811, 813. exer- be it should agree willing to I am tion. circum- special except under like these in cases cised I cannot But situations. extraordinary stances Great confine attempts opinion any join boundaries. formalistic rigid within Writ Black Justice whom Frankfurter, Mr. Mr. Justice *92 Douglas dissenting. join, Justice and Mr. 82.
Nos. certiorari denial of a that holding today is Court The substantive, signifi- is without cases corpus habeas in ap- of denials sustained Appeals of Court cance. it chiefly because writs of for plications orig- from for certiorari petition of a our denial treated as a review these cases of in each inal conviction asserted claims the constitutional rejection merits significance only while the short, In petitioners. these review, refusal was a certiorari the denials though dis- purposes, practical all for Appeals treated judicata, of res import technical full avowing had this Court though denials empty substantively examined and approved holdings the Supreme Court of North Carolina that was no purposeful there against discrimination Negroes in the juries selection of in these cases.
This Court could have reached the constitutional
in
claims
controversy had it seen fit to review the cases.
It declined to
so,
do
and that
all
is
that the orders in 340
U. S. 835 and
Suppose that the District Court in these circumstances had against found Brown and Speller. What basis there for assuming appeal that on the Court of Appeals for the Fourth Circuit, with its specialized local knowl- edge about such matters, would not have decided favor of the petitioners? And what in reason basis have we if assuming, had cases come with powerful here opinion from Judge Parker, let us that say, finding there systematic discrimination, that this Court would have deemed it appropriate to review weighty so a conclusion, or, if we had taken the case, we would have found the facts and their meaning to be different from those which the Court of Appeals the Fourth Circuit found? Such assumptions unwarranted, especially light the impressive showing by Mr. Justice Black *93 fact there was unconstitutional discrimination in the of the make-up juries in these cases where is at two life stake. a de- affirming against strongly too protest cannot I on the based patently Appeals of Court of the
cision on procedural foreclosed was court that that ground of constitutional merits considering the from grounds in wrong was court the that now decide we claims, when by affirmance foreclosed. so it was that believing of habeas of writs denial Court’s District the of Court this that vulnerable the more all is cases in these corpus Appeals, of Court the from guidance Court, without this the constitutional of merits the to consider proceeds sys- not a was there that concludes Court This claim. If juries. off Negroes keeping discrimination tematic merits, the necessary consider it deemed Court the Court open been have equally should merits the is court indicated, already As I have Appeals. of circum- to assess arewe than situated far better to draw Carolina North selection jury stances inferences. appropriate No. Cir- Fourth for Appeals Court this case
In ap- dismissing Court District sustained also cuit the claim based of habeas writs for plications convictions their here petitioners two by dis- by vitiated were North Carolina in the murder Con- States by the United guaranteed rights regard of Speller Brown and unlike this case But stitution. fore- itself find did Appeals the Court here cases; bound itself deeming merits to consider closed Supreme in the merits adjudication for cer- a petition aby denial followed North Carolina not sus- does here the Court And Court.1 in this tiorari petition Court, no in this a denial Although was such there by the decisions three latest sought from certiorari initiation prior to the Supreme Court North Carolina *94 tain the District Court’s dismissal contending that North Carolina Supreme Court had already adjudicated the merits, nor does this Court pass on the merits.
This Court sustains the lower courts on ground that the right of review on the merits was foreclosed be- cause petitioners lost their right of review through failure to comply with the requirements of North Caro- lina law for perfecting appeal in the Supreme Court of North Carolina. State v. Daniels, 231 N. C.
We given were to understand on the argument if petitioners’ lawyer had mailed his “statement of case on appeal” on the 60th day prosecutor’s office had received it on the 61st day the law of North Carolina would clearly have been complied with, but be- he cause it by delivered hand on the 61st day all oppor- tunities for appeal, both in the North Carolina courts and in the federal courts, are cut off although the North Caro- lina courts had discretion to hear appeal. For me it is important to emphasize the fact that North Carolina does not have a fixed period for taking an appeal. The decisive question is whether a refusal to exercise a dis- cretion which Legislature of North Carolina has vested judges its is an act so arbitrary and so cruel opera- its tion, considering that life is at stake, that in the circum- eorpus proceedings now under review. inappropriate It is not say that the certiorari that denied was here affords good a illustration holding legal reason for significance that no attaches to such beyond a denial. It be would the wit of the panel judges wisest ground, determine on what reason, for petition what papers The denied. in the do case not afford a rational foundation saying ground that it was this rather than that. conflicting rejection only bases may not well have influenced different mem- bers Court; unlikely it is not at all that individual members did necessary not feel it to determine grounds which of two was decisive. process of due denial it constitutes case of this
stances aspect. rudimentary procedural in its even a frivolous with dealing arewe here For under guaranteed rights aof denial claim tenuous led proceedings in the Constitution States *95 United said was what quote to It suffices sentence. a death to ex- most the of one Soper, Judge by Circuit in dissent judges: federal of hardheaded and perienced of State of the part the on attempt is no “There that to show appeal pending the Carolina North constitutional of the violation gross not a was there Daniels trial court.” the prisoners rights 770, 771. F. 2d Allen, 192 v. of the Court by questioned not this statement
And Appeals. and State federal the both closing reason
The basic under claims serious such on petitioners to the courts that jejune abstraction circumstances these dealt Soper Judge appeal. used be cannot what by quoting formula of this deceptiveness with regard truth be the to found Hand had Judge Learned ago: thirty years generality to this occasions length at not discuss “We shall objection writ, where resort to justify will exten- a somewhat After appeal. open been has ago, years twenty-four the authorities review sive confusion; and great law was that I concluded to tended scarcely have then since the decisions more definite no find canWe lines. sharpen deter- only to available, iswrit that than rule and consti- juris, stricti jurisdiction, points mine it is else resort but whenever questions; tutional jus- miscarriage complete prevent necessary 2d F. Kennedy, Kulick tice.” The reasons for finding we have here so complete miscarriage justice are so powerfully Judge stated Soper I cannot do better than adopt them as my own:
“The
court’s strict application
pro
[trial]
cedural
in a capital
rules
case in these two instances
rulings
that court preventing
[of
defendants’ at
from
torneys
raising
jury
can
question]
hardly
be approved as a proper
judicial
exercise
discre
tion. The defendants merely asked for rulings
which would have enabled
them obtain a review
by the highest
the state of the trial court’s
grave
action on a
constitutional
question;
relief could
granted
have been
without
interfering
with the enforcement of the criminal
laws of the
state.
It
hardly
can
be doubted that
the decision
*96
lay
each case
within the
of the judge,
discretion
but once it was taken,
the Supreme Court of the
state deemed
powerless
itself
to interfere. Thus
is presented
there
an impasse which can
sur
be
only by
mounted
a proceeding like that before this
court. We have been told time
again
and
legalistic requirements
disregarded
should
be
ex
amining applications for the writ of
and the rules have been
relaxed
cases when the
trial court has acted under
or perjured
duress
testi
mony has been knowingly
used
the prosecution,
plea
has been
guilty
obtained by trick, or
the defendant has been inadequately represented by
Hawk v. Olson,
counsel.[2]
Darr in practical distinction material any to see difficult the plight these circumstances between effect have been who case pending in the prisoners of' procedure local technicalities in the caught their constitutional have been denied in consequence at 773. 2d, F. right.” Notes Reviser’s corpus.” material no say Sess., 1st Cong., 308, 80th No. Report else Nothing intended. is existing practice change by to restrict Congress was purpose indicates of the of 1948 the discretion Code adoption to enter- before, discretion if it had such Court, District raised the same prisoners from state petitions tain in the state courts.18 raised issues dealing 2254, § S. C. enacting U. Furthermore, Congress judgments, under state custody persons with district court federal power to the made no reference wrongs previously for claimed corpus habeas federal over p. at See discussion state courts.17 passed upon corpus application on a habeas judge A federal supra. and facts, hear and determine “summarily required justice require,” law and matter as dispose § law. R. S. long This has been the S. C. § U. C. 28 U. S. §2244: required entertain an judge shall be “No circuit or district inquire corpus into the detention application writ of habeas for a States, person pursuant judgment to a of a court of the United of a legality has any State, appears of such detention if it that the or of prior on a judge or United States been determined pre- petition and the application for a writ presented determined, ground new not theretofore sents no justice will not be judge is satisfied that the ends of or court