DURLEY v. MAYO, CUSTODIAN, FLORIDA STATE PRISON.
No. 489
Supreme Court of the United States
June 4, 1956
351 U.S. 277
Argued April 2, 1956.
Reeves Bowen, Assistant Attorney General of Florida, argued the cause for respondent. With him on the brief was Richard W. Ervin, Attorney General.
In this case our jurisdiction is questioned by the State of Florida because the judgment of the Supreme Court of that State, which we are asked to review and which was rendered without opinion, may have rested upon an adequate state ground. For the reasons hereafter stated, we find that to be true with the result that we have no jurisdiction to entertain this petition or to consider the merits of the federal questions suggested by petitioner. While we thus deem petitioner‘s allegations of fact as to the merits of this case to be irrelevant here, we imply nothing as to their truth or falsity, and we refrain from any discussion that depends upon or assumes their truth.
In 1945, petitioner Durley was convicted by a jury in the Criminal Court of Record for Polk County, Florida, on two informations. In each he was charged, in three counts, with stealing cattle.1 In the first count of the first information it was charged that, on July 7, 1945, petitioner, with two others, stole two steers from a Mrs. Bronson; in the second count, two cows; and in the third count, one heifer. The three counts of the other information charged that the same men on July 29, 1945, stole from a Mr. Zipperer a cow and two heifers, each of the animals allegedly stolen being the subject of a separate count. Petitioner was sentenced to serve five years’ imprisonment on each count, the terms to be served consecutively, thus making a total of 30 years.
Petitioner did not appeal from his conviction but, in 1949, labeling his petition a writ of error coram nobis, he,
In 1952, with the aid of court-appointed counsel, petitioner filed a petition for a writ of habeas corpus in a Florida Circuit Court. There he claimed that the informations upon which he had been convicted charged the commission of only two, rather than six, offenses and that he already had served sufficient time to satisfy a ten-year sentence which would have been the maximum sentence permissible for two such offenses. Petitioner also charged that his imprisonment was in violation of his rights under the Constitution of the United States. A writ was issued, a return was filed, and the court heard argument of counsel for each side. The writ was quashed. Petitioner appealed to the Supreme Court of Florida, where his appeal was dismissed without opinion.
In 1955, petitioner, again pro se, instituted the present proceeding by filing in the Supreme Court of Florida another petition for a writ of habeas corpus. In it he claimed, inter alia, that his detention was an “abuse of the Due Process Clause of the 14th Amendment to the Constitution of the United States . . .” and that his con-
A rehearing was denied but petitioner‘s application for a writ of certiorari was granted by this Court, 350 U. S. 872, and counsel was appointed by this Court to represent him here, 350 U. S. 900. The case was fully briefed and argued on the jurisdictional issue as well as on the merits.
The State of Florida has objected consistently to our entertaining jurisdiction of this proceeding. Its reason is that the Florida Supreme Court‘s denial of the 1955 petition for a writ of habeas corpus may have rested upon one or both of two adequate state grounds. Those grounds are (1) that, under Florida law, the issues presented in 1955 already had been rendered res judicata by the 1952 litigation, and (2) that, in any event, petitioner was precluded from raising the federal issues presented in 1955 because he had failed to raise them in comparable prior proceedings where he had a fair and adequate opportunity to do so.
The State‘s claim as to res judicata rests primarily upon
In the face of these expressions of the law of Florida, petitioner, in order to establish our jurisdiction, must demonstrate that neither of these state grounds can account for the decision below. “Where the highest court of the state delivers no opinion and it appears that the judgment might have rested upon a nonfederal ground, this Court will not take jurisdiction to review the judgment.” Stembridge v. Georgia, 343 U. S. 541, 547.
“It is a well established principle of this Court that before we will review a decision of a state court it must affirmatively appear from the record that the federal question was presented to the highest court of the State having jurisdiction and that its decision of the federal question was necessary to its determination of the cause. Honeyman v. Hanan, 300 U. S. 14, 18; Lynch v. New York, 293 U. S. 52. And where the decision of the state court might have been either on a state ground or on a federal ground and the state ground is sufficient to sustain the judgment, the Court will not undertake to review it. Klinger v. Missouri, 13 Wall. 257, 263; Wood Mowing & Reaping Machine Co. v. Skinner, 139 U. S. 293, 297; Allen v. Arguimbau, 198 U. S. 149, 154-155; Lynch v. New York, supra. . . . But it is likewise well settled that if the independent [state] ground was not a substantial or sufficient one, ‘it will be presumed that the State court based its judgment on the law
raising the Federal question, and this court will then take jurisdiction.’ Klinger v. Missouri, supra, p. 263; Johnson v. Risk, 137 U. S. 300, 307; Lawrence v. State Tax Commission, 286 U. S. 276, 282-283.” Williams v. Kaiser, 323 U. S. 471, 477-478.
While the federal questions relied upon by petitioner in 1955 are not set forth by him as clearly as they might be, we do not rely upon that inadequacy.3
Petitioner argues that
In its more recent cases, the Supreme Court of Florida has held that, on an original application for habeas corpus, the petitioner may not raise issues that have been raised in prior proceedings whatever those may have been. Also, that unless he can show good reason for his failure to do so, he is precluded from raising issues which he could have raised in any such prior proceedings. Washington v. Mayo, 77 So. 2d 620; Irvin v. Chapman, 75 So. 2d 591; Florida ex rel. Johnson v. Mayo, 69 So. 2d 307.4 In arguing before us that the issues now raised were or were not raised in prior proceedings, the parties have relied somewhat upon cases from this Court to support their arguments. Those decisions are not squarely in point because
Petitioner further suggests that, under Florida law, the doctrine of res judicata will “not be so rigidly applied as to defeat the ends of justice.” Universal Construction Co. v. Fort Lauderdale, 68 So. 2d 366, 369. Relying on that case, petitioner argues that the application of res judicata is within the discretion of the court, but that case does not provide the necessary authority for that conclusion. In that case, the Supreme Court of Florida, exercising traditional common-law and equitable powers, created an exception to the common-law doctrine of res judicata because of an “unusual situation” confronting it. Id., at 370. The question before us is whether, under the facts of this case, the Supreme Court of Florida must necessarily read a similar exception into an Act of the legislature. We find no authoritative basis for doing so.
Finally, it is suggested that the order of the Florida court denying the 1955 petition shows affirmatively that the court decided the petition on the merits of the federal questions raised. We do not so read it. At most it is
Inasmuch as the Supreme Court of Florida‘s denial of the 1955 petition might have rested on either of the state grounds now suggested by the State, petitioner has failed to establish our jurisdiction to decide the federal issues that he urges upon us. He has not shown that they have been passed upon by the highest court of his State.
For lack of jurisdiction, the case, therefore, must be
Dismissed.
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACK and MR. JUSTICE CLARK concur, dissenting.
Petitioner is a prisoner in the Florida State Prison, serving a total sentence of 30 years for cattle stealing. In February 1955 he filed a petition for a writ of habeas corpus in the Supreme Court of Florida. That court denied the petition without affording petitioner a hearing and without requiring a response from respondent, the custodian of the prison. A timely motion for rehearing was also denied. We granted certiorari. 350 U. S. 872.
In these circumstances, the allegations of the petition must be accepted as true for purposes of review. See Hawk v. Olson, 326 U. S. 271, 273; Williams v. Kaiser, 323 U. S. 471, 473-474. If they are taken as true, we have a shocking case of miscarriage of justice.
At the trial petitioner asserted his innocence. His two codefendants, however, admitted their guilt and implicated petitioner. Their testimony was the only evidence linking petitioner with the crimes charged. All three were convicted. Bath apparently received a sentence of two years’ imprisonment and Massey, 26 years. Petitioner, 53 years old at the time and never before accused of dishonesty, was sentenced to five years’ imprisonment on each of the 6 counts, each sentence to be served consecutively, making a total sentence of 30 years. Petitioner, now 63 years old, has served more than 10 years of his sentence.
In May 1949 petitioner, without the assistance of counsel, prepared a petition for writ of habeas corpus and filed it in the Supreme Court of Florida. The petition was inartistically drawn. Petitioner contended that his trial on a bill of information rather than on a grand-
In addition to the Croft affidavit, the habeas corpus petition was accompanied by an affidavit signed and sworn to by Massey. He recanted his trial testimony, clearing petitioner of all responsibility for the stolen cattle. Massey stated that his story implicating petitioner “was a falsehood and that I gave such testimony, hoping that it would aid me when my case came up.” The affidavit concluded, “Before God is my judge Dan Durley, never had anything to do with any cattle stealing that I testified to at the trial.”
The Supreme Court of Florida denied the 1949 petition for a writ of habeas corpus on the ground that petitioner had failed to show probable cause that his detention was unlawful. It should be noted that the 1949 petition did not assert that the use of perjured testimony deprived petitioner of a federal constitutional right.
In January 1952 petitioner filed a second habeas corpus petition in the Circuit Court of Union County, Florida,
The basis of the present litigation is the habeas corpus petition filed in the Florida Supreme Court in February 1955. Petitioner prepared it without the aid of counsel. The petition repeats the double-jeopardy contention as well as the charge that he was convicted solely on the basis of perjured testimony, coupling these allegations with a claim that his imprisonment deprives him of liberty “in violation of his Constitutional Rights afforded him by the State of Florida and the Constitution of the United States of America.” His federal constitutional arguments were elaborated in the motion for rehearing. Petitioner‘s claim that it violates due process to let his conviction stand solely on perjured testimony was raised for the first time in the 1955 habeas corpus petition—the one now under consideration.1
The Court dismisses the case on the ground that the Florida Supreme Court order denying habeas corpus might have rested on an adequate state ground—res judicata. I disagree.
Johnson v. Mayo, 69 So. 2d 307, and Irvin v. Chapman, 75 So. 2d 591, also relied on by the Court, are not in point. In both cases, the Florida Supreme Court held that an issue that could have been raised on direct appeal from the conviction could not be litigated in subsequent habeas corpus proceedings.2 Those cases did not involve the question now before us—whether prior habeas corpus proceedings bar the litigation of issues which could not have been raised on direct appeal from the conviction.3
The Florida Supreme Court has expressly dismissed a number of habeas corpus proceedings on the ground that former habeas corpus adjudications were res judicata.
Res judicata is not a rigid doctrine in Florida. The Supreme Court recently refused to apply it where to do so would “defeat the ends of justice.” Universal Const. Co. v. City of Ft. Lauderdale, 68 So. 2d 366, 369.4 Once the facts alleged by petitioner are conceded, as they must be on the present record, it defeats the ends of justice to deny relief here.
The language of the Florida Supreme Court‘s order in the present case indicates that petitioner‘s federal constitutional claims were rejected not on grounds of res judicata but on their merits. The petition was denied because of failure to show “probable cause to believe that [petitioner] is detained in custody without lawful authority.” Faced with a similar state court order in Williams v. Kaiser, 323 U. S., at 478, we said: “The denial of the petition on the grounds that it fails to state a cause of action strongly suggests that it was denied because there was no cause of action based on the federal right.” We should hold the same in the present case.
Once we reach the merits the answer seems clear. It is well settled that to obtain a conviction by the use of
Perhaps a hearing on the charges would dispel them. But on the present record, we have a grave miscarriage of justice involving an invasion of federal rights guaranteed by the
Notes
It is suggested that the Washington case does not preclude this Court from taking jurisdiction because in that case the court, while stating the rule that would preclude jurisdiction, did consider on its merits a nonfederal contention which had not been previously raised. But assuming that the contention so considered had involved a substantial federal question, this Court would have lacked jurisdiction to review the judgment for the reason that it might have rested upon the adequate state ground. For our purposes, therefore, the discussion of the merits in that case may be treated as dicta.
Furthermore, the contention considered on its merits in the Washington case “apparently was not raised upon the earlier proceeding . . . .” 77 So. 2d, at 622. In the instant case, the perjury issue was presented in the 1949 petition, although not in terms of a federal constitutional issue. The Washington case, therefore, is certainly no authority for a conclusion in the instant case that any issues growing out of the previously raised issue, that the conviction rested upon perjured testimony, could be raised in the proceeding which is before us.
“The basic principle upon which the doctrine of res judicata rests is that there should be an end to litigation and that ‘in the interest of the State every justiciable controversy should be settled in one action in order that the courts and the parties will not be bothered for the same cause by interminable litigation.’ 59 So. 2d at page 44; italics supplied. Nevertheless, when a choice must be made we apprehend that the State, as well as the courts, is more interested in the fair and proper administration of justice than in rigidly applying a fiction of the law designed to terminate litigation.” 68 So. 2d, at 369.