C. A. 9th Cir. Certiorari denied.
The time has come to consider limitations on the availability of the writ of habeas corpus in federal courts, especially
*1094
for prisoners pressing stale claims that were fully ventilated in state courts. Others have expressed frustration in coping with stale cases, see,
e. g., Illinois
v.
Allen,
On October 14, 1965, a jury in King County, Wash., found Arthur Aiken and his codefendant guilty of murder in the first degree for the robbery and slayings of three gas station attendants in separate incidents within one month. Each victim was shot several times. The jury imposed the death penalty. On direct appeal, Aiken advanced numerous challenges to his conviction. Following a remand to the trial court, the Washington Supreme Court affirmed the conviction and the sentence,
State
v.
Aiken,
On July 26, 1979, fourteen years after his original conviction and eight years after his resentencing, Aiken filed this petition in the United States District Court for the Western District of Washington under 28 U. S. C. § 2254. He raised claims concerning pretrial publicity, the voluntariness of his confession, and the trial court’s failure to grant severance— *1095 all claims that had been raised and decided a decade earlier in his first appeal to the Washington Supreme Court. All but the pretrial publicity issue had been presented in his original petition for review here.
On February 22, 1980, the District Court denied the ha-beas petition because Aiken had prejudiced the State by waiting more than five years before filing his petition, see Habeas Corpus Rule 9(a).
1
The Court of Appeals for the Ninth Circuit reversed, holding that prejudice may not be presumed. On remand, the State presented evidence that it could locate only 30 of the 87 witnesses who testified at trial and that 136 of the State’s 138 exhibits were lost or destroyed. Finding that the evidence demonstrated that it would be difficult to retry Aikens should his petition for relief be granted, the District Court again dismissed the petition, concluding that prejudice as to retrial was also a ground for dismissal under Rule 9(a).
2
The Court of Appeals for the
*1096
Ninth Circuit again reversed, reasoning that Rule 9(a) allows consideration only of the State’s difficulty in “respond [ing] to the [habeas] petition,” and not consideration of the difficulty in retrying the petitioner.
The privileges of the writ of habeas corpus are not unlimited. Rather the doctrine of laches should apply to habeas actions as it applies to other actions for relief. Alternatively, Rule 9(a) should be changed to bar relief when delay has prejudiced the state’s ability to retry the petitioner.
The scope of habeas corpus as an avenue for repeated collateral attacks on criminal convictions has expanded enormously through decisions of this Court in the last three decades, see
Stone
v.
Powell,
Claims presented by way of habeas corpus petitions many years after conviction impose especially heavy burdens on the prison system, on society, and on the administration of justice. Our willingness to entertain these late claims tells prisoners that they need never reconcile themselves to what has happened: they need never “make peace” with society, learn a new way of life, or attempt to build a realistic future. Our *1097 society’s constant willingness to reopen cases long closed tells the public that we have no confidence that the laws are administered justly. Because reprosecution becomes increasingly difficult, and sometimes impossible, as time from the original conviction elapses, such relief on the basis of stale claims often results in the permanent release of dangerous individuals without supervision of any sort.
Inmates exploit society’s misplaced sentiment. When reexamination of the circumstances surrounding the detention comes late in the day, there is always a danger that process will be abused. A prisoner has an incentive to “store up” technical challenges to his conviction and then press his claims seriatim when reconsideration of his allegations is difficult and when reprosecution is impossible because key witnesses and exhibits have disappeared. Cf.
Del Vecchio
v.
United States,
“One form of abuse said to exist is that of a prisoner, knowing he or she has a valid claim for relief, intentionally forgoing presenting that claim until evidence of guilt has dissipated so that reconviction would be impossible.” ABA Standards for Criminal Justice, commentary following Standard 22-2.4 (2d ed. 1980).
I would allow summary dismissal of habeas petitions when the state can prove that the lapse of time has made re-prosecution impossible. Exceptions should be limited to *1098 cases where the petitioner can make a colorable claim of innocence, demonstrate that a significant miscarriage of justice has occurred, or show that his claim is based on grounds that, with the exercise of reasonable diligence, could not have been discovered earlier.
Notes
That measure provides:
“A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.”
As originally drafted, Rule 9(a) would have provided that a 5-year delay creates a presumption of prejudice rather than the present standard which requires the state to prove prejudice in every case, see Advisory Committee’s Note to Habeas Corpus Rule 9, 28 U. S. C., p. 272. The 5-year presumption was deleted by Congress, 90 Stat. 1335, see H. R. Rep. No. 94-1471, pp. 4-5 (1976), on the grounds that it was “unsound policy to require the defendant to overcome a presumption of prejudice and that the legislation brings Rule 9(a) into conformity with other provisions of law,” id., at 5 (footnotes omitted), and “into conformity with case law,” id., at 5, n. 9. See also 122 Cong. Rec. 30222-30223 (1976).
In so holding, the court relied on a comment in the Advisory Committee Note to the identical provision (Rule 9(a)) governing 28 U. S. C. §2255 proceedings. That comment states:
“Subdivision (a) provides a flexible, equitable time limitation based on laches to prevent movants from withholding their claims so as to prejudice *1096 the government both in meeting the allegations of the motion and in any possible retrial.” (Emphasis added.) 28 U. S. C., p. 286.
See also
United States
v.
Frady,