Fay v. Noia (372 U.S. 391)/Dissent Clark

Mr. Justice CLARK, dissenting.

I agree fully with and join the opinion of my Brother HARLAN. Beyond question the federal courts until today have had no power to release a prisoner in respondent Noia's predicament, there being no basis for such power in either the Constitution or the statute. But the Court today in releasing Noia makes an 'abrupt break' not only with the Constitution and the statute but also with its past decisions, disrupting the delicate balance of federalism so foremost in the minds of the Founding Fathers and so uniquely important in the field of law enforcement. The short of it is that Noia's incarceration rests entirely on an adequate and independent state ground-namely, that he knowingly failed to perfect any appeal from his conviction of murder. While it may be that the Court's 'decision today swings open no prison gates,' the Court must admit in all candor that it effectively swings closed the doors of justice in the face of the State, since it certainly cannot prove its case 20 years after the fact. In view of this unfortunate turn of events, it appears important that we canvass the consequences of today's action on state law enforcement.

First, there can be no question but that a rash of new applications from state prisoners will pour into the federal courts, and 98% of them will be frivolous, if history is any guide. This influx will necessarily have an adverse effect upon the disposition of meritorious applications, for, as my Brother Jackson said, they will '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.' Brown v. Allen, 344 U.S. 443, 537, 73 S.Ct. 397, 425, 97 L.Ed. 469 (1953) (concurring opinion). In fact, the courts are already swamped with applications which cannot, because of sheer numbers, be given more than cursory attention.

Second, the effective administration of criminal justice in state courts receives a staggering blow. Habeas corpus is in effect substituted for appeal, seriously disturbing the orderly disposition of state prosecutions and jeopardizing the finality of state convictions in disregard of the States' comprehensive procedural safeguards which, until today, have been respected by the federal courts. Essential to the administration of justice is the prompt enforcement of judicial decrees. After today state judgments will be relegated to a judicial limbo, subject to federal collateral attack-as here-a score of years later despite a defendant's willful failure to appeal.

The rights of the States to develop and enforce their own judicial procedures, consistent with the Fourteenth Amendment, have long been recognized as essential to the concept of a healthy federalism. Those rights are today attenuated if not obliterated in the name of a victory for the 'struggle for personal liberty.' But the Constitution comprehends another struggle of equal importance and places upon our shoulders the burden of maintaining it-the struggle for law and order. I regret that the Court does not often recognize that each defeat in that struggle chips away inexorably at the base of that very personal liberty which it seeks to protect. One is reminded of the exclamation of Pyrrhus: 'One more such victory * *  *, and we are utterly undone.'

These considerations have been of great concern to the Judicial Conference of the United States, which has frequently sought to have Congress repair the judicial loopholes in federal habeas corpus for state prisoners. Likewise, the Conference of Chief Justices at its annual meeting has officially registered its dismay, as has the National Association of Attorneys General. Proposed legislation sponsored by one or more of these groups has passed in the House in three separate sessions, but inaction by the Senate caused each bill to die on the vine. Those proposals apparently were sparked by our decision in Brown v. Allen, supra, but the Court today goes far beyond that decision by negating its companion case, Daniels v. Allen, 344 U.S. 443, 482-487, 73 S.Ct. 397, 422, 97 L.Ed. 469 (1953). While I have heretofore opposed such legislation, I must now admit that it may be the only alternative in restoring the writ of habeas corpus to its proper place in the judicial system. That place is one of great importance-a remedy against illegal restraint-but it is not a substitute for or an alternative to appeal, nor is it a burial ground for valid state procedures.

Mr. Justice HARLAN, whom Mr. Justice CLARK and Mr. Justice STEWART join, dissenting.

This decision, both in its abrupt break with the past and in its consequences for the future, is one of the most disquieting that the Court has rendered in a long time.

Section 2241 of the Judicial Code, 28 U.S.C. § 2241, entitled 'Power to grant writ,' which is part of the federal habeas corpus statute, provides among other things:

'(c) The writ of habeas corpus shall not extend to a prisoner     unless-

'(3) He is in custody in violation of the Constitution or     laws or treaties of the United States.'

I dissent from the Court's opinion and judgment for the reason that the federal courts have no power, statutory or constitutional, to release the respondent Noia from state detention. This is because his custody by New York does not violate any federal right, since it is pursuant to a conviction whose validity rests upon an adequate and independent state ground which the federal courts are required to respect.

A full exposition of the matter is necessary, and I believe it will justify the statement that in what it does today the Court has turned its back on history and struck a heavy blow at the foundations of our federal system.

The history of federal habeas corpus jurisdiction, I believe, leaves no doubt that today's decision constitutes a square rejection of long-accepted principles governing the nature and scope of the Great Writ.

Habeas corpus ad subjiciendum is today, as it has always been, a fundamental safeguard against unlawful custody. The importance of this prerogative writ, requiring the body of a person restrained of liberty to be brought before the court so that the lawfulness of the restraint may be determined, was recognized in the Constitution, and the first Judiciary Act gave the federal courts authority to issue the writ 'agreeable to the principles and usages of law.' Although the wording of earlier statutory provisions has been changed, the basic question before the court to which the writ is addressed has always been the same: in the language of the present statute, on the books since 1867, is the detention complained of 'in violation of the Constitution or laws or treaties of the United States'? Supra, p. 448.

Detention can occur in many contexts, and in each the scope of judicial inquiry will differ. Thus a child may be detained by a parent, an alien excluded by an immigration official, or a citizen arrested by a policeman and held without being brought to a magistrate. But the custody with which we are here concerned is that resulting from a judgment of criminal conviction and sentence by a court of law. And the question before us is the circumstances under which that custody may be held to be inconsistent with the commands of the Federal Constitution. What does history show?

1. Pre-1915 period.-The formative stage of the development of habeas corpus jurisdiction may be said to have ended in 1915, the year in which Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969, was decided. During this period the federal courts, on applications for habeas corpus complaining of detention pursuant to a judgment of conviction and sentence, purported to examine only the jurisdiction of the sentencing tribunal. In the leading case of Ex parte Watkins, 3 Pet. 193, 7 L.Ed. 650, the Court stated:

'An imprisonment under a judgment cannot be unlawful, unless     that judgment be an absolute nullity; and it is not a nullity      if the court has general jurisdiction of the subject,      although it should be erroneous.' 3 Pet., at 203.

Many subsequent decisions, dealing with both state and federal prisoners, and involving both original applications to this Court for habeas corpus and review of lower court decisions, reaffirmed the limitation of the writ to consideration of the sentencing court's jurisdiction over the person of the defendant and the subject matter of the suit. E.g., Ex parte Parks, 93 U.S. 18, 23 L.Ed. 787; Andrews v. Swartz, 156 U.S. 272, 15 S.Ct. 389, 39 L.Ed. 422; In re Belt, 159 U.S. 95, 15 S.Ct. 987, 40 L.Ed. 88; In re Moran, 203 U.S. 96, 27 S.Ct. 25, 51 L.Ed. 105.

The concept of jurisdiction, however, was subjected to considerable strain during this period, and the strain was not lessened by the fact that until the latter part of the last century, federal criminal convictions were not generally reviewable by the Supreme Court. The expansion of the definition of jurisdiction occurred primarily in two classes of cases: (1) those in which the conviction was for violation of an allegedly unconstitutional statute, and (2) those in which the Court viewed the detention as based on some claimed illegality in the sentence imposed, as distinguished from the judgment of conviction. An example of the former is Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717 in which the Court considered on its merits the claim that the acts under which the indictments were found were unconstitutional, reasoning that '(a)n unconstitutional law is void, and is as no law,' and therefore 'if the laws are unconstitutional and void, the Circuit Court acquired no jurisdiction of the causes.' 100 U.S., at 376-377. An example of the latter is Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872, in which this Court held that if a valid sentence had been carried out, and if the governing statute permitted only one sentence, the sentencing judge lacked jurisdiction to impose further punishment:

'(W)hen the prisoner * *  * by reason of a valid judgment, had      fully suffered one of the alternative punishments to which      alone the law subjected him, the power of the court to punish      further was gone.' 18 Wall., at 176.

It was also during this period that Congress, in 1867, first made habeas corpus available by statute to prisoners held under state authority. Act of February 5, 1867, c. 28, § 1, 14 Stat. 385. In this 1867 Act the Court now seems to find justification for today's decision, relying on the statement of one of its proponents that the bill was 'coextensive with all the powers that can be conferred' on the courts and judges of the United States. Cong.Globe, 39th Cong., 1st Sess. 4151. But neither the statute itself, its legislative history, nor its subsequent interpretation lends any support to the view that habeas corpus jurisdiction since 1867 has been exercisable whether or not the state detention complained of rested on decision of a federal question.

First, there is nothing in the language of the Act-which spoke of the availability of the writ to prisoners 'restrained of * *  * liberty in violation of the constitution *  *  * '-to suggest that there was any change in the nature of the writ as applied to one held pursuant to a judgment of conviction. The language was that typically employed in habeas corpus cases, and, as we have seen, it was not believed that a person so held was restrained in violation of law if the sentencing court had personal and subject matter jurisdiction. Rather, the change accomplished by the language of the Act related to the classes of prisoners (in particular, state as well as federal) for whom the writ would be available.

Second, what little legislative history there is does not suggest any change in the nature of the writ. The extremely brief debates indicated only a lack of understanding as to what the Act would accomplish, coupled with an effort by the proponents to make it clear that the purpose was to extend the availability of the writ to persons not then covered; there was no indication of any intent to alter its substantive scope. Thus, less than 20 years after enactment, a congressional committee could say of the 1867 Act that it was not 'contemplated by its framers or * *  * properly *  *  * construed to authorize the overthrow of the final judgments of the State courts of general jurisdiction, by the inferior Federal judges *  *  * .'

Third, cases decided under the Act during this period made it clear that the Court did not regard the Act as changing the character of the writ. In considering the lawfulness of the detention of state prisoners, the Court continued to confine itself to questions it regarded as 'jurisdictional.' See, e.g., In re Rahrer, 140 U.S. 545, 11 S.Ct. 865, 35 L.Ed. 572; Harkrader v. Wadley, 172 U.S. 148, 19 S.Ct. 119, 43 L.Ed. 399; Pettibone v. Nichols, 203 U.S. 192, 27 S.Ct. 111, 51 L.Ed. 148. And the Court repeatedly held that habeas corpus was not available to a state prisoner to consider errors, even constitutional errors, that did not go to the jurisdiction of the sentencing court. E.g., In re Wood, 140 U.S. 278, 11 S.Ct. 738, 35 L.Ed. 505; Andrews v. Swartz, 156 U.S. 272, 15 S.Ct. 389, 39 L.Ed. 422; Bergemann v. Backer, 157 U.S. 655, 15 S.Ct. 727, 39 L.Ed. 845.

At the same time, in dealing with applications by state prisoners the Court developed the doctrine of exhaustion of state remedies, a doctrine now embodied in 28 U.S.C. § 2254. In Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868, the prisoner had brought federal habeas corpus seeking release from his detention pending a state prosecution, and alleging that the statute under which he was to be tried was void under the Contract Clause. The power of the federal court to act in this case, if the allegations could be established, was clear since under accepted principles the State would have lacked 'jurisdiction' to detain the prisoner. But the Court observed that the question of constitutionality would be open to the prisoner at his state trial and, absent any showing of urgency, considerations of comity counseled the exercise of discretion to withhold the writ at this early stage. In subsequent decisions, the Court continued to insist that state remedies be exhausted, even when the applicant alleged a lack of jurisdiction in state authorities which, if true, would have enabled the federal court to act on the application immediately. E.g., Ex parte Fonda, 117 U.S. 516, 6 S.Ct. 848, 29 L.Ed. 994; Cook v. Hart, 146 U.S. 183, 13 S.Ct. 40, 36 L.Ed. 934; New York v. Eno, 155 U.S. 89, 15 S.Ct. 30, 39 L.Ed. 80. As stated in Cook v. Hart, 146 U.S., at 195, 13 S.Ct., at 44, 'The party charged waives no defect of jurisdiction by submitting to a trial of his case upon the merits * *  *. Should (his) rights be denied, his remedy in the federal court will remain unimpaired.' (Emphasis added.) The question whether the Constitution deprived the State of jurisdiction, in other words, would remain open under traditional doctrine, on collateral as well as direct attack.

There can be no doubt of the limited scope of habeas corpus during this formative period, and of the consistent efforts to confine the writ to questions of jurisdiction. But the cardinal point for present purposes is that in no case was it held, or even suggested, that habeas corpus would be available to consider any claims by a prisoner held pursuant to a state court judgment whose validity rested on an adequate nonfederal ground. Indeed, so long as the writ was confined to claims by state prisoners that the State was constitutionally precluded from exercising its jurisdiction in the particular case, it is difficult to conceive of a decision to detain in such cases resting on an adequate state ground. Even when the concept of jurisdiction was expanded, as in Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717, and other decisions, the matters open on habeas were still limited to those which were believed to have deprived the sentencing court of all competence to act, and which therefore could always be raised on collateral attack. It is for this reason that the Royall line of 'exhaustion' cases, relied on so heavily by the Court, has no real bearing on the problem before us. For those cases dealt only with the discretion of the court to take action which, if the allegations of lack of state jurisdiction were upheld, it would have had power to take either before or after state consideration. The issue here, on the other hand, is one of power, and wholly different considerations are involved.

In those few instances during this early period when the Court discussed questions it did not regard as jurisdictional, it occasionally went so far as to suggest that a constitutional claim could not be raised on habeas even if the state decision to detain rested on an inadequate state ground-that the only avenue of relief was direct review. Thus in Andrews v. Swartz, 156 U.S. 272, 15 S.Ct. 389, 39 L.Ed. 422, where the claim made on federal habeas was the systematic exclusion of Negroes from a state jury, the Court held it 'a sufficient answer to this contention that the state court had jurisdiction both of the offence charged and of the accused.' Id., at 276, 15 S.Ct., at 391. It continued:

'Even if it be assumed that the state court improperly denied     to the accused *  *  * the right to show by proof that persons      of his race were arbitrarily excluded *  *  * it would not      follow that the court lost jurisdiction of the case within      the meaning of the well-established rule that a prisoner      under conviction and sentence of another court will not be      discharged on habeas corpus unless the court that passed the      sentence was so far without jurisdiction that its proceedings      must be regarded as void.' Ibid.

2. 1915-1953 period.-The next stage of development may be described as beginning in 1915 with Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969, and ending in 1953 with Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469. In Frank, the prisoner had claimed before the state courts that the proceedings in which he had been convicted for murder had been dominated by a mob, and the State Supreme Court, after consideration not only of the record but of extensive affidavits, had concluded that mob domination had not been established. Frank then sought federal habeas, and this Court affirmed the denial of relief. But in doing so the Court recognized that Frank's allegation of mob domination raised a constitutional question which he was entitled to have considered by a competent tribunal uncoerced by popular pressures. Such 'corrective process' had been afforded by the State Supreme Court, however, and since Frank had received 'notice and a hearing, or an opportunity to be heard' on his constitutional claims (237 U.S., at 326, 35 S.Ct., at 586, 59 L.Ed. 969), his detention was not in violation of federal law and habeas corpus would not lie.

It is clear that a new dimension was added to habeas corpus in this case, for in addition to questions previously thought of as 'jurisdictional,' the federal courts were now to consider whether the applicant had been given an adequate opportunity to raise his constitutional claims before the state courts. And if no such opportunity had been afforded in the state courts, the federal claim would be heard on its merits. The Court thus rejected the views expressed in Andrews v. Swartz, supra, 372 U.S., p. 455, 83 S.Ct., p. 857, by holding, in effect, that a constitutional claim could be heard on habeas if the State's refusal to give it proper consideration rested on an inadequate state ground. But habeas would not lie to reconsider constitutional questions that had been fairly determined. And a fortiori it would not lie to consider a question when the state court's refusal to do so rested on an adequate and independent state ground.

In this connection, it is important to note the section of the opinion relating to Frank's separate constitutional claim that his involuntary absence from the courtroom at the time the verdict was rendered invalidated the conviction. Frank had failed to raise this point in his motion for a new trial; the state court held that it had been 'waived'; and this Court decided that the state rule barring assertion of the point after failure to raise it in a motion for new trial was reasonable and did not violate due process. Clearly, the significance of the Court's ruling was that as to this constitutional claim, whatever its merits if the point had been properly preserved, there was an adequate nonfederal ground for the detention.

In no case prior to Brown v. Allen, I submit, was there any substantial modification of the concepts articulated in the Frank decision. In Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543, this Court did require a hearing on federal habeas of a claim similar to that in Frank, of mob domination of the trial, even though the state appellate court had purported to pass on the claim, but only by refusing to 'assume that the trial was an empty ceremony.' The decision of this Court is sufficiently ambiguous that it seems to have meant all things to all men. But I suggest that the decision cannot be taken to have overruled Frank; it did not purport to do so, and indeed it was joined by two Justices who had joined in the Frank opinion. Rather, what the Court appears to have held was that the state appellate court's perfunctory treatment of the question of mob domination, amounting to nothing more than reliance on the presumptive validity of the trial, was not in fact acceptable corrective process and federal habeas would therefore lie to consider the merits of the claim. Until today, the Court has consistently so interpreted the opinion, as in Ex parte Hawk, 321 U.S. 114, 118, 64 S.Ct. 448, 450, 88 L.Ed. 572, where Moore was cited as an example of a case in which 'the remedy afforded by state law proves in practice unavailable or seriously inadequate.' See also Jennings v. Illinois, 342 U.S. 104, 111, 72 S.Ct. 123, 127, 96 L.Ed. 119.

Certainly, there is no basis in the Moore opinion, whatever it may fairly be taken to mean, for concluding that the Court required consideration on federal habeas of a question which the state court had had an adequate state ground for refusing to consider. The claim of mob domination was considered, although apparently inadequately, by the state court, and it was only on this premise that the claim was required t be heard on habeas.

Subsequent decisions involving state prisoners continued to indicate that the controlling question on federal habeas-apart from matters going to lack of state jurisdiction in light of federal law-was whether or not the State had afforded adequate opportunity to raise the federal claim. If not, the federal claim could be considered on its merits. See, e.g., Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791; White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348; Woods v. Nierstheimer, 328 U.S. 211, 66 S.Ct. 996, 90 L.Ed. 1177; cf. Jennings v. Illinois, 342 U.S. 104, 72 S.Ct. 123, 96 L.Ed. 119.

A development paralleling that in Frank v. Mangum took place during this period with regard to federal prisoners. The writ remained unavailable to consider questions that were or could have been raised in the original proceedings, or on direct appeal, see Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982, but it was employed to permit consideration of constitutional questions that could not otherwise have been adequately presented to the courts. E.g., Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 S.Ct. 1461; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302. This limited scope of habeas corpus, and its statutory substitute 28 U.S.C. § 2255, in relation to federal prisoners may have survived Brown v. Allen and may still survive today. See, e.g., Franano v. United States, 8 Cir., 303 F.2d 470, cert. denied, 371 U.S. 865, 83 S.Ct. 125, 9 L.Ed.2d 102. Compare Jordan v. United States, 352 U.S. 904, 77 S.Ct. 151, 1 L.Ed.2d 114.

To recapitulate, then, prior to Brown v. Allen, habeas corpus would not lie for a prisoner who was in custody pursuant to a state judgment of conviction by a court of competent jurisdiction if he had been given an adequate opportunity to obtain full and fair consideration of his federal claim in the state courts. Clearly, under this approach, a detention was not in violation of federal law if the validity of the state conviction on which that detention was based rested on an adequate nonfederal ground.

3. Post-1953, Brown v. Allen, period.-In 1953, this Court rendered its landmark decisions in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, and Daniels v. Allen, reported therewith, 344 U.S., at 482-487, 73 S.Ct., at 420-422. Both cases involved applications for federal habeas corpus by prisoners who were awaiting execution pursuant to state convictions. In both cases, the constitutional contentions made were that the trial court had erred in ruling confessions admissible and in overruling motions to quash the indictment on the basis of alleged discrimination in the selection of jurors.

In Brown, these contentions had been presented to the highest court of the State, on direct appeal from the conviction, and had been rejected by that court on the merits, State v. Brown, 233 N.C. 202, 63 S.E.2d 99, after which this Court had denied certiorari, 341 U.S. 943, 71 S.Ct. 997, 95 L.Ed. 1369. At this point, the Court held, Brown was entitled to full reconsideration of these constitutional claims, with a hearing if appropriate, in an application to a Federal District Court for habeas corpus.

It is manifest that this decision substantially expanded the scope of inquiry on an application for federal habeas corpus. Frank v. Mangum and Moore v. Dempsey had denied that the federal courts in habeas corpus sat to determine whether errors of law, even constitutional law, had been made in the original trial and appellate proceedings. Under the decision in Brown, if a petitioner could show that the validity of a state decision to detain rested on a determination of a constitutional claim, and if he alleged that determination to be erroneous, the federal court had the right and the duty to satisfy itself of the correctness of the state decision.

But what if the validity of the state decision to detain rested not on the determination of a federal claim but rather on an adequate nonfederal ground which would have barred direct review by this Court? That was the questionin Daniels. The attorney for the petitioners in that case had failed to mail the appeal papers on the last day for filing, and although he delivered them by hand the next day, the State Supreme Court refused to entertain the appeal, ruling that it had not been filed on time. This ruling, this Court held, barred federal habeas corpus consideration of the claims that the state appellate court had refused to consider. Language in Mr. Justice Reed's opinion for the Court appeared to support the result alternatively in terms of waiver, failure to exhaust state remedies, and the existence of an adequate state ground. But while the explanation may have been ambiguous, the result was clear: habeas corpus would not lie for a prisoner who was detained pursuant to a state judgment which, in the view of the majority in Daniels, rested on a reasonable application of the State's own procedural requirements. Moreover, the issue was plainly viewed as one of authority, not of discretion. 344 U.S., at 485, 73 S.Ct., at 421, 97 L.Ed. 469.

I do not pause to reconsider here the question whether the state ground in Daniels was an adequate one; persuasive arguments can be made that it was not. The important point for present purposes is that the approach in Daniels was wholly consistent with established principles in the field of habeas corpus jurisdiction. The problem, however, had been brought into sharper focus by the result in Brown. Once it is made clear that the questions open on federal habeas extend to such matters as the admissibility of confessions, or of other evidence, the possibility that inquiry may be precluded by the existence of a state ground adequate to support the judgment is substantially increased.

Issues similar to those in Daniels next came before the Court in Irvin v. Dowd, 359 U.S. 394, 79 S.Ct. 825, 3 L.Ed.2d 900. In that case, the state court's decision affirming Irvin's conviction for murder was ambiguous and it could have been interpreted to rest on a state ground even though Irvin's federal constitutional claims were considered. Irvin v. State, 236 Ind. 384, 139 N.E.2d 898; see also the dissenting opinion of this writer in Irvin v. Dowd, supra, 359 U.S. 412, 79 S.Ct. 835, 3 L.Ed.2d 900. This Court, in reversing a dismissal of an application for federal habeas corpus, concluded that the state court decision had rested on determination of Irvin's federal claims, and held that those claims could therefore be considered on federal habeas. The majority appeared to approach the problem as one of exhaustion, but the basic determination was that the state court judgment, pursuant to which Irvin was detained, did not rest on an application of the State's procedural rules.

This brings us to the present case. There can, I think, be no doubt that today's holding-that federal habeas will lie despite the existence of an adequate and independent nonfederal ground for the judgment pursuant to which the applicant is detained-is wholly unprecedented. Indeed, it constitutes a direct rejection of authority that is squarely to the contrary. That the result now reached is a novel one does not, of course, mean that it is necessarily incorrect or unwise. But a decision which finds virtually no support in more than a century of this Court's experience should certainly be subject to the most careful scrutiny.

The true significance of today's decision can perhaps best be laid bare in terms of a hypothetical case presenting questions of the powers of this Court on direct review, and of a Federal District Court on habeas corpus.

1. On direct review.-Assume that a man is indicted, and held for trial in a state court, by a grand jury from which members of his race have been systematically excluded. Assume further that the State requires any objection to the composition of the grand jury to be raised prior to the verdict, that no such objection is made, and that the defendant seeks to raise the point for the first time on appeal from his conviction. If the state appellate court refuses to consider the claim because it was raised too late, and if certiorari is sought and granted, the initial question before this Court will be whether there was an adequate state ground for the judgment below. If the petitioner was represented by counsel not shown to be incompetent, and if the necessary information to make the objection is not shown to have been unavailable at the time of trial, it is certain that the judgment of conviction will stand, despite the fact the indictment was obtained in violation of the petitioner's constitutional rights.

What is the reason for the rule that an adequate and independent state ground of decision bars Supreme Court review of that decision-a rule which, of course, is as applicable to procedural as to substantive grounds? In Murdock v. Memphis, 20 Wall. 590, 632-636, 22 L.Ed. 429, it was concluded that under the governing statute (i) the Court did not have jurisdiction, on review of a state decision, to examine and decide 'questions not of a Federal character,' id., at 633, and (ii) an erroneous decision of a federal question by a state court could not warrant reversal if there were:

'any other matter or issue adjudged by the State court, which     is sufficiently broad to maintain the judgment of that court,      notwithstanding the error in deciding the issue raised by the      Federal question.' Id., at 636.

But as the Court in Murdock so strongly implied, and as emphasized in subsequent decisions, the adequate state ground rule has roots far deeper than the statutes governing our jurisdiction, and rests on fundamentals that touch this Court's habeas corpus jurisdiction equally with its direct reviewing power. An examination of the alternatives that might conceivably be followed will, I submit, confirm that the rule is one of constitutional dimensions going to the heart of the division of judicial powers in a federal system.

One alternative to the present rule would be for the Court to review and decide any federal questions in the case, even if the determination of nonfederal questions were adequate to sustain the judgment below, and then to send the case back to the state court for further consideration. But it needs no extended analysis to demonstrate that such action would exceed this Court's powers under Article III. As stated in Herb v. Pitcairn, 324 U.S. 117, 126, 65 S.Ct. 459, 463, 89 L.Ed. 789:

'(O)ur power is to correct wrong judgments, not to revise     opinions. We are not permitted to render an advisory opinion,     and if the same judgment would be rendered by the state court      after we corrected its views of federal laws, our review      could amount to nothing more than an advisory opinion.'

Another alternative, which would avoid the problem of advisory opinions, would be to take the entire case and to review on the merits the state court's decision of every question in it. For example, in our hypothetical case the Court might consider on its merits the question whether the state court correctly ruled that under state law objections to the composition of the grand jury must be made prior to the verdict.

To a limited extent, of course, this procedural ruling of the state court raises federal as well as state questions. It is clear that a State may not preclude Supreme Court review of federal claims by discriminating against or evading the assertion of a federal right, and indeed that state procedural grounds for refusal to consider a federal claim must rest on a 'fair or substantial basis.' Occasionally this means that a state procedural rule which may properly preclude the raising of state claims in a state court cannot thwart review of federal claims in this Court. These principles are inherent in the concept that a state ground, to be of sufficient breadth to support the judgment, must be both 'adequate' and 'independent.'

But determination of the adequacy and independence of the state ground, I submit, marks the constitutional limit of our power in this sphere. The reason why this is so was perhaps most articulately expressed in a different but closely related context by Mr. Justice Field in his opinion in Baltimore & O.R. Co. v. Baugh, 149 U.S. 368, 401, 13 S.Ct. 914, 37 L.Ed. 772. He stated, in a passage quoted with approval by the Court in the historic decision in Erie R. Co. v. Tompkins, 304 U.S. 64, 78-79, 58 S.Ct. 817, 822, 82 L.Ed. 1188:

'(T)he constitution of the United States * *  * recognizes and      preserves the autonomy and independence of the states,      independence in their legislative and independence in their      judicial departments. Supervision over either the legislative     or the judicial action of the states is in no case      permissible except as to matters by the constitution      specifically authorized or delegated to the United States. Any interference with either, except as thus permitted, is an     invasion of the authority of the state, and, to that extent,      a denial of its independence.'

For this Court to go beyond the adequacy of the state ground and to review and determine the correctness of that ground on its merits would, in our hypothetical cae, be to assume full control over a State's procedures for the administration of its own criminal justice. This is and must be beyond our power if the federal system is to exist in substance as well as form. The right of the State to regulate its own procedures governing the conduct of litigants in its courts, and its interest in supervision of those procedures, stand on the same constitutional plane as its right and interest in framing 'substantive' laws governing other aspects of the conduct of those within its borders.

There is still a third possible course this Court might follow if it were to reject the adequate state ground rule. The Act of 1867, which in § 1 extended the habeas corpus jurisdiction to state prisoners detained in violation of federal law, in § 2 gave the Supreme Court the authority, in cases coming from the state courts, to order execution directly without remanding the case. 14 Stat. 385, 386-387. That authority, which has been exercised at least once, remained unimpaired through the modifications of appellate and certiorari jurisdiction, and exists today. Acting pursuant to that authority in our hypothetical case, this Court might grant certiorari, 'ignore' the state ground of decision, decide the federal question and, instead of merely remanding the case, issue a writ requiring the petitioner's release from custody. By this simple device, the Court, it might be argued, would avoid problems of advisory opinions while at the same time refraining from consideration of questions of state law.

But apart from the unseemliness of such a dispoition, it is apparent that what the Court would actually be doing would be to decide the state law question sub silentio and to reverse the state court judgment on that question. For if the petitioner is detained pursuant to the judgment, and his detention is to be terminated, that must mean that the state ground is not adequate to support the only purpose for which the judgment was rendered. The judgment, in other words, becomes a nullity.

Moreover, the future effect of such a disposition is precisely the same as a reversal on the merits of the question of state law. If noncompliance with a state rule requiring a particular constitutional claim to be raised before verdict does not preclude consideration of the claim by this Court, then the rule is invalid in every significant sense, since no judgment based on its application can ever be effective.

In short, the constitutional infirmities of such a disposition by this Court are the same as those inherent in review of the state question on its merits. The vice, however, is greater because the Court would, in actuality, be invalidating a state rule without even purporting to consider it.

2. On habeas corpus.-The adequate state ground doctrine thus finds its source in basic constitutional principles, and the question before us is whether this is as true in a collateral attack in habeas corpus as on direct review. Assume, then, that after dismissal of the writ of certiorari in our hypothetical case, the prisoner seeks habeas corpus in a Federal District Court, again complaining of the composition of the grand jury that indicted him. Is that federal court constitutionally more free than the Supreme Court on direct review to 'ignore' the adequate state ground, proceed to the federal question, and order the prisoner's release?

The answer must be that it is not. Of course, as the majority states, a judgment is not a 'jurisdictional prerequisite' to a habeas corpus application, ante, p. 430 but that is wholly irrelevant. The point is that if the applicant is detained pursuant to a judgment, termination of the detention necessarily nullifies the judgment. The fact that a District Court on habeas has fewer choices than the Supreme Court, since it can only act on the body of the prisoner, does not alter the significance of the exercise of its power. In habeas as on direct review, ordering the prisoner's release invalidates the judgment of conviction and renders ineffective the state rule relied upon to sustain that judgment. Try as the majority does to turn habeas corpus into a roving commission of inquiry into every possible invasion of the applicant's civil rights that may ever have occurred, it cannot divorce the writ from a judgment of conviction if that judgment is the basis of the detention.

Thus in the present case if this Court had granted certiorari to review the State's denial of coram nobis, had considered the coerced confession claim, and had ordered Noia's release, the necessary effects of that disposition would have been (1) to set aside the conviction and (2) to invalidate application of the New York rule requiring the claim to be raised on direct appeal in order to be preserved. It is, I think, beyond dispute that the Court does exactly the same thing by affirming the decision below in this case. In doing so, the Court exceeds its constitutional power if in fact the state ground relied upon to sustain the judgment of conviction is an adequate one. See pp. 472-476, infra. The effect of of the approach adopted by the Court is, indeed, to do away with the adequate state ground rule entirely in every state case, involving a federal question, in which detention follows from a judgment.

The majority seems to recognize at least some of the consequences of its decision when it attempts to fill the void created by abolition of the adequate state ground rule in state criminal cases. But the substitute it has fashioned-that of 'conscious waiver' or 'deliberate bypassing' of state procedures is, as I shall next try to show, wholly unsatisfactory.

ATTEMPTED PALLIATIVES.

Apparently on the basis of a doctrine analogous to that of 'unclean hands,' the Court states that a federal judge, in his discretion, may deny relief on habeas corpus to one who has understandingly and knowingly refused to avail himself of state procedures. But such a test, if it is meant to constitute a limitation on interference with state administration of criminal justice, falls far short of the mark. In fact, as explained and applied in this case, it amounts to no limitation at all.

First, the Court explains that the test is one calling for the exercise of the district judge's discretion, that the judge may, in other words, grant relief even when a conscious waiver has been shown. Thus the Court does not merely tell the States that, if they wish to detain those whom they convict, they must revamp their entire systems of criminal procedures so that no forfeiture may be imposed in the absence of deliberate choice; the States are also warned that even a deliberate, explicit, intelligent choice not to assert a constitutional right may not preclude its assertion on federal habeas.

Second, the Court states (as it must if it is to adhere to its definition) that '(a) choice made by counsel not participated in by the petitioner does not automatically bar relief.' Ante, p. 439. It is true that there are cases in which the adequacy of the state ground necessarily turns on the question whether the defendant himself expressly and intelligently waived a constitutional right. Foremost among these are the cases involving right to counsel, for the Court has made it clear that this right cannot be foregone without deliberate choice by the defendant. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. But to carry this principle over in full force to cases in which a defendant is represented by counsel not shown to be incompetent is to undermine the entire representational system. We have manifested an ever-increasing awareness of the fundamental importance of representation by counsel, see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, and yet today the Court suggests that the State may no more have a rule of forfeiture for one who is competently represented than for one who is not. The effect on state procedural rules may be disastrous.

Third, when it comes to apply the 'waiver' test in this case, the Court then in effect reads its own creation out of existence. Recognizing that Noia himself decided not to appeal, and that he apparently made this choice after consultation with counsel, the Court states that his decision was nevertheless not a 'waiver.' Since a new trial might have resulted in a death sentence, Noia was, in the majority's view, confronted with a 'grisly choice,' and he quite properly declined to play 'Russian roulette' by appealing his conviction. Ante, pp. 439-440.

Does the Court mean by these colorful phrases that it would be unconstitutional for the State to impose a heavier sentence in a second trial for the same offense? Apparently not, since the majority assures us that there may be some cases in which a risk of a heavier sentence must be run. What distinguishes this case, we are told, is that the risk of the death sentence on a new trial was substantial in view of the trial judge's statement that Noia's past record and his involvement in the crime almost led the judge to disregard the jury's recommendation against a death sentence.

What the Court seems to be saying in this exercise in fine distinctions is that no waiver of a right can be effective if some adverse consequence might reasonably be expected to follow from exercise of that right. Under this approach, of course, there could never be a binding waiver, since only an incompetent would give up a right without any good reason, and an incompetent cannot make an intelligent waiver. The Court wholly ignores the question whether the choice made by the defendant is one that the State could constitutionally require.

Looked at from any angle, the concept of waiver which the Court has created must be found wanting. Of gravest importance, it carries this Court into a sphere in which it has no proper place in the context of the federal system. The true limitations on our constitutional power are those inherent in the rule requiring that a judgment resting on an adequate state ground must be respected.

ADEQUACY OF THE STATE GROUND HERE INVOLVED.

It is the adequacy, or fairness, of the state ground that should be the controlling question in this case. This controlling question the Court does not discuss.

New York asserts that a claim of the kind involved here must be raised on timely appeal if it is to be preserved, and contends that in permitting an appeal it has provided a reasonable opportunity for the claim to be made. The collateral post-conviction writ of coram nobis, the State has said, remains a remedy only for the calling up of facts unknown at the time of the judgment. See People v. Noia, decided sub nom. People v. Caminito, 3 N.Y.2d 596, 601, 170 N.Y.S.2d 799, 804, 148 N.E.2d 139, 143. In other words, the State claims that it may constitutionally detain a man pursuant to a judgment of conviction, regardless of any error that may have led to that conviction, if the relevant facts were reasonably available and an appeal was not taken.

Under the circumstances here-particularly the fact that Noia was represented by counsel whose competence is not challenged-is this a reasonable ground for barring collateral assertion of the federal claim? Certainly the State has a vital interest in requiring that appeals be taken on the basis of facts known at the time, since the first assertion of a claim many years later might otherwise require release long after it was feasible to hold a new trial. And although in Daniels v. Allen it might have been argued that the State's refusal to entertain an appeal actually received on time amounted to an evasion of the federal claim. no such argument can be made here, since no appeal was ever sought.

Moreover, we should be slow to reject-as an invalid barrier to the raising of a federal right-a state determination that one forum rather than another must be resorted to for the assertion of that right. A far more rigid restriction of federal forums was upheld in Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834. In that case, the Court sustained a federal statute permitting an attack on the validity of an administrative price regulation to be made only on timely review of the administrative order, and precluding the defense of invalidity in a later criminal prosecution for violation of the regulation. What the Court there said bears repetition here:

'No procedural principle is more familiar to this Court than     that a constitutional right may be forfeited in criminal as      well as civil cases by the failure to make timely assertion      of the right before a tribunal having jurisdiction to      determine it.' 321 U.S., at 444, 64 S.Ct., at 677.

But is there some special circumstance here that operates to invalidate the nonfederal ground? Certainly it cannot be that the claim of a coerced confession is of such a nature that a State is constitutionally compelled to permit its assertion at any time even if it could have been, but was not, raised on appeal. Many federal decisions have held that a federal prisoner held pursuant to a federal conviction may not assert such a claim in collateral proceedings when it was not, but could have been, asserted on appeal. E.g., Davis v. United States, 7 Cir., 214 F.2d 594, cert. denied, 353 U.S. 960, 77 S.Ct. 870, 1 L.Ed.2d 911; Smith v. United States, 88 U.S.App.D.C. 80, 187 F.2d 192, cert. denied, 341 U.S. 927, 71 S.Ct. 792, 95 L.Ed. 1358; see Hodges v. United States, 108 U.S.App.D.C. 375, 282 F.2d 858, cert. dismissed, 368 U.S. 139, 82 S.Ct. 235, 7 L.Ed.2d 184.

Is it then a basis for invalidating the nonfederal ground that Noia's two codefendants are today free from custody on facts which Noia says are identical to those in his case? Does the nonfederal ground fall when the federal claim appears to have obvious merit? There may be some question whether the facts in Noia's case and those in Bonino's and Caminito's are identical, but assuming that they are, I think it evident that the nonfederal ground must still stand.

Again, there is highly relevant precedent dealing with federal prisoners. In Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982, Sunal and Kulick had been prosecuted for violation of the Selective Service Act, and both had sought to raise a defense the court had refused to consider. Both were convicted and sentenced to imprisonment but took no appeal, quite evidently because such an appeal would have been to no avail under the existing state of the law. Subsequently, in another case, this Court held on comparable facts that the defense in question must be permitted. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567. Sunal and Kulick then sought relief on habeas corpus, and this relief was denied. The opinion of the Court observed that there had been no barrier to the perfection of appeals by these prisoners and no facts which were not then known. That an appeal may have appeared futile at the time (indeed, far more futile than was the case here) was held not a sufficient basis for collateral relief. The present case, I submit, would be less troublesome than Sunal even had it involved a federal prisoner.

Surely, the state ground is not rendered inadequate because on a new trial for the same offense, Noia might have received the death sentence. The State is well within constitutional limits in permitting such a sentence to be imposed. Of particular relevance here is the decision in Larson v. United States, 5 Cir., 275 F.2d 673. Two criminal defendants had been tried and sentenced to imprisonment by a federal court. One defendant, Juelich, had moved for a continuance or a change of venue, on the ground of community prejudice, and his motion had been denied. Both defendants were convicted; Juelich appealed from his conviction; and the Court of Appeals reversed, Juelich v. United States, 5 Cir., 214 F.2d 950, holding that the constitutional requirement of a fair trial had been violated by the refusal to grant a change of venue or a continuance. Larson, the other defendant, had chosen not to appeal, apparently because he feared that the death sentence might be imposed in a new trial, but after his codefendant's success, he sought collateral relief under § 2255. That relief was denied by the District Court, and the Court of Appeals affirmed, stating:

'We do not say * *  * that in every instance, before resort      can be had to Section 2255 there must be an appeal. We say     only that, in the circumstances of this case, Larson, taking      a calculated risk, made a free choice not to jeopardize his      life, and he is bound by that decision. * *  * Whatever errors      there were in his trial were known to Larson and to his      counsel-for the same errors formed the basis for Juelich's      appeal. Manifest Justice to an accused person requires only     that he have an opportunity to correct errors that may have      led to an unfair trial. The orderly administration of justice     requires that even a criminal case some day come to an end.'      275 F.2d at 679-680.

This Court denied certiorari. 363 U.S. 849, 80 S.Ct. 1627, 4 L.Ed.2d 1732.

Decisions such as Sunal and Larson are reasoned expressions by the federal judiciary of its views on the fair and proper administration of federal criminal justice. We cannot turn around and tell the State of New York that it is constitutionally prohibited from being governed by the same considerations.

I recognize that Noia's predicament may well be thought one that strongly calls for correction. But the proper course to that end lies with the New York Governor's powers of executive clemency, not with the federal courts. Since Noia is detained pursuant to a state judgment whose validity rests on an adequate and independent state ground, the judgment below should be reversed.