Harris v. Nelson/Dissent Stewart

Mr. Justice STEWART, dissenting.

I concur with most of what is said in the Court's opinion, but cannot concur in its judgment.

I wholly agree that Rule 33 is inapplicable to habeas corpus proceedings. Contrary to my Brother HARLAN, I further agree that federal judges in carrying out their duty to dispose of habeas corpus applications 'as law and justice require,' 28 U.S.C. § 2243, should not be inhibited by inflexibly formalized procedural rules. In getting at the facts in such cases, the district courts should be given wide leeway for 'discretion to exercise their common sense.' Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 514, 7 L.Ed.2d 473.

However, for the reasons stated in Mr. Justice Harlan's dissenting opinion today in Kaufman v. United States, 394 U.S. 217, 242, 89 S.Ct. 1068, 1082, 22 L.Ed.2d 227, which I have joined, I would affirm the judgment in the present case.