AMOS REED, ETC. AND THE ATTORNEY GENERAL OF NORTH CAROLINA,
PETITIONERS V. DANIEL ROSS

   No. 83-218

   In the Supreme Court of the United States

   October Term, 1983

   On Writ of Certiorari to the United States Court of Appeals for the
Fourth Circuit

   Brief for the United States as Amicus Curiae Supporting Petitioners

            TABLE OF CONTENTS
   Interest of the United States
   Statement
   Introduction and summary of argument
   Argument
      I. Respondent's constitutional claim was not novel in 1969
          A. Respondent's claim that the State had the burden
             of proof, though not yet validated by this court,
             was frequently litigated and widely accepted in 1969
          B. Since respondent's claims were not novel, he is
             bound by his procedural default
      II. The principles governing retroactivity suggest that
          novelty can never be "cause" justifying a procedural
          default
          A. Procedural rights made fully retroactive are by
             their nature not novel as applied to cases on
             collateral review
          B. A conviction should not be overturned on collateral
             attack on the basis of a claim that was novel at the
             time of trial
   Conclusion
   Appendix

   The standard for determining when an error that was not duly
objected to at trial or raised on direct appeal can nevertheless
support collateral relief is of substantial importance to the
administration of justice in the federal system.  The holding of the
court of appeals in this case -- that the constitutional infirmity of
a jury instruction was a "novel" conception six years before this
Court decided the issue, and that such novelty was sufficient cause to
excuse a failure to make timely objection -- if sustained by this
Court, would substantially increase the susceptibility of otherwise
final judgments in federal criminal cases to collateral attack.

                          QUESTION PRESENTED

   Whether respondent, a federal habeas petitioner, should be excused
from his procedural default in state court on the ground that the
constitutional claim he now wishes to assert -- based on Mullaney v.
Wilbur, 421 U.S. 684 (1975) -- was "novel" at the time his conviction
became final in 1969.

                     INTEREST OF THE UNITED STATES

   This case raises an important question concerning the availability
of federal habeas corpus relief when a defendant has failed to comply
with legitimate procedural rules requiring that claims be timely
raised or forfeited.  The Federal Rules of Criminal Procedure
expressly provide that certain types of claims must be raised before
or at trial.  See Fed. R. Crim. P. 12, 30;  see also Fed. R. Evid.
103(a)(1).  More generally, a criminal defendant's failure to make
timely objection at trial is frequently held to bar the claim,
although on direct appeal and appellate court may sometimes notice
plain error affecting substantial rights.  Fed. R. Crim. P. 52(b).
See, e.g., United States v. Indiviglio, 352 F.2d 276, 279-281 (2d Cir.
1965) (en banc), cert. denied, 383 U.S. 907 (1966).  Failure to take
an appeal or preserve a particular claim on appeal can also bar
subsequent litigation of the claim.  Sunal v. Large, 332 U.S. 174
(1947);  Norris v. United States, 687 F.2d 899 (7th Cir. 1982).

                               STATEMENT

   1. Respondent shot and killed his wife on November 1, 1968.  The
evidence at trial showed that respondent was then separated from his
wife and living in New York;  his wife was living at her mother's home
in Raleigh, North Carolina.  On November 2, respondent appeared with
his sister at the home in Raleigh.  They took respondent's wife and
two children to a shopping center, and on their return respondent and
his wife entered the house.  His wife's brother, Leon Young, testified
that he was outside at the time, and heard two shots.  Young ran to
the house and saw respondent come out, reload his gun, and shoot his
wife again.  According to Young, respondent's wife "'did not have a
weapon of any kind * * * .'" State v. Ross, 275 N.C. 550, 551, 169
S.E.2d 875, 876 (1969).  Young testified that respondent then "'ran to
his sister's car, said something about the hospital, and they drove
away.  I did not see any injuries on (respondent)'" (ibid.).  Young's
testimony was corroborated by Charles McAllister, who was in the house
at the time (ibid.).

   Respondent himself testified that after returning from the shopping
center he and his wife "had a conversation about a girl that I used to
mess around with" (J.A. 18).  As he was leaving the room, respondent
continued, his wife stabbed him in the back of the neck with "a knife,
fork, or something" that Young had handed to her (ibid.).  He then
turned around and shot her twice.  As he was leaving he fired another
shot at Young who, he testified, was approaching him "with some object
in his hand" (ibid.).  Respondent's sister corroborated his statement
"that he had a profusely bleeding wound on his neck" (169 S.E.2d at
877).

   The trial court instructed the jury that respondent had the burden
of proving self-defense (which would have exonerated him entirely) and
lack of malice (which would have affected the degree of the offense)
(Pet. App. 2;  J.A. 23-24).  The jury returned a verdict of guilty of
murder in the first degree, and recommended life imprisonment.  The
North Carolina Supreme Court affirmed the conviction on October 15,
1969.  State v. Ross, supra.

   2. Respondent did not object either at trial or on appeal to the
court's instruction on the burden of proof.  Subsequently, in Mullaney
v. Wilbur, 421 U.S. 684 (1975), this Court held that in a murder case
the prosecution must prove beyond a reasonable doubt that the
defendant did not act on sudden provocation or in the heat of passion.
 In Hankerson v. North Carolina, 432 U.S. 233 (1977), on direct review
of a conviction, the Court held that Mullaney applied retroactively to
a trial that took place in 1974.  Respondent then unsuccessfully
sought post-conviction relief in state court, relying on Mullaney and
Hankerson (Pet. Br. App. A3-A8).

   Thereafter, respondent began this proceeding under 28 U.S.C. 2254.
The district court held that it was barred from considering the
petition because the State itself would not permit post-conviction
consideration of claims not raised either at trial or on appeal (Pet.
App. 3).  The court of appeals dismissed respondent's appeal.  Ross v.
Reed, 660 F.2d 492 (4th Cir. 1981).  This Court vacated the judgment,
however, and remanded for further consideration in light of Engle v.
Isaac, 456 U.S. 107 (1982), and United States v. Frady, 456 U.S. 152
(1982).  Ross v. Reed, 456 U.S. 921 (1982).

   On remand the court of appeals reversed and directed that a writ of
habeas corpus issue unless respondent was retried within a reasonable
time (Pet. App. 9).  The court found that respondent's failure to
object to the burden of proof instruction either at trial or on direct
appeal was excused under the "cause and prejudice" rule applied in
Isaac and Frady.  The State itself conceded that the prejudice
requirement was satisfied, since both respondent and his sister gave
testimony suggesting that respondent had reacted to an attack on him
by his wife.  Under those circumstances, imposing the burden of
persuasion on respondent could have influenced the jury's verdict
(Pet. App. 5).

   The court also held that respondent had shown cause for his failure
to object, because the claim that he now asserts was too novel in 1969
for him to have anticipated.  Mullaney was not decided until 1975;
and even In re Winship, 397 U.S. 358 (1970) (prosecution must prove
every element of the offense beyond a reasonable doubt), was not
decided until five months after respondent's conviction had been
affirmed by the state supreme court (Pet. App. 2, 6).  In 1969, the
court stated, those decisions were only "foreshadowed by straws in the
wind" (id. at 7).  To require objection on direct appeal under those
circumstances, /1/ it concluded, would oblige counsel "to raise and
argue every conceivable constitutional claim, no matter how far
fetched, in order to preserve a right for post conviction relief upon
some future, unforeseen development in the law" (id. at 7-8).

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   This case presents the question whether a Section 2254 petitioner
who has failed to raise a constitutional claim at trial or on direct
appeal, and who therefore is barred from presenting the claim in state
court, has shown cause for his procedural default (see Wainwright v.
Sykes, 433 U.S. 72, 87 (1977)) on the basis that the claim was novel
at the time of his trial and direct appeal (see Engle v. Isaac, 456
U.S. at 131).  As a preliminary matter, we note several aspects of the
case that we do not address.

   First, although the orders dismissing respondent's state petition
for post-conviction review (Pet. Br. App. A3-A4) and subsequent
petition for a writ of certiorari (id. at A8) do not reveal the basis
for denial, we assume for the reasons given by petitioner (Pet. Br.
10-12) that the State enforced its procedural default rule in this
case.

   Second, we doubt that there is merit to respondent's suggestion
(Br. in Opp. 3) that the state supreme court abandoned its right to
rely on the state default rule by examining the charge to the jury for
plain error on its own initiative.  See State v. Ross, 275 N.C. at
554, 169 S.E.2d at 878.  The fact that an appellate court is willing
to engage in the commendable practice of examining a record for plain
error should not carry with it the penalty of opening the case up to
collateral attack on any issue the court may have overlooked.  See
also McLaughlin v. Gabriel, No. 83-1413 (1st Cir. Jan. 27, 1984), slip
op. 4-6.

                                   I

   A. Respondent's claim that the state has the burden of persuasion
on the issues of malice and self-defense was not novel in 1969.  The
great majority of state courts addressing those issues by 1969 had
already imposed that burden on the prosecution.  Though their
decisions were not explicity based on the Due Process Clause, their
views and reasons "reflect a profound judgment about the way in which
law should be enforced and justice administered." In re Winship, 397
U.S. at 361-362 (quoting Duncan v. Louisiana, 391 U.S. 145, 155
(1968)).  Federal cases during the same period, following the burden
of proof rule announced in Davis v. United States, 160 U.S. 469
(1895), regarded the government's burden of proof beyond a reasonable
doubt as so fundamental that it was a tenet of due process.
Considered collectively, these cases provided "the tools to construct
the() constitutional claim." Engle v. Isaac, 456 U.S. at 133.

   B. Given the weight of authority on the allocation of the burden of
proof by 1969, it is entirely proper that respondent should be bound
by his procedural default.  Engle holds that a habeas petitioner does
not establish cause simply by showing that the state court would in
all probability have rejected the claim.  456 U.S. at 130.  It also
holds that the inadvertence or neglect of counsel -- at least in cases
falling short of constitutionally ineffective assistance -- cannot
excuse a procedural default.

   These principles are applicable to a default on direct appeal (the
situation here) just as they are to defaults at trial.  A rule
requiring that issues be raised on direct appeal furthers the state's
interest in avoiding piecemeal review of convictions.  More important,
such a rule makes it possible to correct trial court errors promptly
enought to permit effective retrial.  Filing a Section 2254 action
after neglecting to present an important issue on direct appeal also
deprives the federal court of the benefit of the state court's views
on the record and issues of state law.

                                  II

   A. It is no accident that the issue decided in Mullaney and made
fully retroactive in Hankerson should not have been novel at the time
of respondent's trial and appeal.  In fact, the principles governing
retroactivity in themselves assure that procedural rights made fully
retroactive will not have been novel when cases now on collateral
review were tried.  Such rights, essential as they must be to the
truth-finding process at trial, are read into the Constitution
precisely because they are "implicit in the concept of ordered
liberty," and can therefore "be traced in our history, political and
legal." Palko v. Connecticut, 302 U.S. 319, 325, 327 (1937).
Retroactive application thus has "the justifiable effect of curing
errors committed in disregard of constitutional rulings already
clearly foreshadowed." Johnson v. New Jersey, 384 U.S. 719, 731
(1966).

   B. The unlikelihood that novelty can be demonstrated for any rights
made fully retroactive suggests that an inquiry into that issue will
be unproductive.  Moreover, the mass of materials relevant to a
decision, and the lack of any definite standard for deciding exactly
when a claim can last have been considered novel, provide further
reasons for avoiding such a burdensome and speculative inquiry unless
justice demands it.

   If one were to conclude that a habeas petitioner's claim was novel
at the time of his conviction, then it is difficult to see how its
violation could have rendered his trial "fundamentally unfair." Engle
v. Isaac, 456 U.S. at 131.  After all, the very idea of novelty
implies that the entire legal system at the time viewed the procedures
used to convict as constitutionally proper.  The rule adopted by the
court of appeals has the ironic effect of overturning convictions
obtained in compliance with contemporary standards at the time of
trial, while leaving intact those (later obtained) which violate the
standards applicable to the later trials.  This rather perverse
willingness to undo more ancient, rather than more recent, convictions
is precisely the opposite of the approach our legal system takes
toward newly discovered evidence.  Fed. R. Crim. P. 33.

                               ARGUMENT

   The issue in this case is similar to that decided in Engle v.
Isaac, 456 U.S. 107 (1982).  There the respondents, two of whom had
been convicted before this Court's decision in Mullaney v. Wilbur,
argued that they had shown cause for their failure to object to jury
instructions imposing on them the burden of proving self-defense,
because the constitutional objection validated in Mullaney was
"unknown at the time of trial." 456 U.S. at 131.  This Court stated
(456 U.S. at 131) (footnotes omitted):

         We need not decide whether the novelty of a constitutional
      claim ever establishes cause for a failure to object.  We might
      hesitate to adopt a rule that would require trial counsel either
      to exercise extraordinary vision or to object to every aspect of
      the proceedings in the hope that some aspect might mask a latent
      constitutional claim.  On the other hand, later discovery of a
      constitutional defect unknown at the time of trial does not
      invariably render the original trial fundamentally unfair.
      These concerns, however, need not detain us here since
      respondents' claims were far from unknown at the time of their
      trials.

                      * * * * *

         Where the basis of a constitutional claim is available, and
      other defense counsel have perceived and litigated that claim,
      the demands of comity and finality counsel against labeling
      alleged unawareness of the objection as cause for a procedural
      default.

   The respondents in Isaac were tried in 1975, and this Court held
(456 U.S. at 131) that by that by that date In re Winship, 397 U.S.
358 (1970), provided a "basis for their constitutional claim."
Respondent here was convicted, and his conviction was affirmed by the
state supreme court, in 1969.  The issues are thus:  (i) whether an
issue that was not novel in 1975 was so in 1969:  and if it was, (ii)
whether novelty establishes cause for respondent's failure to object
to the jury instructions on self-defense and malice.

   We view these issues of novelty and procedural default, as we must,
against the background of evolving substantive law and principles of
retroactivity.  For it is inevitable that this Court's willingness to
accept changes in constitutional doctrine concerning the rights of
criminal defendants, and its willingness to make new doctrine
retroactive, must both be affected by the perceived systemic costs of
such new doctrine, particularly decisions about how much respect to
accord legitimate procedural default rules.  A decision such as
Mullaney announcing a constitutional rule about the allocation of the
burden of proof has important consequences for future criminal trials.
 Making such a rule fully retroactive when the claim has been duly
considered but erroneously rejected by the lower courts, as Hankerson
states should be done, widens somewhat the circle of cases affected.
But the consequences of enlarging that circle further to encompass
past cases in which the issue was not even preserved are likely to be
a great deal more serious than this Court envisioned in Hankerson.
The Court there noted, addressing this very issue (432 U.S. at 244
n.8):

      (W)e are not persuaded that the impact on the administration of
      justice in those States that utilize the sort of burden-shifting
      presumptions involved in this case will be as devastating as
      (North Carolina) asserts.  If the validity of such
      burden-shifting presumptions were as well settled in the States
      that have them as (North Carolina) asserts, then it is unlikely
      that prior to Mullaney many defense lawyers made appropriate
      objections to jury instructions incorporating those
      presumptions.  Petitioner made non here.  The North Carolina
      Supreme Court passed on the validity of the instructions anyway.
       The States, if they wish, may be able to insulate past
      convictions by enforcing the normal and vlaid rule that failure
      to object to a jury instruction is a waiver of any claim of
      error.  See, e.g., Fed. Rule Crim. Proc. 30.

   If the Court should conclude in this case that such "normal and
valid rule(s)" insulate only the most recent convictions, it will have
expanded greatly the impact that fully retroactive decisions have on
the administration of criminal justice.

      I. RESPONDENT'S CONSTITUTIONAL CLAIM WAS NOT NOVEL IN 1969

 A. Respondent's Claim That The State Had The Burden Of Proof, Though
Not Yet Validated By This Court, Was Frequently Litigated And Widely
Accepted In 1969

   The court of appeals excused respondent's procedural default
because it concluded that in 1969 a claim that the prosecution had the
burden of proving malice and disproving self-defense was "novel,"
foreshadowed only by a "hint here and there voiced in other contexts"
(Pet. App. 7).  In fact, however, such claims were frequently
litigated in both state and federal courts, and by the time of
respondent's trial the majority of courts reaching the issue had held
instructions imposing the burden of persuasion on the defendant to be
improper.

   This Court recognized as much in Mullaney (421 U.S. at 693-696),
noting that the clear trend in the states since early in this century
had been away from the rule of Commonwealth v. York, 50 Mass. 93
(1845), which imposed on a defendant the burden of persuasion to
negate malice aforethought.  Our research reveals that as of 1969, at
least 19 states imposed the burden of persuasion on the prosecution to
establish malice;  /2/ only eight agreed with North Carolina's
requirement that a defendant shoulder the persuasion burden.  /3/ The
same is true with respect the burden of persuasion on self-defense.
/4/ At the time of respondent's trial no fewer than 23 states agreed
that the burden of persuasion rested on the state, and that a
defendant had at most the burden of producing some evidence on that
defense.  /5/ Five more required the defendant simply to raise a
reasonable doubt on that issue -- a requirement that differs in little
more than form from the majority rule.  /6/ Only 12 states (including
North Carolina) placed the persuasion burden on a defendant.  /7/

   To be sure, these state cases do not hold that allocation of the
persuasion burden to the prosecution is required by the Due Process
Clause of the Fourteenth Amendment.  But individually and collectively
they go far toward establishing that conclusion.  Considered singly,
many of them indicate that imposing the burden of proving malice and
disproving self-defense on the prosecution is demanded by
considerations of fairness fundamental to our system of justice /8/ --
the very standard Mullaney applied in deciding the constitutional
issue.  See 421 U.S. at 701 ("the traditional burden which our system
of criminal justice deems essential").  Taken together, the weight of
opinion expressed in these cases "'reflect(s) a profound judgment
about the way in which law should be enforced and justice
administered.'" In re Winship, 397 U.S. at 361-362, quoting Duncan v.
Louisiana, 391 U.S. at 155.  /9/

   The treatment of these issues in the federal courts lends still
more support to the conclusion that the point was far from novel by
the date of respondent's trial and appeal.  Several federal courts,
following the rule announced in Davis v. United States, 160 U.S. 469
(1895), regarded the requirement that the government prove all
elements of an offense beyond a reasonable doubt as so fundamental
that it was a tenet of due process.  /10/ And as this Court has
already recognized (Engle v. Isaac, 456 U.S. at 131-132 n.39), even
before Winship the Eighth Circuit had held that the Iowa practice of
requiring a defendant to prove the defense of alibi violated due
process.  Stump v. Bennett, 398 F.2d 111 (en banc), cert. denied, 393
U.S. 1001 (1968).  The court in Stump correctly observed:  "That an
oppressive shifting of the burden of proof to a criminal defendant
violates due process is not a new doctrine within constitutional law"
(398 F.2d at 122).  See also McLaughlin v. Gabriel, supra, slip op.
6-7.

 B. Since Respondent's Claims Were Not Novel, He Is Bound By His
Procedural Default

   Given the voluminous litigation prior to 1969 concerning the
placement of the burden of proof, novelty affords no just cause to
excuse respondent from his failure to raise the issue at trial or on
direct appeal.  We note, as an initial matter, the irrelevance of the
fact that respondent's attorney (rather than he himself) may have
borne the responsibility for recognizing and raising the point.  For
"the decision to assert or not to assert constitutional rights or
constitutionally based objections at trial is necessarily entrusted to
the defendant's attorney, who must make on-the-spot decisions at
virtually all stages of a criminal trial." Wainwright v. Sykes, 433
U.S. at 93 (Burger, C.J., concurring).  See also id. at 95 n.2
(Stevens, J., concurring).  /11/

   Neither can the decision about "cause" for respondent's procedural
default turn on the reasons (or lack of them) behind his counsel's
failure to raise the issue.  It can no longer be argued, after this
Court's decision in Engle v. Isaac, that the default is excused simply
because the state supreme court in all likelihood would have rejected
the claim -- as, indeed, it rejected a few years later the claim of
the defendant in Hankerson.  "(T)he futility of presenting an
objection to the state courts cannot alone constitute cause for a
failure to object at trail.  If a defendant perceives a constitutional
claim and believes it may find favor in the federal courts, he may not
bypass the state courts simply because he thinks they will be
unsympathetic to the claim." 456 U.S. at 130 (footnote omitted).  The
decision not to argue an issue under those circumstances is no
different from litigation judgments that counsel must make in every
case.  If a lawyer has several points to make at trial or on appeal,
any one of which might be dispositive, he will often refrain from
making others that are less promising on the theory that raising a
borderline claim may divert attention from or dilute the force of
other arguments he deems more likely to succeed.  See Jones v. Barnes,
No. 81-1794 (July 5, 1983), slip op. 6-9.  /12/

   Indeed, even if one assumes that counsel's inaction resulted from
inadvertence or negligence, there is not sufficient cause to excuse a
procedural default -- at least in situations falling short of
constitutionally ineffective assistance of counsel.  The possibility
that an attorney may make an error of judgment or overlook a
potentially meritorious claim is inherent in an adversary system, and
ordinarily even "erroneous" decision by counsel must be deemed
binding.  See Estelle v. Williams, 425 U.S. 501, 508 n.3, 512 (1976);
id. at 514-515 & nn.3, 4 (Powell, J., concurring).  Addressing this
very contention in Engle v. Isaac, 456 U.S. at 134, the Court
observed:

      We have long recognized * * * that the Constitution guarantees
      criminal defendants only a fair trial and a competent attorney.
      It does not insure that defense counsel will recognize and raise
      every conceivable constitutional claim.  Where the basis of a
      constitutional claim is available, and other defense counsel
      have perceived and litigated that claim, the demands of comity
      and finality counsel against labeling alleged unawareness of the
      objection as cause for a procedural default.

   These principles are not only inherent in an adversary system, but
warranted by "the demands of comity and finality" recognized in Engle
v. Isaac.  Enforcement of a contemporaneous objection rule, for
example, promotes a system in which both the prosecution and the trial
court have an opportunity to consider the wisdom of pursuing a
particular position.  If a defendant objects to the court's jury
instruction (either during a charge conference or immediately after
the jury is instructed), the court is afforded a chance to determine
whether to give (or if necessary to correct) a potentially erroneous
charge.  If the defendant objects to the admission of evidence he may
succeed in getting it excluded, or the prosecutor may reconsider his
proffer rather than risk reversal by either a state appellate court or
a federal habeas court.  If a questionable statement is made during
summation, a contemporaneous objection gives the trial court an
opportunity to cure any possible error by appropriately cautioning the
jury.

   If a defendant prevails on his objections, he may succeed as well
in securing an acquittal from the jury.  If he prevails and is
convicted, the timely objection will at least have reduced the number
of points to be reviewed on appeal.  And even if the objection is
denied, it will often serve the purpose of enabling the trial judge to
make a record on a claim when the recollection of the witnesses and
parties is freshest.  A reviewing court will thus have a better
opportunity to weigh the merits of a claim of error.  See Wainwright
v. Sykes, 433 U.S. at 88-89;  Henderson v. Kibbe, 431 U.S. 145, 154
(1977).  "Any procedural rule which encourages the result that (trial)
proceedings be as free of error as possible is thoroughly desirable,
and the contemporaneous-objection rule surely falls within this
classification." Wainwright v. Sykes, 443 U.S. at 90.

   Nor do we think that there is any reason for giving such respect to
state contemporaneous objection rules but ignoring this State's
"equivalent interests in discouraging procedural defaults during
appellate proceedings" (Pet. App. 4).  See note 1, supra.  In the
latter case the state has an obvious interest in avoiding piecemeal
review of convictions -- first on direct appeal, then later in a
state-court collateral attack.  More important, a rule that objections
must at least be raised on direct review makes it possible to correct
trial court errors promptly enough to permit effective retrial.  Here,
for example, direct review in the state supreme court was completed in
1969, within months of respondent's conviction.  It was not until 1977
that a collateral attack raising this issue was first brought in state
court.  Moreover, one who files a Section 2254 action after neglecting
to present an important issue on direct appeal deprives the federal
court of the benefit of the state court's views on the record and
issues of state law.  What the State in this case has done by excusing
a default at the trial level but enforcing it if the claim is not
raised on appeal is simply to adopt a more lenient procedural default
rule than it might have chosen.  That circumstance should hardly
entitle a federal habeas court to ignore the core interest that the
State does insist on protecting.  For these reasons the courts of
appeals have generally found little reason to distinguish between
defaults at trial and those on direct appeal.  /13/ This Court too has
found the preservation of a claim on direct appeal critical to its
availability on collateral attack.  Compare Sunal v. Large, 332 U.S.
174 (1947), with Davis v. United States, 417 U.S. 333, 345 (1974).

   There are, of course, cases where the "cause" requirement of
Wainwright v. Sykes will be satisfied.  If, for example, a defendant
is denied a fair opportunity to raise his claim in accordance with
applicable procedural rules (e.g., if the trial court refuses to
entertain objections to jury instructions), that contention would
still be available on collateral review, if preserved on direct
appeal.  /14/ In those circumstances the possibility of injustice is
plain, and the state's interest, if any, in generally enforcing unfair
or unreasonable procedural rules is plainly outweighed by the
defendant's right to a fair opportunity to raise his claims.  There
may well be other "exceptional circumstances" (Wainwright v. Sykes,
433 U.S. at 91 & n.14) that would satisfy the "cause" requirement.
But it is unnecessary to speculate as to what they might be since it
is clear that this case, like Engle v. Isaac, is not such an instance.

 II. THE PRINCIPLES GOVERNING RETROACTIVITY SUGGEST THAT NOVELTY CAN
NEVER BE "CAUSE" JUSTIFYING A PROCEDURAL DEFAULT

   In Part I we have argued that respondent's claim was not novel at
the time of his trial and direct appeal -- a point sufficient to
dispose of this case.  We believe, however, that it is possible to
state a clearer rule resolving not only this case, but also similar
problems that may arise in the future.  We argue below that the
principles governing retroacticity, which reflect the gradual
character of evolution of legal doctrine, assure that there will be
few, if any, constitutional claims that are "novel" as applied to
cases on collateral review.  Moreover, even if that is not so, we
further argue that novelty should never qualify as "cause" for a
procedural default.

   Whether the novelty of a constitutional claim can be cause for a
procedural default is an issue that arises only when this Court has
both upheld the claim on the merits and made it fully retroactive to
cases on collateral review.  The court of appeals here noted that
Mullaney v. Wilbur applied retroactively to cases tried in 1969, but
then held that the claim validated in Mullaney was too novel to be
perceived and litigated in such cases (Pet. App. 3, 5-7).  These two
conclusions are inconsistent.  Implicit in the notion of full
retroactivity is the idea that trials conducted in violation of the
retroactive rule were so defective when held that they must be done
over again (or simply nullified and not rerun).  But it is difficult
to imagine how a proceeding could be fatally flawed for a reason so
novel that it was inconceivable to the participants.

 A. Procedural Rights Made Fully Retroactive Are By Their Nature Not
Novel As Applied To Cases On Collateral Review

   1. Those newly recognized criminal procedural rights which this
Court has made fully retroactive have all been designed "to overcome
an aspect of the criminal trial that substantially impairs its
truth-finding function and so raises serious questions about the
accuracy of guilty verdicts in past trials * * * ." Hankerson v. North
Carolina, 432 U.S. at 243.  /15/ Of course "whether a constitutional
rule of criminal procedure does or does not enhance the reliability of
the fact-finding process at trial is necessarily a matter of degree."
Johnson v. New Jersey, 384 U.S. 719, 728-729 (1966);  Stovall v.
Denno, 388 U.S. 293, 297-299 (1967).  And where the effect of the old
rule has not been serious and substantial enough, a decision
supplanting it will not be made fully retroactive (ibid.).  But rights
that do have a sufficient impact on the determination of guilt are not
cut by this Court from whole cloth.  The allocation of the burden of
proof, for example (as we have shown above), is a matter that courts
trying and reviewing criminal cases had to consider on innumerable
occasions.  And though their decisions were not unanimous, many
reached the same conclusion ultimately validated by this Court.

   This inverse relationship between retroactivity and novelty is well
recognized.  It is typically expressed by noting that rights made
fully retroactive, because of their importance to truth-finding, have
had the sanction of history and tradition.  Rules that make a clear
break with precedent, on the other hand, however important they may be
for reasons unrelated to the determination of guilt, are limited to
prospective application or are retroactive only to cases pending on
direct review.  Thus,

      if the purposes of a new rule implicate decisively the basic
      truth-determining function of the criminal trial, then * * * the
      rule should be given full retroactive application, for the
      required constitutional procedure itself would then stand as a
      concrete embodiment of "the concept of ordered liberty." Palko
      v. Connecticut, 302 U.S. 319, 325 (1937).

   Williams v. United States, 401 U.S. 646, 666 (1971) (Marshall, J.,
concurring in part and dissenting in part).  Justice Harlan came to a
similar conclusion.  He would have denied full retroactivity to rules
of constitutional criminal procedure, with the exception of "those
procedures that * * * are 'implicit in the concept of ordered
liberty.'" Mackey v. United States, 401 U.S. 667, 693 (1971) (Harlan,
J., concurring and dissenting) (quoting Palko v. Connecticut, 302 U.S.
at 325).  See also Hankerson v. North Carolina, 432 U.S. at 248 n.2
(Powell, J. concurring).  But as Palko itself noted, rights "implicit
in the concept of ordered liberty" are "'rooted in the traditions and
conscience of our people'" and "can be traced in our history,
political and legal." 302 U.S. at 325, 327.  In short, retroactive
application has "the justifiable effect of curing errors committed in
disregard of constitutional rulings already clearly foreshadowed."
Johnson v. New Jersey, 384 U.S. at 731.

   By contrast, the Court's most recent treatment of retroactivity in
the criminal context notes that

      where the Court has expressly declared a rule of criminal
      procedure to be "a clear break with the past," * * * it almost
      invariably has gone on to find such a newly minted principle
      nonretroactive.  See United States v. Peltier, 422 U.S. 531,
      547, n.5 (1975) (Brennan, J., dissenting) (collecting cases).
      In this * * * type of case, the traits of the particular
      constitutional rule have been less critical than the Court's
      express threshold determination that the "'new' constitutional
      interpretatio(n) . . . so change(s) the law that prospectivity
      is arguably the proper course" * * * .

   United States v. Johnson, 457 U.S. 537, 549 (1982).  See also Tehan
v. United States ex. rel. Shott, 382 U.S. 406, 410-412, 417 (1966).
That observation, the Court held, "is not inconsistent with our
precedents giving complete retroactive effect to constitutional rules
whose purpose is to overcome an aspect of the criminal trial that
substantially impairs its truth-finding function" (457 U.S. at 562
n.21).  The reason, of course, is that those precedents were not
"newly minted" (id. at 549), but anticipated far in advance of this
Court's decisions.

   2. A brief review of the procedural rights this Court has held
fully retroactive substantiates these conclusions.  Such rights have
been essential to the integrity of the truth-finding process, have
been deemed implicit in the concepts of ordered liberty and
fundamental fairness, and have been clearly foreshadowed in the law's
earlier development.

   One class of such rights concerns the allocation and standard of
proof.  The former is the issue here and in Hankerson v. North
Carolina (holding Mullaney v. Wilbur retroactive).  The latter was at
issue in Ivan V. v. City of New York, 407 U.S. 203 (1972) (holding In
re Winship retroactive).  Each procedure is "a prime instrument for
reducing the risk of convictions resting on factual error." /16/ Each
is also considered "'essential for the protection of life and
liberty'" and required by notions of "'fundamental fairness.'" /17/
And for that reason it is not surprising that each was clearly
foreshadowed by earlier decisions of this and other courts.  /18/

   A second group of rights concerns the composition and unanimity of
juries.  /19/ The selection of a jury partial to capital punishment
"undermine(s) 'the very integrity of the . . . process' that decides
(a defendant's) fate(.)" /20/ Similarly, a nonunanimous six-person
jury "poses a * * * threat to the truth-determining process itself."
/21/ The former practice, the Court noted, ignores "basic requirements
of procedural fairness." /22/ The latter was a distinctly
idiosyncratic innovation whose invalidity "was distinctly
foreshadowed" by this Court's earlier decisions.  /23/

   A third class of rights made fully retroactive includes matters
crucial to the correct functioning of the trial process -- the right
of confrontation and the exclusion of involuntary confessions.  The
former right is denied when the prosecution introduces preliminary
hearing testimony of a witness it has not subpoenaed, or a
co-defendant's confession implicating the defendant -- practices that
"present() a serious risk that the issue of guilt or innocence may not
(be) reliably determined." /24/ The latter is ignored when the
voluntariness of confessions is left solely for the jury's
determination -- a practice that may "infect the jury's findings of
fact" concerning both voluntariness and guilt.  /25/ Both rights have
been characterized as among the "'fundamental principles of
constitutional liberty.'" /26/ And the Court's condemnations of these
practices applied retroactively because the decisions were "clearly
foreshadowed," /27/ or at least in conformity with the "orthodox
rule." /28/

   The fourth class of rights made fully retroactive by this Court
concerns the right to counsel, not only at trial, /29/ but also at the
pleading /30/ and sentencing stages.  /31/ It hardly needs to be said
that the right "relates to 'the very integrity of the fact-finding
process.'" /32/ And this Court's incorporation of it in the Fourteenth
Amendment rested on the recognition that it is "'implicit in the
concept of ordered liberty.'" /33/ It is true that Gideon v.
Wainwright, 372 U.S. 335 (1963), overruled a directly contrary
decision in Betts v. Brady, 316 U.S. 455 (1942).  But that is hardly
tantamount to an indication that the rule announced in Gideon was
"novel" in the sense relevant here, for as Gideon noted, "Betts was
"an anachronism when handed down'" (372 U.S. at 345).  /34/

 B. A Conviction Should Not Be Overturned On Collateral Attack On The
Basis Of A Claim That Was Novel At The Time Of Trial

   The procedural rights this Court has made fully retroactive have
not always been clearly foreshadowed since the time the Constitution
was adopted.  Compare Witherspoon v. Illinois, 391 U.S. 510 (1968),
with Logan v. United States, 144 U.S. 263, 298 (1892).  But a
demonstration to that effect is unnecessary, since the issue is only
whether a claim has been "perceived and litigated" (Engle v. Isaac,
456 U.S. at 134) as recently as the earliest conviction still subject
to collateral attack.  We have argued above that that standard will
almost always be satisfied in cases involving the various rights this
Court has held fully retroactive.

   There are, nevertheless, two further aspects of the issue which
strongly suggest that an inquiry into the novelty of constitutional
claims is not even worth undertaking.  The first is that such an
inquiry is both very time-consuming and standardless.  The second is
that its outcome may be irrelevant, since it is difficult to see how a
conviction can be "fundamentally unfair" (Engle v. Isaac, 456 U.S. at
131) for reasons so novel that the defendant could not have perceived
them at trial or on appeal.

   1. As the survey we present above (pages 9-12) indicates,
determining when a particular claim may last have been considered
novel can be an enormously time-consuming venture.  The kind of
evidence we have presented -- though quite sufficient for purposes of
resolving the question here -- is only a fragment of the materials one
might have to canvas for years earlier than 1969, or for rights less
frequently litigated than the burden of proving self-defense and
malice.  Relevant sources would include not only judicial decisions
directly in point, but also statutory materials from all the states,
views of commentators, and judicial and legislative determinations of
questions sufficiently analogous to afford "the tools to construct
(the) constitutional claim." Engle v. Isaac, 456 U.S. at 133.

   Moreover, even after all the relevant materials are collected, it
is still necessary to measure the novelty of a claim at any given date
against a standard that may be quite indefinite.  The only certain
standard would be to say that a claim is no longer novel once it has
been "perceived and litigated" (Engle v. Isaac, 456 U.S. at 134) in
any reported case.  If more widespread ferment is demanded, it will be
difficult to devise a verbal formula expressing the required quantum
of precedent, and impossible to assure that the minimum is
consistently applied to the various rights made fully retroactive.
The best that can be hoped for is that this Court will eventually
choose (for each right held fully retroactive) a certain year before
which such claims would have been considered novel.  Claimants
convicted prior to that year would then be assumed to have "cause" for
their procedural default, while those convicted later would not.

   We hardly need say that an inquiry so complex and undefined affords
only uncertain protection to the procedural default rules the "cause
and prejudice" requirement is designed to serve.  Wainwright v. Sykes,
433 U.S. at 86-91.  An undertaking so unproductive from the point of
view of the judicial system should not be launched unless there is
good reason to believe it necessary in justice to the convicted
defendants.  We have argued (pages 18-23) that it is not, because the
very notion of full retroactivity implies that a right is exceedingly
unlikely to have been truly novel when any cases now on collateral
review were tried.  But even if that were not so, we would still see
little point in deciding when a particular claim could last have been
considered novel, as we now explain.

   2. This Court noted in Engle v. Isaac, 456 U.S. at 131, that "later
discovery of a constitutional defect unknown at the time of trial does
not invariably render the original trial fundamentally unfair." The
relation between the fairness of a conviction and later-discovered
rights is generally accommodated by the principles of retroactivity.
/35/ Even in the case of rights held fully retroactive, however,
"(t)he failure of otherwise competent defense counsel to raise an
objection at trial is often a reliable indication that the defendant
was not denied fundamental fairness in the * * * proceedings." Rose v.
Lundy, 455 U.S. 509, 547 n.17 (1982) (Stevens, J., dissenting).  This
indication is no less reliable -- indeed it becomes compelling -- when
the reason for counsel's failure to object is not that he has
overlooked a visible flaw, but that he, the defendant, the
prosecution, and every court and legislature in the country view the
practice later held defective as in fact constitutionally proper.  Any
theory that would equate novelty with cause justifying a procedural
default must, in the end, explain why such a trial -- universally
viewed as fair at the time -- should be conducted anew.  /36/

   Now is that the only conundrum posed by equating novelty with
cause.  Our adversary system assumes, and quite properly, that a
defendant is bound by the tactical decisions made by his counsel.
That principle affords a convincing reason why collateral attack is
precluded by the failure to make a timely objection after a new
procedural right is recognized.  Yet the rule of novelty accepted by
the court of appeals has the ironic consequence of allowing collateral
review to one whose conviction was considered fair by contemporary
standards, yet denying it to one (later convicted) whose conviction
violated contemporary standards, though neither objected at trial or
on direct review.

   It would be odd to assert that such a difference in treatment is
required in the name of fairness.  And the irony is intensified by
several other considerations.  For example, Fed. R. Crim. P. 33
provides that "(a) motion for a new trial based on the ground of newly
discovered evidence may be made only before or within two years after
final judgment * * * ." Newly discovered evidence will often be more
suggestive of innocence than faulty procedures, later found to affect
the accuracy of fact-finding.  Yet the Rules show a greater
willingness to reopen more recent, rather than more ancient, trials.
Their approach rests on an awareness that after a certain time retrial
becomes practically impossible, and on a judgment that the slight
chance of finding a truly meritorious claim does not justify perpetual
reexamination of final convictions.  See Orfield, New Trial in Federal
Criminal Cases, 2 Vill. L. Rev. 293, 299-304 (1957).  Those
considerations are equally relevant here.

   Indeed, there may be even less reason to reopen convictions in
cases like this than there is where the evidence is false or
incomplete.  There is, after all, an anachronism about picking out a
particular procedure subsequently abandoned, and asserting that its
use tainted prior convictions.  That ignores the fact that the legal
process as a whole may also have changed in a number of other ways,
some of them offsetting.  For example, although the burden of
disproving self-defense may now be imposed on the prosecution, the
substantive law of self-defense may also have changed in ways less
favorable to the defendant.  See Perkins on Criminal Law 1009-1012 (2d
ed. 1969).  At the same time, a state may have adopted a rule
permitting conviction by a nonunanimous jury, see Apodaca v. Oregon,
406 U.S. 404 (1972), thereby cancelling some of the defendant's
advantage from a shift in the burden of proof.

   As we made clear above (pages 18-23), we do not believe that any of
the various rights this Court has made fully retroactive were in fact
novel at the time of any conviction still open to collateral attack.
But if we are mistaken in that belief we think, for the reasons just
reviewed, that an inquiry into novelty is nevertheless unwarranted.
As this Court stated in Hankerson v. North Carolina, 432 U.S. at 244
n.8, "The States, if they wish, may be able to insulate past
convictions by enforcing the normal and valid rule that failure to
object to a jury instruction is a waiver of any claim of error." And
this should be true even "(i)f the validity of * * * burden-shifting
presumptions were as well settled * * * as (North Carolina)
asserts(.)"

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   STEPHEN S. TROTT

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   JOHN H. GARVEY

      Assistant to the Solicitor General

   LOUIS M. FISCHER

      Attorney

   FEBRUARY 1984

   /1/ According to the State's petition, contemporaneous objection
was not required at trial, but was on direct appeal, in order to
preserve review of jury instructions (Pet. 3).

   /2/ See App. infra, 1a-2a.

   /3/ See App. infra, 3a.

   /4/ Though this Court has not held that the Constitution requires
the prosecution to negate a claim of self-defense, Mullaney also
recognized that the "majority rule" in the states imposed the burden
of persuasion on the prosecution (421 U.S. at 702 n.30).

   /5/ See App. infra, 4a-6a.

   /6/ See App. infra, 7a.

   /7/ See App. infra, 8a-9a.

   /8/ See, e.g., State v. Wilcox, 48 S.D. 289, 204 N.W. 369, 372
(1925), where, in overruling the former state practice requiring a
defendant to prove self-defense by a preponderance of the evidence,
the court observed that allocating only a production burden to a
defendant and requiring the prosecution to retain the burden of
persuasion "seems to us to be a more humane and reasonable rule." And
in Wright v. People, 4 Neb. 407, 409 (1876), the court said, in
adopting a rule requiring the prosecution to prove a defendant's
sanity:  "(W)e feel at liberty to adopt that rule which to our mind
seems, not only to be founded in reason, but, to conform to those
humane principles which underlie our system of criminal laws." The
rule in Wright was later relied on to allocate the burden of
persuasion concerning a claim of self-defense to the prosecution.
Gravely v. State, 38 Neb. 871, 57 N.W. 751, 752 (1894).  And an
opinion that was frequently cited in the late 19th and early 20th
centuries stated that "(i)t is a cardinal rule in criminal
prosecutions that the burden of proof rests upon the prosecutor."
Stokes v. People, 53 N.Y. 164, 181 (1873) (Rapallo, J., concurring).
In fact, the author viewed that rule to be so fundamental that he
believed an instruction shifting the burden of proof to a defendant
could never be harmless, because it was "so vital" (id. at 183).

   /9/ This is not to suggest that the potential connection between
these cases and the demands of the Constitution was not perceived.
For example, the initial draft of the ALI's Model Penal Code dealing
with the burden of proof required the prosecution to prove "each
element of (an) offense * * * beyond a reasonable doubt," save for
certain exceptional defenses "plainly require(d)" by statute.  Model
Penal Code Section 1.13(1) and (2)(b) (Tent. Draft No. 4, 1955).  And
the comments on that section state that "to impose a burden of
persuasion on defendants as to matters involved in their guilt or
innocence of an offense ought to be viewed as raising a more serious
issue of constitutionality than the mere imposition of a burden of
adducing evidence." Id. at page 113.  Though the draft went on to say
that "due process poses no impenetrable barrier to shifting the burden
of persuasion" if done under "conservative" limitations (ibid.), it
suffices for purposes of the question here that the issue was
recognized many years before respondent's trial, not that the result
in Mullaney was accepted.

   /10/ See Appendix infra, 10a.  Indeed, Winship itself expressed the
view that Davis's burden of proof rule had constitutional roots.  397
U.S. at 362-363.  But see Leland v. Oregon, 343 U.S. 790, 797 (1952).

   /11/ See also Estelle v. Williams, 425 U.S. 501, 508 n.3 (1976);
id. at 513-515 (Powell, J., concurring);  United States ex rel. Cruz
v. LaVallee, 448 F.2d 671, 679 (2d Cir. 1971), cert. denied, 406 U.S.
958 (1972).  See generally Sanders v. United States, 373 U.S. 1, 24-25
(1963) (Harlan, J., dissenting);  Friendly, Is Innocence Irrelevant?
Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142,
149-150 (1970).

   /12/ For these reasons, we do not share the court of appeals'
concern (Pet. App. 7) about the incremental effect of enforcing a
procedural default in cases like this on the defense counsel's choice
of issues to preserve at trial and on appeal.

   /13/ Forman v. Smith, 633 F.2d 634, 636-640 (2d Cir.), cert.
denied, 450 U.S. 1001 (1981);  Cole v. Stevenson, 620 F.2d 1055 (4th
Cir.), cert. denied, 449 U.S. 1004 (1980);  Huffman v. Wainwright, 651
F.2d 347, 350 (5th Cir. 1981);  Evans v. Maggio, 557 F.2d 430, 433-434
(5th Cir. 1977);  Ford v. Strickland, 696 F.2d 804, 816-817 (11th Cir.
1983).  Cf. Hubbard v. Jeffes, 653 F.2d 99, 101 n.2 (3d Cir. 1981);
Matias v. Oshiro, 683 F.2d 318, 321 & n.3 (9th Cir. 1982).  Contra,
Holcomb v. Murphy, 701 F.2d 1307, 1309-1311 (10th Cir. 1983).  For an
excellent discussion of the principles applicable to such cases, see
Norris v. United States, 687 F.2d 899, 901-904 (7th Cir. 1982)
(collateral attack on federal conviction).

   /14/ See White v. Estelle, 566 F.2d 500 (5th Cir. 1978).  Cf. Rose
v. Mitchell, 443 U.S. 545, 561, 563 (1979);  Stone v. Powell, 428 U.S.
465 (1976);  Reece v. Georgia, 350 U.S. 85 (1955);  Sunal v. Large,
332 U.S. 174, 182-183 (1947);  Boyd v. Mintz, 631 F.2d 247 (3d Cir.
1980).  See generally Dumont v. Estelle, 513 F.2d 793, 797 (5th Cir.
1975).  See also Pedrero v. Wainwright, 590 F.2d 1383 (5th Cir. 1979);
 Hill, The Forfeiture of Constitutional Rights in Criminal Cases, 78
Colum. L. Rev. 1050 (1978).

   /15/ The other class of decisions that have been made fully
retroactive embraces cases "ruling that a trial court lacked authority
to convict or punish a criminal defendant in the first place.  * * *
In such cases, the Court has relied less on the technique of
retroactive application than on the notion that the prior inconsistent
judgments or sentences were void ab initio." United States v. Johnson,
457 U.S. 537, 550 (1982).  Examples are Ashe v. Swenson, 397 U.S. 436,
437 n.1 (1970) (retroactive application of double jeopardy ruling in
Benton v. Maryland, 395 U.S. 784 (1969));  Moore v. Illinois, 408 U.S.
786, 800 (1972) (retroactive application of Eighth Amendment ruling in
Furman v. Georgia, 408 U.S. 238 (1972)).  See also Michigan v. Payne,
412 U.S. 47, 61-62 (1973).  But cf. Gosa v. Mayden, 413 U.S. 665
(1973).

   /16/ In re Winship, 397 U.S. at 363;  Hankerson, 432 U.S. at 241.

   /17/ In re Winship, 397 U.S. at 362, 363;  see also id. at 373 n.5
(Harlan, J., concurring);  Hankerson, 432 U.S. at 241.

   /18/ See In re Winship, 397 U.S. at 362-363;  see pages 9-12,

   supra.

   /19/ The former was the issue in Witherspoon v. Illinois, 391 U.S.
510 (1968) (declaring its own holding fully retroactive, id. at 523
n.22).  The latter was in question in Brown v. Louisiana, 447 U.S. 323
(1980) (holding Burch v. Louisiana, 441 U.S. 130 (1979), retroactive
to a case pending on direct review).

   /20/ Witherspoon, 391 U.S. at 523 n.22.

   /21/ Brown v. Louisiana, 447 U.S. at 334 (opinion of Brennan, J.).

   /22/ Witherspoon, 391 U.S. at 521 n.20.

   /23/ Brown v. Louisiana, 447 U.S. at 335-336 (opinion of Brennan,
J.);  see Burch v. Louisiana, 441 U.S. at 134-138.

   /24/ Roberts v. Russell, 392 U.S. 293, 295 (1968) (holding Bruton
v. United States, 391 U.S. 123 (1968), retroactive);  Berger v.
California, 393 U.S. 314 (1969) (holding Barber v. Page, 390 U.S. 719
(1968), retroactive to a case on direct appeal).

   /25/ Jackson v. Denno, 378 U.S. 368, 383 (1964), held retroactive
in McNerlin v. Denno, 378 U.S. 575 (1964).

   /26/ Bruton v. United States, 391 U.S. at 135;  Barber v. Page, 390
U.S. at 721 ("essential and fundamental requirement for * * * (a) fair
trial").  See Jackson v. Denno, 378 U.S. at 376-391.

   /27/ Berger v. California, 393 U.S. at 315.

   /28/ Jackson v. Denno, 378 U.S. at 378;  see id. at 411-423
(Appendix A to opinion of Black, J., dissenting in part and concurring
in part).  Bruton v. United States overruled the decision of this
Court in Delli Paoli v. United States, 352 U.S. 232 (1957).  But
"Delli Paoli (was) under attack from its inception and many courts * *
* in fact rejected it." Roberts v. Russell, 392 U.S. at 295;  see also
Bruton v. United States, 391 U.S. at 128-135 & nn.4, 8, 10.

   /29/ Gideon v. Wainwright, 372 U.S. 335 (1963), applied
retroactively in Pickelsimer v. Wainwright, 375 U.S. 2 (1963);  Berry
v. City of Cincinnati, 414 U.S. 29 (1973) (holding Argersinger v.
Hamlin, 407 U.S. 25 (1972), retroactive).

   /30/ Arsenault v. Massachusetts, 393 U.S. 5 (1968) (holding White
v. Maryland, 373 U.S. 59 (1963), retroactive).

   /31/ McConnell v. Rhay, 393 U.S. 2 (1968) (holding Mempa v. Rhay,
389 U.S. 128 (1967), retroactive).

   /32/ McConnell v. Rhay, 393 U.S. at 3 (quoting Linkletter v.
Walker, 381 U.S. 618, 639 (1965)).

   /33/ Gideon v. Wainwright, 372 U.S. at 342 (quoting Palko v.
Connecticut, 302 U.S. at 325).

   /34/ See also Argersinger v. Hamlin, 407 U.S. at 27 n.1 (noting
that 31 states already provided counsel to defendants charged with
crimes less serious than felonies).

   We note that deprivation of the right to counsel at trial, though
it would not have presented a novel issue even in pre-Gideon cases,
satisfies the "cause" prong of the cause-and-prejudice rule for a
different, and obvious, reason:  it makes little sense to hold an
unrepresented defendant bound by procedural default rules designed
with lawyers in mind.  See Kitchens v. Smith, 401 U.S. 847, 848 (1971)
("the right to be furnished counsel does not depend on a request").

   One other right which this Court has held fully retroactive, but
which fits none of the classes mentioned above, is the equal
protection guarantee of a right to appeal, including the provision of
a free transcript where that is a necessary condition to appeal.
Eskridge v. Washington Prison Board, 357 U.S. 214 (1958) (holding
Griffin v. Illinois, 351 U.S. 12 (1956), retroactive).  That is
obviously something that goes to the integrity of the
guilt-determination process, which is otherwise insulated from
appellate scrutiny.  See Linkletter v. Walker, 381 U.S. at 639 n.20.
Moreover, the practice required by Griffin was one already followed in
many states.  Griffin v. Illinois, 351 U.S. at 19.

   /35/ Those rights essential to the fairness of a conviction are
made fully retroactive.  Those that are not essential are not.
Compare the cases cited at pages 20-23, supra, with United States v.
Peltier, 422 U.S. 531 (1975) (Fourth Amendment rule of Almeida-Sanchez
v. United States, 413 U.S. 266 (1973), not to be applied
retroactively);  Daniel v. Louisiana, 420 U.S. 31 (1975)
(fair-cross-section rule for petit juries announced in Taylor v.
Louisiana, 419 U.S. 522 (1975), not to be applied retroactively);
Johnson v. New Jersey, 384 U.S. 719 (1966) (guidelines for custodial
interrogation established in Escobedo v. Illinois, 378 U.S. 478
(1964), and Miranda v. Arizona, 384 U.S. 436 (1966), not to be applied
retroactively);  Tehan v. United States ex rel. Shott, 382 U.S. 406
(1966) (rule forbidding adverse comment on defendant's failure to
testify, announced in Griffin v. California, 380 U.S. 609 (1965), not
to be applied retroactively);  Linkletter v. Walker, supra,
(exclusionary rule of Mapp v. Ohio, 367 U.S. 643 (1961), not to be
applied retroactively).

   /36/ Such a theory would also have to take account of the
countervailing considerations that weigh against a new trial.  As
Judge Friendly has pointed out:

      There is an inevitable attraction in the position that a person
      convicted of a serious crime should receive a new trial whenever
      a later decision of the highest court indicates that, with the
      benefit of hindsight, a different course should have been
      followed at his trial in any consequential respect.  Yet for
      courts to yield broadly to that attraction not only would cause
      "litigation in these criminal cases (to) be interminable" (Sunal
      v. Large,) 332 U.S. at 182 * * * , but, in the sole interest of
      those already convicted of crime, would drastically impair the
      ability of the Government to discharge the duty of protection
      which it owes to all its citizens.  * * * When a defendant who
      has been tried fairly in accordance with the law as it was
      understood at the time seeks judicial relief because of new
      light on a point of law affecting an aspect of his trial, his
      request must be balanced against the rightful claims of
      organized society as reflected in the penal laws.

   United States v. Sobell, 314 F.2d 314, 324-325 (2d Cir. 1963).

                               APPENDIX

   APPENDIX MATERIAL IS NOT AVAILABLE ON JURIS