# Fay v. Noia (372 U.S. 391)/Opinion of the Court

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* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Clark
United States Supreme Court
372 U.S. 391
Fay v. Noia
Argued: Jan. 7 and 8, 1963. --- Decided: March 18, 1963
This case presents important questions touching the federal habeas corpus jurisdiction, 28 U.S.C. § 2241 et seq., in its relation to state criminal justice. The narrow question is whether the respondent Noia may be granted federal habeas corpus relief from imprisonment under a New York conviction now admitted by the State to rest upon a confession obtained from him in violation of the Fourteenth Amendment, after he was denied state post-conviction relief because the coerced confession claim had been decided against him at the trial and Noia had allowed the time for a direct appeal to lapse without seeking review by a state appellate court.
Noia was convicted in 1942 with Santo Caminito and Frank Bonino in the County Court of Kings County, New York, of a felony murder in the shooting and killing of one Hammeroff during the commission of a robbery. The sole evidence against each defendant was his signed confession. Caminito and Bonino, but not Noia, appealed their convictions to the Appellate Division of the New York Supreme Court. These appeals were unsuccessful, but subsequent legal proceedings resulted in the releases of Caminito and Bonino on findings that their confessions had been coerced and their convictions therefore procured in violation of the Fourteenth Amendment. Although it has been stipulated that the coercive nature of Noia's confession was also established, the United States District Court for the Southern District of New York held in Noia's federal habeas corpus proceeding that because of his failure to appeal he must be denied relief under the provision of 28 U.S.C. § 2254 whereby 'An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State * * *.' 183 F.Supp. 222 (1960). The Court of Appeals for the Second Circuit reversed, one judge dissenting, and ordered that Noia's conviction be set aside and that he be discharged from custody unless given a new trial forthwith. 300 F.2d 345 (1962). The Court of Appeals questioned whether § 2254 barred relief on federal habeas corpus where the applicant had failed to exhaust state remedies no longer available to him at the time the habeas proceeding was commenced (here a direct appeal from the conviction), but held that in any event exceptional circumstances were present which excused compliance with the section. The court also rejected other arguments advanced in support of the proposition that the federal remedy was unavailable to Noia. The first was that the denial of state post-conviction coram nobis relief on the ground of Noia's failure to appeal barred habeas relief because such failure constituted an adequate and independent state ground of decision, such that this Court on direct review of the state coram nobis proceedings would have declined to adjudicate the federal questions presented. In rejecting this argument, the court-while expressing the view that '(j)ust as it would be an encroachment on the prerogatives of the state for the Supreme Court upon direct review to disregard the state ground, equally-if not more so-would it be a trespass against the state for a lower federal court, upon a petition for habeas corpus, to disregard the state ground in granting relief to the prisoner,' 300 F.2d at 359-held that the exceptional circumstances excusing compliance with § 2254 also established that Noia's failure to appeal was not a state procedural ground adequate to bar the federal habeas remedy: 'The coincidence of these factors: the undisputed violation of a significant constitutional right, the knowledge of this violation brought home to the federal court at the incipiency of the habeas corpus proceeding so forcibly that the state made no effort to contradict it, and the freedom the relator's codefendants now have by virtue of their vindications of the identical constitutional right leads us to conclude that the state procedural ground, that of a simple failure to appeal, reasonable enough to prevent federal judicial intervention in most cases, is in this particular case unreasonable and inadequate.' 300 F.2d, at 362. The second argument was that Noia's failure to appeal was to be deemed a waiver of his claim that he had been unconstitutionally convicted. The Court of Appeals rejected this argument on the ground that no waiver could be inferred in the circumstances. Id., at 351-352.
We granted certiorari. 369 U.S. 869, 82 S.Ct. 1140, 8 L.Ed.2d 274. We affirm the judgment of the Court of Appeals but reach that court's result by a different course of reasoning. We hold: (1) Federal courts have power under the federal habeas statute to grant relief despite the applicant's failure to have pursued a state remedy not available to him at the time he applies; the doctrine under which state procedural defaults are held to constitute an adequate and independent state law ground barring direct Supreme Court review is not to be extended to limit the power granted the federal courts under the federal habeas statute. (2) Noia's failure to appeal was not a failure to exhaust 'the remedies available in the courts of the State' as required by § 2254; that requirement refers only to a failure to exhaust state remedies still open to the applicant at the time he files his application for habeas corpus in the federal court. (3) Noia's failure to appeal cannot under the circumstances be deemed an intelligent and understanding waiver of his right to appeal such as to justify the withholding of federal habeas corpus relief.
The question has been much mooted under what circumstances, if any, the failure of a state prisoner to comply with a state procedural requirement, as a result of which the state courts decline to pass on the merits of his federal defense, bars subsequent resort to the federal courts for relief on habeas corpus. Plainly it is a question that has important implications for federal-state relations in the area of the administration of criminal justice. It cannot be answered without a preliminary inquiry into the historical development of the writ of habeas corpus.
We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in Anglo-American jurisprudence: 'the most celebrated writ in the English law.' 3 Blackstone Commentaries 129. It is 'a writ antecedent to statute, and throwing its root deep into the genius of our common law * * *. It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I.' Secretary of State for Home Affairs v. O'Brien, (1923) A.C. 603, 609 (H.L.). Received into our own law in the colonial period, given explicit recognition in the Federal Constitution, Art. I, § 9, cl. 2, incorporated in the first grant of federal court jurisdiction, Act of September 24, 1789, c. 20, § 14, 1 Stat. 81-82, habeas corpus was early confirmed by Chief Justice John Marshall to be a 'great constitutional privilege.' Ex parte Bollman and Swartwout, 4 Cranch 75, 95, 2 L.Ed. 554. Only two Terms ago this Court had occasion to reaffirm the high place of the writ in our jurisprudence: 'We repeat what has been so truly said of the federal writ: 'there is no higher duty than to maintain it unimpaired,' Bowen v. Johnston, 1939, 306 U.S. 19, 26, 59 S.Ct. 442, 446, 83 L.Ed. 455, and unsuspended, save only in the cases specified in our Constitution.' Smith v. Bennett, 365 U.S. 708, 713, 81 S.Ct. 895, 898, 6 L.Ed.2d 39.
These are not extravagant expressions. Behind them may be discerned the unceasing contest between personal liberty and government oppression. It is no accident that habeas corpus has time and again played a central role in national crises, wherein the claims of order and of liberty clash most acutely, not only in England in the seventeenth century, but also in America from our very beginnings, and today. Although in form the Great Writ is simply a mode of procedure, its history is inextricably intertwined with the growth of fundamental rights of personal liberty. For its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release. Thus there is nothing novel in the fact that today habeas corpus in the federal courts provides a mode for the redress of denials of due process of law. Vindication of due process is precisely its historic office. In 1593, for example, a bill was introduced in the House of Commons, which, after deploring the frequency of violations of 'the great Charter and auncient good Lawes and statutes of this realme,' provided:
'Fore remedy whereof be it enacted: That the provisions and prohibicions of the said great Charter and other Lawes in that behalfe made be dulie and inviolatelie observed. And that no person or persons be hereafter committed to prison but yt be by sufficient warrant and Authorities and by due course and proceedings in Lawe * * *.
'And that the Justice of anie the Queenes Majesties Courts of Recorde at the common Lawe maie awarde a writt of habeas Corpus for the deliverye of anye person so imprisoned * * *.'
Although it was not enacted, this bill accurately prefigured the union of the right to due process drawn from Magna Charta and the remedy of habeas corpus accomplished in the next century.
Of course standards of due process have evolved over the centuries. But the nature and purpose of habeas corpus have remained remarkably constant. History refutes the notion that until recently the writ was available only in a very narrow class of lawless imprisonments. For example, it is not true that at common law habeas corpus was exclusively designed as a remedy for executive detentions; it was early used by the great common-law courts to effect the release of persons detained by order of inferior courts. The principle that judicial as well as executive restraints may be intolerable received dramatic expression in Bushell's case, Vaughan, 135, 124 Eng.Rep. 1006, 6 Howell's State Trials 999 (1670). Bushell was one of the jurors in the trial, held before the Court of Oyer and Terminer at the Old Bailey, of William Penn and William Mead on charges of tumultuous assembly and other crimes. When the jury brought in a verdict of not guilty, the court ordered the jurors committed for contempt. Bushell sought habeas corpus, and the Court of Common Pleas, in a memorable opinion by Chief Justice Vaughan, ordered him discharged from custody. The case is by no means isolated, and when hebeas corpus practice was codified in the Habeas Corpus Act of 1679, 31 Car. II, c. 2, no distinction was made between executive and judicial detentions.
Nor is it true that at common law habeas corpus was available only to inquire into the jurisdiction, in a narrow sense, of the committing court. Bushell's case is again in point. Chief Justice Vaughan did not base his decision on the theory that the Court of Oyer and Terminer had no jurisdiction to commit persons for contempt, but on the plain denial of due process, violative of Magna Charta, of a court's imprisoning the jury because it disagreed with the verdict:
'* * * (W)hen a man is brought by Habeas Corpus to the Court, and upon retorn of it, it appears to the Court, That he was against Law imprison'd and detain'd, * * * he shall never be by the Act of the Court remanded to his unlawful imprisonment, for then the Court should do an act of Injustice in imprisoning him, de novo, against Law, whereas the great Charter is, Quod nullus libet homo imprisonetur nisi per legem terrae; This is the present case, and this was the case upon all the Presidents (precedents) produc'd and many more that might be produc'd, where upon Habeas Corpus, many have been discharg'd * * *.
'This appears plainly by many old Books, if the Reason of them be rightly taken, For insufficient causes are as no causes retorn'd; and to send a man back to Prison for no cause retorn'd, seems unworthy of a Court.' Vaughan, at 156, 124 Eng.Rep., at 1016, 9 Howell's State Trials, at 1023.
To the same effect, we read in Bacon's Abridgment:
'(I)f the commitment be against law, as being made by one who had no jurisdiction of the cause, or for a matter for which by law no man ought to be punished, the court are to discharge him * * *; and the commitment is liable to the same objection where the cause is so loosely set forth, that the court cannot adjudge whether it were a reasonable ground of imprisonment or not.'
Thus, at the time that the Suspension Clause was written into our Federal Constitution and the first Judiciary Act was passed conferring habeas corpus jurisdiction upon the federal judiciary, there was respectable common-law authority for the proposition that habeas was available to remedy any kind of governmental restraint contrary to fundamental law. In this connection it is significant that neither the Constitution nor the Judiciary Act anywhere defines the writ, although the Act does intimate, 1 Stat. 82, that its issuance is to be 'agreeable to the principles and usages of law;-the common law, presumably. We need not pause to consider whether it was the Framers' understanding that congressional refusal to permit the federal courts to accord the writ its full common-law scope as we have described it might constitute an unconstitutional suspension of the privilege of the writ. There have been some intimations of support for such a proposition in decisions of this Court. Thus Mr. Justice (later Chief Justice) Stone wrote for the Court that '(t)he use of the writ * * * as an incident of the federal judicial power is implicitly recognized by Article I, § 9, Cl. 2, of the Constitution.' McNally v. Hill, 293 U.S. 131, 135, 55 S.Ct. 24, 26, 79 L.Ed. 238. (Italics supplied.) To the same effect are the words of Chief Justice Chase in Ex parte Yerger, 8 Wall. 85, 95, 19 L.Ed. 332: 'The terms of this provision (the Suspension Clause) necessarily imply judicial action.' And see United States ex rel. Turner v. Williams, 194 U.S. 279, 295, 24 S.Ct. 719, 724, 48 L.Ed. 979 (concurring opinion). But at all events it would appear that the Constitution invites, if it does not compel, cf. Byrd v. Blue Ridge Rural Elec. Cooperative, 356 U.S. 525, 537, 78 S.Ct. 893, 900, 2 L.Ed.2d 953, a generous construction of the power of the federal courts to dispense the writ conformably with common-law practice.
The early decision of this Court in Ex parte Watkins, 3 Pet. 193, 7 L.Ed. 650, which held that the judgment of a federal court of competent jurisdiction could not be impeached on habeas, seems to have viewed the power more narrowly; see also Ex parte Kearney, 7 Wheat. 38, 5 L.Ed. 391. But Watkins may have been compelled by factors, affecting peculiarly the jurisdiction of this Court, which are not generally applicable to federal habeas corpus powers. It was plain from the decision in Marbury v. Madison, 1 Cranch 137, 174-175, 2 L.Ed. 60, which had narrowly construed the grant of original jurisdiction to the Supreme Court in Article III, that the Court would have the power to issue writs of habeas corpus only if such issuance could be deemed an exercise of appellate jurisdiction. Confronted with the question in Ex parte Bollman and Swartwout, 4 Cranch 75, 2 L.Ed. 554-like Watkins, a case of direct application to the Court for the writ-the Court held that the jurisdiction 'which the court is now asked to exercise is clearly appellate. It is the revision of a decision of an inferior court, by which a citizen has been committed to gaol.' 4 Cranch, at 100. This answer sufficed to enable the discharge of the petitioners, who had been committed (but not tried or convicted) for treason; but at the same time it virtually dictated the result in Watkins. The Court had no general jurisdiction of appeals from federal criminal judgments, see pp. 834-835, infra; if, therefore, the writ of habeas corpus was appellate in nature, its issuance to vacate such a judgment would have the effect of accomplishing indirectly what the Court had no power to do directly. This reasoning is prominent in Chief Justice Marshall's opinion for the Court in Watkins. See 3 Pet. at 203.
Strictly, then, Watkins is authority only as to this Court's power to issue the writ; the habeas jurisdiction of the other federal courts and judges, including the individual Justices of the Supreme Court, has generally been deemed original. In re Kaine, 14 How. 103, 14 L.Ed. 345; Ex parte Yerger, 8 Wall. 85, 101, 19 L.Ed. 332. But cf. Ex parte Clarke, 100 U.S. 399, 25 L.Ed. 715. But even as to this Court's power, the life of the principles advanced in Watkins was relatively brief. In Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872, again a case of direct application to this Court for the writ, the Court ordered the release of one duly convicted in a Federal Circuit Court. The trial judge, after initially imposing upon the defendant a sentence in excess of the legal maximum, had attempted to correct the error by resentencing him. The Court held this double-sentencing procedure unconstitutional, on the ground of double jeopardy, and while conceding that the Circuit Court had a general competence in criminal cases, reasoned that it had no jurisdiction to render a patently lawless judgment.
This marked a return to the common-law principle that restraints contrary to fundamental law, by whatever authority imposed, could be redressed by writ of habeas corpus. See also Ex parte Wells, 18 How. 307, 15 L.Ed. 421; Ex parte Parks, 93 U.S. 18, 21, 23 L.Ed. 787. The principle was clearly stated a few years after the Lange decision by Mr. Justice Bradley, writing for the Court in Ex parte Siebold, 100 U.S. 371, 376-377, 25 L.Ed. 717:
'* * * The validity of the judgments is assailed on the ground that the acts of Congress under which the indictments were found are unconstitutional. If this position is well taken, it affects the foundation of the whole proceedings. An unconstitutional law is void, and is as no law. An offence created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment. It is true, if no writ of error lies, the judgment may be final, in the sense that there may be no means of reversing it. But personal liberty is of so great moment in the eye of the law that the judgment of an inferior court affecting it is not deemed so conclusive but that * * * the question of the court's authority to try and imprison the party may be reviewed on habeas corpus * * *.'
The course of decisions of this Court from Lange and Siebold to the present makes plain that restraints contrary to our fundamental law, the Constitution, may be challenged on federal habeas corpus even though imposed pursuant to the conviction of a federal court of competent jurisdiction.
The same principles have consistently been applied in cases of state prisoners seeking habeas corpus in the federal courts, although the development of the law in this area was at first delayed for several reasons. The first Judiciary Act did not extend federal habeas to prisoners in state custody, Ex parte Dorr, 3 How. 103, 11 L.Ed. 514; and shortly after Congress removed this limitation in 1867, it withdrew from this Court jurisdiction of appeals from habeas decisions by the lower federal courts and did not restore it for almost 20 years. Moreover, it was not until this century that the Fourteenth Amendment was deemed to apply some of the safeguards of criminal procedure contained in the Bill of Rights to the States. Yet during the period of the withdrawal of the Supreme Court's jurisdiction of habeas appeals, the lower federal courts did not hesitate to discharge state prisoners whose convictions rested on unconstitutional statutes or had otherwise been obtained in derogation of constitutional rights. After its jurisdiction had been restored, this Court adhered to the pattern set by the lower federal courts and to the principles enunciated in Ex parte Siebold and the other federal-prisoner cases. More recently, further applications of the Fourteenth Amendment in state criminal proceedings have led the Court to find correspondingly more numerous occasions upon which federal habeas would lie.
Mr. Justice Holmes expressed the rationale behind such decisions in language that sums up virtually the whole history of the Great Writ:
'* * * (H)abeas corpus cuts through all forms and goes to the very tissue of the structure. It comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved opens the inquiry whether they have been more than an empty shell.
'The argument for the appellee in substance is that the trial was in a court of competent jurisdiction * * *. But * * * (w)hatever disagreement there may be as to the scope of the phrase 'due process of law,' there can be no doubt that it embraces the fundamental conception of a fair trial * * *. We are not speaking of mere disorder, or mere irregularities in procedure, but of a case where the processes of justice are actually subverted. In such a case, the Federal court has jurisdiction to issue the writ. The fact that the state court still has its general jurisdiction and is otherwise a competent court does not make it impossible to find that a jury has been subjected to intimidation in a particular case. The loss of jurisdiction is not general, but particular, and proceeds from the control of a hostile influence.'
We do not suggest that this Court has always followed an unwavering line in its conclusions as to the availability of the Great Writ. Our development of the law of federal habeas corpus has been attended, seemingly, with some backing and filling. E.g., Ex parte Parks, 93 U.S. 18, 23 L.Ed. 787; Ex parte Bigelow, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005; 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; Knewel v. Egan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036. Although the remedy extends to federal prisoners held in violation of federal law and not merely of the Federal Constitution, many cases have denied relief upon allegations merely of error of law and not of a substantial constitutional denial. E.g., Ex parte Parks, supra, 93 U.S. at 20 21; In re Wight, 134 U.S. 136, 148, 10 S.Ct. 487, 490, 33 L.Ed. 865; Harlan v. McGourin, 218 U.S. 442, 448, 31 S.Ct. 44, 47, 54 L.Ed. 1101; Eagles v. United States ex rel. Samuels, 329 U.S. 304, 67 S.Ct. 313, 91 L.Ed. 308. Such decisions are not however authorities against applications which invoke the historic office of the Great Writ to redress detentions in violation of fundamental law.
In some of the cases the denial of the remedy on jurisdictional grounds seems to have been chosen in preference to decision of the merits of constitutional claims felt to be tenuous. E.g., In re Moran, supra; Knewel v. Egan, supra; Goto v. Lane, 265 U.S. 393, 44 S.Ct. 525, 68 L.Ed. 1070; United States v. Valante, 264 U.S. 563, 44 S.Ct. 411, 68 L.Ed. 850. And doubtless a powerful influence against the allowance of the remedy to state prisoners flowed from the availablity of review of state criminal judgments in this Court as of right. See, e.g., Andrews v. Swartz, 156 U.S. 272, 276, 15 S.Ct. 389, 391, 39 L.Ed. 422. Before 1916 review of such judgments was not discretionary by writ of certiorari but of right by writ of error. The occasions on which the extraordinary remedy of habeas corpus was indispensable were therefore few, since the practice of the Court was to put the habeas corpus applicant to his writ of error. E.g., In re Frederich, 149 U.S. 70, 13 S.Ct. 793, 37 L.Ed. 653; Bergemann v. Backer, 157 U.S. 655, 15 S.Ct. 727, 39 L.Ed. 845. And when the Court had no general appellate jurisdiction of federal criminal judgments, which was the case until 1891, the writ was sparingly allowed for the reason stated by Chief Justice Marshall in Ex parte Watkins, supra. Thus, in Bigelow the Court said: 'No appeal or writ of error * * * lies to this court. The act of congress has made the judgment of that court (the Supreme Court of the District of Columbia) conclusive, as it had a right to do, and the defendant, having one review of his trial and judgment, has no special reason to complain.' 113 U.S. at 329, 5 S.Ct. at 543. The same view is apparent in Ex parte Parks, supra, 93 U.S. at 20-21; Ex parte Curtis, 106 U.S. 371, 375, 1 S.Ct. 381, 385, 27 L.Ed. 232. Cf. Harlan v. McGourin, supra, 218 U.S., at 448, 31 S.Ct., at 47.
Nevertheless, the possibly grudging scope given the Great Writ in such cases is overshadowed by the numerous and varied allegations which this Court has deemed cognizable on habeas, not only in the last decades, but continuously since the fetters of the Watkins decision were thrown off in Ex parte Lange. E.g., Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935, 29 L.Ed. 89 (Fifth Amendment grand jury right); In re Converse, 137 U.S. 624, 11 S.Ct. 191, 34 L.Ed. 796 (Due Process Clause of Fourteenth Amendment); Rogers v. Peck, 199 U.S. 425, 26 S.Ct. 87, 50 L.Ed. 256 (same); Felts v. Murphy, 201 U.S. 123, 26 S.Ct. 366, 50 L.Ed. 689 (same); Lott v. Pittman, 243 U.S. 588, 37 S.Ct. 473, 61 L.Ed. 915 (same); Callan v. Wilson, 127 U.S. 540, 557, 8 S.Ct. 1301, 1307, 32 L.Ed. 223 (constitutional right to jury trial in federal criminal cases); Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016 (same) (by implication); Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138 (Self-Incrimination Clause of Fifth Amendment); Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153 (double jeopardy); Andersen v. Treat, 172 U.S. 24, 19 S.Ct. 67, 43 L.Ed. 351 (Sixth Amendment right to counsel); and see decisions cited at notes 17, 20, and 21, supra.
And so, although almost 300 years have elapsed since Bushell's Case, changed conceptions of the kind of criminal proceedings so fundamentally defective as to make imprisonment pursuant to them constitutionally intolerable should not be allowed to obscure the basic continuity in the conception of the writ as the remedy for such imprisonments.
It now remains to consider this principle in the application to the present case. It was settled in Brown v. Allen, supra, that the use of a coerced confession in a state criminal trial could be challenged in a federal habeas corpus proceeding. Yet actually the principle had been foreshadowed much earlier-indeed, in the very first case in which this Court reversed a state conviction on the ground that coerced confessions had been used in evidence. 'That complaint is * * * of a wrong so fundamental that it made the whole proceeding a mere pretense of a trial and rendered the conviction and sentence wholly void. Moore v. Dempsey * * *. (A)nd the proceeding thus vitiated could be challenged in any appropriate manner.' Brown v. Mississippi, 297 U.S. 278, 286-287, 56 S.Ct. 461, 465, 80 L.Ed. 682. Under the conditions of modern society, Noia's imprisonment, under a conviction procured by a confession held by the Court of Appeals in Caminito v. Murphy to have been coerced, and which the State here concedes was obtained in violation of the Fourteenth Amendment, is no less intolerable than was Bushell's under the conditions of a very different society; and habeas corpus is no less the appropriate remedy.
But, it is argued, a different result is compelled by the exigencies of federalism, which played no role in Bushell's case.
We can appraise this argument only in light of the historical accommodation that has been worked out between the state and federal courts respecting the administration of federal habeas corpus. Our starting point is the Judiciary Act of February 5, 1867, c. 28, § 1, 14 Stat. 385-386, which first extended federal habeas corpus to state prisoners generally, and which survives, except for some changes in wording, in the present statutory codification. The original Act and the current provisions are set out in an Appendix at the end of this opinion, pp. 441-445. Although the Act of 1867, like its English and American predecessors, nowhere defines habeas corpus, its expansive language and imperative tone, viewed against the background of post-Civil War efforts in Congress to deal severely with the States of the former Confederacy, would seem to make inescapable the conclusion that Congress was enlarging the habeas remedy as previously understood, not only in extending its coverage to state prisoners, but also in making its procedures more efficacious. In 1867, Congress was anticipating resistance to its Reconstruction measures and planning the implementation of the post-war constitutional Amendments. Debated and enacted at the very peak of the Radical Republicans' power, see 2 Warren, The Supreme Court in United States History (1928), 455-497, the measure that became the Act of 1867 seems plainly to have been designed to furnish a method additional to and independent of direct Supreme Court review of state court decisions for the vindication of the new constitutional guarantees. Congress seems to have had no thought, thus, that a state prisoner should abide state court determination of his constitutional defense-the necessary predicate of direct review by this Court-before resorting to federal habeas corpus. Rather, a remedy almost in the nature of removal from the state to the federal courts of state prisoners' constitutional contentions seems to have been envisaged. See Ex parte Bridges, Fed.Cas.No.1,862, 2 Woods 428, 432 (Cir.Ct.N.D.Ga.1875); Ex parte McCready, Fed.Cas.No.8732, 1 Hughes 598 (Cir.Ct.E.D.Va.1874). Compare Rev.Stat., 1874, § 641 (providing for removal to Federal Circuit Court 'When any civil suit or criminal prosecution is commenced in any State court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the State * * * any right secured to him by any law providing for the equal civil rights of citizens of the United States'); Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667.
The elaborate provisions in the Act for taking testimony and trying the facts anew in habeas hearings lend support to this conclusion, as does the legislative history of House bill No. 605, which became, with slight changes, the Act of February 5, 1867. The bill was introduced in response to a resolution of the House on December 19, 1865, asking the Judiciary Committee to determine 'what legislation is necessary to enable the courts of the United States to enforce the freedom of the wives and children of soldiers of the United States * * * and also to enforce the liberty of all persons under the operation of the constitutional amendment abolishing slavery.' Cong. Globe, 39th Cong., 1st Sess. 87. The terms in which it was described by its proponent, Representative Lawrence of Ohio, leave little doubt of the breadth of its intended scope: 'the effect of * * * (bill No. 605) is to enlarge the privilege of the writ of hobeas (sic) corpus, and make the jurisdiction of the courts and judges of the United States coextensive with all the powers that can be conferred upon them. It is a bill of the largest liberty.' Cong.Globe, 39th Cong., 1st Sess. 4151 (1866). This Court, shortly after the passage of the Act, described it in equally broad terms: 'This legislation is of the most comprehensive character. It brings within the habeas corpus jurisdiction of every court and of every judge every possible case of privation of liberty contrary to the National Constitution, treaties, or laws. It is impossible to widen this jurisdiction.' Ex parte McCardle, 6 Wall. 318, 325 326, 18 L.Ed. 816.
In thus extending the habeas corpus power of the federal courts evidently to what was conceived to be its constitutional limit, the Act of February 5, 1867, clearly enough portended difficult problems concerning the relationship of the state and federal courts in the area of criminal administration. Such problems were not slow to mature. Only eight years after passage of the Act, Mr. Justice Bradley, sitting as Circuit Justice, held that a convicted state prisoner who had not sought any state appellate or collateral remedies could nevertheless win immediate release on federal habeas if he proved the unconstitutionality of his conviction; although the judgment was not final within the state court system, the federal court had the power to inquire into the legality of the prisoner's detention. Ex parte Bridges, supra. Accord, Ex parte McCready, supra. This holding flowed inexorably from the clear congressional policy of affording a federal forum for the determination of the federal claims of state criminal defendants, and it was explicitly approved by the full Court in Ex parte Royall, 117 U.S. 241, 253, 6 S.Ct. 734, 741, 29 L.Ed. 868, a case in which habeas had been sought in advance of trial. The Court held that even in such a case the federal courts had the power to discharge a state prisoner restrained in violation of the Federal Constitution, see 117 U.S., at 245, 250-251, 6 S.Ct., at 739-740, but that ordinarily the federal court should stay its hand on habeas pending completion of the state court proceedings. This qualification plainly stemmed from considerations of comity rather than power, and envisaged only the postponement, not the relinquishment, of federal habeas corpus jurisdiction, which had attached by reason of the allegedly unconstitutional detention and could not be ousted by what the state court might decide. As well stated in a later case:
'* * * While the federal courts have the power and may discharge the accused in advance of his trial, if he is restrained of his liberty in violation of the federal constitution or laws, * * * the practice of exercising such power before the question has been raised or determined in the state court is one which ought not to be encouraged. The party charged waives no defect of jurisdiction by submitting to a trial of his case upon the merits, and we think that comity demands that the state courts, under whose process he is held, and which are, equally with the federal courts, charged with the duty of protecting the accused in the enjoyment of his constitutional rights, should be appealed to in the first instance. Should such rights be denied, his remedy in the federal court will remain unimpaired.'
These decisions fashioned a doctrine of abstention, whereby full play would be allowed the States in the administration of their criminal justice without prejudice to federal rights enwoven in the state proceedings. Thus the Court has frequently held that application for a writ of habeas corpus should have been denied 'without prejudice to a renewal of the same after the accused had availed himself of such remedies as the laws of the state afforded * * *.' Minnesota v. Brundage, 180 U.S. 499, 500-501, 21 S.Ct. 455, 456, 45 L.Ed. 639. See also Ex parte Royall, supra, 117 U.S., at 254, 6 S.Ct., at 741. With refinements, this doctrine requiring the exhaustion of state remedies is now codified in 28 U.S.C. § 2254. But its rationale has not changed: 'it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation * * *. Solution was found in the doctrine of comity between courts, a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.' Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761. The rule of exhaustion 'is not one defining power but one which relates to the appropriate exercise of power.' Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455. Cf. Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3; Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541; Douglas v. Green, 363 U.S. 192, 80 S.Ct. 1048, 4 L.Ed.2d 1142.
The reasoning of Ex parte Royall and its progeny suggested that after the state courts had decided the federal question on the merits against the habeas petitioner, he could return to the federal court on habeas and there relitigate the question, else a rule of timing would become a rule circumscribing the power of the federal courts on habeas, in defiance of unmistakable congressional intent. And so this Court has consistently held, save only in Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969. In that case, the State Supreme Court had rejected on the merits petitioner's contention of mob domination at his trial, and this Court held that habeas would not lie because the State had afforded petitioner corrective process. However, the decision seems grounded not in any want of power, for the Court described the federal courts' habeas powers in the broadest terms, 237 U.S. at 330-331, 35 S.Ct., at 588, but rather in a narrow conception of due process in state criminal justice. The Court felt that so long as Frank had had an opportunity to challenge his conviction in some impartial tribunal, such as the State Supreme Court, he had been afforded the process he was constitutionally due.
The majority's position in Frank, however, was substantially repudiated in Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543, a case almost identical in all pertinent respects to Frank. Mr. Justice Holmes, writing for the Court in Moore (he had written the dissenting opinion in Frank), said: 'if in fact a trial is dominated by a mob so that there is an actual interference with the course of justice, there is a departure from due process of law; * * * (if) the State Courts failed to correct the wrong, * * * perfection in the machinery for correction * * * can (not) prevent this Court from securing to the petitioners their constitutional rights.' 261 U.S., at 90-91, 43 S.Ct., at 266. It was settled in Moore, restoring what evidently had been the assumption until Frank, see, e.g., Cook v. Hart, 146 U.S. 183, 194-195, 13 S.Ct. 40, 43-44, 36 L.Ed. 934; and cases cited in note 28, supra, that the state courts' view of the merits was not entitled to conclusive weight. We have not deviated from that position. Thus, we have left the weight to be given a particular state court adjudication of a federal claim later pressed on habeas substantially in the discretion of the Federal District Court: 'the state adjudication carries the weight that federal practice gives to the conclusion of a court * * * of last resort another jurisdiction on federal constitutional issues. It is not res judicata.' Brown v. Allen, supra, 344 U.S., at 458, 73 S.Ct., at 408 (opinion of Mr. Justice Reed). '* * * (N)o binding weight is to be attached to the State determination. The congressional requirement is greater. The State court cannot have the last say when it, though on fair consideration and what procedurally may be deemed fairness, may have misconceived a federal constitutional right.' 344 U.S., at 508, 73 S.Ct., at 446 (opinion of Mr. Justice Frankfurter). Even if the state court adjudication turns wholly on primary, historical facts, the Federal District Court has a broad power on habeas to hold an evidentiary hearing and determine the facts.
The breadth of the federal courts' power of independent adjudication on habeas corpus stems from the very nature of the writ, and conforms with the classic English practice. As put by Mr. Justice Holmes in his dissenting opinion in Frank v. Mangum, supra, 237 U.S., at 348, 35 S.Ct., at 595: 'If the petition discloses facts that amount to a loss of jurisdiction in the trial court, jurisdiction could not be restored by any decision above.' It is of the historical essence of habeas corpus that it lies to test proceedings so fundamentally lawless that imprisonment pursuant to them is not merely erroneous but void. Hence, the familiar principle that res judicata is inapplicable in habeas proceedings, see, e.g., Darr v. Burford, 339 U.S. 200, 214, 70 S.Ct. 587, 595, 94 L.Ed. 761; Salinger v. Loisel, 265 U.S. 224, 230, 44 S.Ct. 519, 521, 68 L.Ed. 989; Frank v. Mangum, 237 U.S. 309, 334, 35 S.Ct. 582, 589, 59 L.Ed. 969; Church, Habeas Corpus (1884), § 386, is really but an instance of the larger principle that void judgments may be collaterally impeached. Restatement, Judgments (1942), §§ 7, 11; Note, Res Judicata, 65 Harv.L.Rev. 818, 850 (1952). Cf. Windsor v. McVeigh, 93 U.S. 274, 282-283, 23 L.Ed. 914. So also, the traditional characterization of the writ of habeas corpus as an original (save perhaps when issued by this Court) civil remedy for the enforcement of the right to personal liberty, rather than as a stage of the state criminal proceedings or as an appeal therefrom, emphasizes the independence of the federal habeas proceedings from what has gone before. This is not to say that a state criminal judgment resting on a constitutional error is void for all purposes. But conventional notions of finality in criminal litigation cannot be permitted to defeat the manifest federal policy that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review.
Despite the Court's refusal to give binding weight to state court determinations of the merits in habeas, it has not infrequently suggested that where the state court declines to reach the merits because of a procedural default, the federal courts may be foreclosed from granting the relief sought on habeas corpus. But the Court's practice in this area has been far from uniform, and even greater divergency has characterized the practice of the lower federal courts.
For the present, however, it suffices to note that rarely, if ever, has the Court predicated its deference to state procedural rules on a want of power to entertain a habeas application where a procedural default was committed by the defendant in the state courts. Typically, the Court, like the District Court in the instant case, has approached the problem as an aspect of the rule requiring exhaustion of state remedies, which is not a rule distributing power as between the state and federal courts. See pp. 417-420, supra. That was the approach taken in the Spencer and Daniels decisions, the most emphatic in their statement of deference to state rules of procedure. The same considerations of comity that led the Court to refuse relief to one who had not yet availed himself of his state remedies likewise prompted the refusal of relief to one who had inexcusably failed to tender the federal questions to the state courts. Either situation poses a threat to the orderly administration of criminal justice that ought if possible to be averted. Whether in fact the conduct of a Spencer or a Daniels was inexcusable in this sense is beside the point, as is the arguable illogicality of turning a rule of timing into a doctrine of forfeitures. The point is that the Court, by relying upon a rule of discretion, avowedly flexible, Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541, yielding always to 'exceptional circumstances,' Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455, has refused to concede jurisdictional significance to the abortive state court proceeding.
We have reviewed the development of habeas corpus at some length because the question of the instant case has obvious importance to the proper accommodation of a great constitutional privilege and the requirements of the federal system. Our survey discloses nothing to suggest that the Federal District Court lacked the power to order Noia discharged because of a procedural forfeiture he may have incurred under state law. On the contrary, the nature of the writ at common law, the language and purpose of the Act of February 5, 1867, and the course of decisions in this Court extending over nearly a century are wholly irreconcilable with such a limitation. At the time the privilege of the writ was written into the Federal Constitution it was settled that the writ lay to test any restraint contrary to fundamental law, which in England stemmed ultimately from Magna Charta but in this country was embodied in the written Constitution. Congress in 1867 sought to provide a federal forum for state prisoners having constitutional defenses by extending the habeas corpus powers of the federal courts to their constitutional maximum. Obedient to this purpose, we have consistently held that federal court jurisdiction is conferred by the allegation of an unconstitutional restraint and is not defeated by anything that may occur in the state court proceedings. State procedural rules plainly must yield to this overriding federal policy.
A number of arguments are advanced against this conclusion. One, which concedes the breadth of federal habeas power, is that a state prisoner who forfeits his opportunity to vindicate federal defenses in the state court has been given all the process that is constitutionally due him, and hence is not restrained contrary to the Constitution. But this wholly misconceives the scope of due process of law, which comprehends not only the right to be heard but also a number of explicit procedural rights-for example, the right not to be convicted upon evidence which includes one's coerced confession-drawn from the Bill of Rights. As Mr. Justice Holmes explained in Moore v. Dempsey, see pp. 839-840, supra, a mob-dominated trial is no less a denial of due process because the State Supreme Court believed that the trial was actually a fair one. A fortiori, due process denied in the proceedings leading to conviction is not restored just because the state court declines to adjudicate the claimed denial on the merits.
A variant of this argument is that if the state court declines to entertain a federal defense because of a procedural default, then the prisoner's custody is actually due to the default rather than to the underlying constitutional infringement, so that he is not in custody in violation of federal law. But this ignores the important difference between rights and particular remedies. Cf. Douglas v. Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324; Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138; Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782. A defendant by committing a procedural default may be debarred from challenging his conviction in the state courts even on federal constitutional grounds. But a forfeiture of remedies does not legitimize the unconstitutional conduct by which his conviction was procured. Would Noia's failure to appeal have precluded him from bringing an action under the Civil Rights Acts against his inquisitors? The Act of February 5, 1867, like the Civil Rights Acts, was intended to furnish an independent, collateral remedy for certain privations of liberty. The conceptual difficulty of regarding a default as extinguishing the substantive right is increased where, as in Noia's case, the default forecloses extraordinary remedies. In what sense is Noia's custody not in violation of federal law simply because New York will not allow him to challenge it on coram nobis or on delayed appeal? But conceptual problems aside, it should be obvious that to turn the instant case on the meaning of 'custody in violation of the Constitution' is to reason in circles. The very question we face is how completely federal remedies fall with the state remedies; when we have answered this, we shall know in what sense custody may be rendered lawful by a supervening procedural default.
It is a familiar principle that this Court will decline to review state court judgments which rest on independent and adequate state grounds, notwithstanding the co-presence of federal grounds. See, e.g., N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Fox Film Corp. v. Muller, 296 U.S. 207, 56 S.Ct. 183, 80 L.Ed. 158. Section 25 of the Judiciary Act of 1789, c. 20, 1 Stat. 85-87, denied this Court power to base the reversal of a state court decision on any error other 'than such as * * * immediately respects * * * questions of validity or construction of the said (Federal) constitution, treaties, statutes, commissions, or authorities in dispute.' The deletion of the express restriction by the Judiciary Act of February 5, 1867, c. 28, § 2, 14 Stat. 386-387, did not enlarge this Court's power in that regard. Murdock v. Memphis, 20 Wall. 590, 22 L.Ed. 429. Murdock was a case involving state substantive grounds, but the principle is also applicable in cases involving procedural grounds. See, e.g., Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789; Davis v. Wechsler, 263 U.S. 22, 44 S.Ct. 13, 68 L.Ed. 143; Ward v. Board of County Comm'rs, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 761. Thus, a default such as Noia's, if deemed adequate and independent (a question on which we intimate no view), would cut off review by this Court of the state coram nobis proceeding in which the New York Court of Appeals refused him relief. It is contended that it follows from this that the remedy of federal habeas corpus is likewise cut off.
The fatal weakness of this contention is its failure to recognize that the adequate state-ground rule is a function of the limitations of appellate review. Most of the opinion in the Murdock case is devoted to demonstrating the Court's lack of jurisdiction on direct review to decide questions of state law in cases also raising federal questions. It followed from this holding that if the state question was dispositive of the case, the Court could not decide the federal question. The federal question was moot; nothing turned on its resolution. And so we have held that the adequate state-ground rule is a consequence of the Court's obligation to refrain from rendering advisory opinions or passing upon moot questions.
But while our appellate function is concerned only with the judgments or decrees of state courts, the habeas corpus jurisdiction of the lower federal courts is not so confined. The jurisdictional prerequisite is not the judgment of a state court but detention simpliciter. The entire course of decisions in this Court elaborating the rule of exhaustion of state remedies is wholly incompatible with the proposition that a state court judgment is required to confer federal habeas jurisdiction. And the broad power of the federal courts under 28 U.S.C. § 2243 summarily to hear the application and to 'determine the facts, and dispose of the matter as law and justice require,' is hardly characteristic of an appellate jurisdiction. Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him. Indeed, it has no other power; it cannot revise the state court judgment; it can act only on the body of the petitioner. In re Medley, Petitioner, 134 U.S. 160, 173, 10 S.Ct. 384, 388, 33 L.Ed. 835.
To be sure, this may not be the entire answer to the contention that the adequate state-ground principle should apply to the federal courts on habeas corpus as well as to the Supreme Court on direct review of state judgments. The Murdock decision may be supported not only by the factor of mootness, but in addition by certain characteristics of the federal system. The first question the Court had to decide in Murdock was whether it had the power to review state questions in cases also raising federal questions. It held that it did not, thus affirming the independence of the States in matters within the proper sphere of their lawmaking power from federal judicial interference. For the federal courts to refuse to give effect in habeas proceedings to state procedural defaults might conceivably have some effect upon the States' regulation of their criminal procedures. But the problem is crucially different from that posed in Murdock of the federal courts' deciding questions of substantive state law. In Noia's case the only relevant substantive law is federal-the Fourteenth Amendment. State law appears only in the procedural framework for adjudicating the substantive federal question. The paramount interest is federal. Cf. Dice v. Akron, C. & Y.R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398. That is not to say that the States have not a substantial interest in exacting compliance with their procedural rules from criminal defendants asserting federal defenses. Of course orderly criminal procedure is a desideratum, and of course there must be sanctions for the flouting of such procedure. But that state interest 'competes * * * against an ideal * * * (the) ideal of fair procedure.' Schaefer, Federalism and State Criminal Procedure, 70 Harv.L.Rev. 1, 5 (1956). And the only concrete impact the assumption of federal habeas jurisdiction in the face of a procedural default has on the state interest we have described, is that it prevents the State from closing off the convicted defendant's last opportunity to vindicate his constitutional rights, thereby punishing him for his default and deterring others who might commit similar defaults in the future.
Surely this state interest in an airtight system of forfeitures is of a different order from that, vindicated in Murdock, in the autonomy of state law within the proper sphere of its substantive regulation. The difference is illustrated in the settled principle that if a prisoner is detained lawfully under one count of the indictment, he cannot challenge the lawfulness of a second count on federal habeas. McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238. For the federal court to order the release of such a prisoner would be to nullify a proceeding-that under the first count-wholly outside the orbit of federal interest. Contrariwise the only count under which Noia was convicted and imprisoned is admitted to be vitiated by force of federal law.
Certainly this Court has differentiated the two situations in its application of the adequate state-ground rule. While it has deferred to state substantive grounds so long as they are not patently evasive of or discriminatory against federal rights, it has sometimes refused to defer to state procedural grounds only because they made burdensome the vindication of federal rights. That the Court nevertheless ordinarily gives effect to state procedural grounds may be attributed to considerations which are peculiar to the Court's role and function and have no relevance to habeas corpus proceedings in the Federal District Courts: the unfamiliarity of members of this Court with the minutiae of 50 States' procedures; the inappropriateness of crowding our docket with questions turning wholly on particular state procedures; the web of rules and statutes that circumscribes our appellate jurisdiction; and the inherent and historical limitations of such a jurisdiction.
A practical appraisal of the state interest here involved plainly does not justify the federal courts' enforcing on habeas corpus a doctrine of forfeitures under the guise of applying the adequate state-ground rule. We fully grant, see p. 438, infra, that the exigencies of federalism warrant a limitation whereby the federal judge has the discretion to deny relief to one who has deliberately sought to subvert or evade the orderly adjudication of his federal defenses in the state courts. Surely no stricter rule is a realistic necessity. A man under conviction for crime has an obvious inducement to do his very best to keep his state remedies open, and not stake his all on the outcome of a federal habeas proceeding which, in many respects, may be less advantageous to him than a state court proceeding. See Rogers v. Richmond, 365 U.S. 534, 547-548, 81 S.Ct. 735, 742-743, 5 L.Ed.2d 760. And if because of inadvertence or neglect he runs afoul of a state procedural requirement, and thereby forfeits his state remedies, appellate and collateral, as well as direct review thereof in this Court, those consequences should be sufficient to vindicate the State's valid interest in orderly procedure. Whatever residum of state interest there may be under such circumstances is manifestly insufficient in the face of the federal policy, drawn from the ancient principles of the writ of habeas corpus, embodied both in the Federal Constitution and in the habeas corpus provisions of the Judicial Code, and consistently upheld by this Court, of affording an effective remedy for restraints contrary to the Constitution. For these several reasons we reject as unsound in principle, as well as not supported by authority, the suggestion that the federal courts are without power to grant haneas relief to an applicant whose federal claims would not be heard on direct review in this Court because of a procedural default furnishing an adequate and independent ground of state decision.
What we have said substantially disposes of the further contention that 28 U.S.C. § 2254 embodies a doctrine of forfeitures and cuts off relief when there has been a failure to exhaust state remedies no longer available at the time habeas is sought. This contention is refuted by the language of the statute and by its history. It was enacted to codify the judicially evolved rule of exhaustion, particularly as formulated in Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572. See the review of the legislative history in Darr v. Burford, 339 U.S. 200, 211-213, 70 S.Ct. 587, 593-595, 94 L.Ed. 761. Nothing in the Hawk opinion points to past exhaustion. Very little support can be found in the long course of previous decisions by this Court elaborating the rule of exhaustion for the proposition that it was regarded at the time of the revision of the Judicial Code as jurisdictional rather than merely as a rule ordering the state and federal proceedings so as to eliminate unnecessary federal-state friction. There is thus no warrant for attributing to Congress, in the teeth of the language of § 2254, intent to work a radical innovation in the law of habeas corpus. We hold that § 2254 is limited in its application to failure to exhaust state remedies still open to the habeas applicant at the time he files his application in federal court. Parenthetically, we note that our holding in Irvin v. Dowd, 359 U.S. 394, 79 S.Ct. 825, 3 L.Ed.2d 900, is not inconsistent. Our holding there was that since the Indiana Supreme Court, Irvin v. State, 236 Ind. 384, 139 N.E.2d 898, had reached the merits of Irvin's federal claim, the District Court, 153 F.Supp. 531, was not barred by § 2254 from determining the merits of Irvin's constitutional contentions.
Noia timely sought and was denied certiorari here from the adverse decision of the New York Court of Appeals on his coram nobis application, and therefore the case does not necessarily draw in question the continued vitality of the holding in Darr v. Burford, supra, that a state prisoner must ordinarily seek certiorari in this Court as a precondition of applying for federal habeas corpus. But what we hold today necessarily overrules Darr v. Burford to the extent it may be thought to have barred a state prisoner from federal habeas relief if he had failed timely to seek certiorari in this Court from an adverse state decision. Furthermore, our decision today affects all procedural hurdles to the achievement of swift and imperative justice on habeas corpus, and because the hurdle erected by Darr v. Buford is unjustifiable under the principles we have expressed, even insofar as it may be deemed merely an aspect of the statutory requirement of present exhaustion, that decision in that respect also is hereby overruled.
The soundness of the decision was questioned from the beginning. See Pollock, Certiorari and Habeas Corpus, 42 J. of Crim.L. 356, 357-358, n. 15, 364 (1951). Section 2254 speaks only of 'remedies available in the courts of the State.' Nevertheless, the Court in Darr v. Burford put a gloss upon these words to include petitioning for certiorari in this Court, which is not the court of any State, among the remedies that an applicant must exhaust before proceeding in federal habeas corpus. It is true that before the enactment of § 2254 the Court had spoken of the obligation to seek review in this Court before applying for habeas. E.g., Baker v. Grice, 169 U.S. 284, 18 S.Ct. 323, 42 L.Ed. 748; Markuson v. Boucher, 175 U.S. 184, 20 S.Ct. 76, 44 L.Ed. 124. But that was at the time when review of state criminal judgments in this Court was by writ of error. Review here was thus a stage of the normal appellate process. The writ of certiorari, which today provides the usual mode of invoking this Court's appellate jurisdiction of state criminal judgments, 'is not a matter of right, but of sound judicial discretion, and will be granted only where there are special and important reasons therefor.' Supreme Court Rule 19(1). Review on certiorari therefore does not provide a normal appellate channel in any sense comparable to the writ of error.
It is also true that Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572, a decision cited in the Reviser's Note to § 2254, intimated in dictum that exhaustion might comprehend seeking certiorari here. 321 U.S., at 116-177, 64 S.Ct., at 449-450. But that passing reference cannot be exalted into an attribution to Congress of a design patently belied by the unequivocal statutory language.
The rationale of Darr v. Burford emphasized the values of comity between the state and federal courts, and assumed that these values would be realized by requiring a state criminal defendant to afford this Court an opportunity to pass upon state action before he might seek relief in federal habeas corpus. But the expectation has not been realized in experience. On the contrary the requirement of Darr v. Burford has proved only to be an unnecessarily burdensome step in the orderly processing of the federal claims of those convicted of state crimes. The goal of prompt and fair criminal justice has been impeded because in the overwhelming number of cases the applications for certiorari have been denied for failure to meet the standard of Rule 19. And the demands upon our time in the examination and decision of the large volume of petitions which fail to meet that test have unwarrantably taxed the resources of this Court. Indeed, it has happened that counsel on oral argument has confessed that the record was insufficient to justify our consideration of the case but that he had felt compelled to make the futile time-consuming application in order to qualify for proceeding in a Federal District Court on habeas corpus to make a proper record. Bullock v. South Carolina, 365 U.S. 292, 81 S.Ct. 686, 5 L.Ed.2d 570. And so in a number of cases the Court has apparently excused compliance with the requirement. See, e.g., Weston v. Sigler, 361 U.S. 37, 80 S.Ct. 141, 4 L.Ed.2d 111; Bailey v. Arkansas, 358 U.S. 869, 79 S.Ct. 101, 3 L.Ed.2d 101; Poret v. Sigler, 355 U.S. 60, 78 S.Ct. 144, 2 L.Ed.2d 107; Massey v. Moore, 348 U.S. 105, 75 S.Ct. 145, 99 L.Ed. 135. Cf. Thomas v. Arizona, 356 U.S. 390, 392, n. 1, 78 S.Ct. 885, 886, 2 L.Ed.2d 863. The same practice has sometimes been followed in the Federal District Courts. See Reitz, Federal Habeas Corpus: Postconviction Remedy for State Prisoners, 108 U. of PaL.Rev. 461, 499 (1960).
Moreover, comity does not demand that such a price in squandered judicial resources be paid; the needs of comity are adequately served in other ways. The requirement that the habeas petitioner exhaust state court remedies available to him when he applies for federal habeas corpus relief gives state courts the opportunity to pass upon and correct errors of federal law in the state prisoner's conviction. And the availability to the States of eventual review on certiorari of such decisions of lower federal courts as may grant relief is always open. Our function of making the ultimate accommodation between state criminal law enforcement and state prisoners' constitutional rights becomes more meaningful when grounded in the full and complete record which the lower federal courts on habeas corpus are in a position to provide.
Although we hold that the jurisdiction of the federal courts on habeas corpus is not affected by procedural defaults incurred by the applicant during the state court proceedings, we recognize a limited discretion in the federal judge to deny relief to an applicant under certain circumstances. Discretion is implicit in the statutory command that the judge, after granting the writ and holding a hearing of appropriate scope, 'dispose of the matter as law and justice require,' 28 U.S.C. § 2243; and discretion was the flexible concept employed by the federal courts in developing the exhaustion rule. Furthermore, habeas corpus has traditionally been regarded as governed by equitable principles. United States ex rel. Smith. v. Baldi, 344 U.S. 561, 573, 73 S.Ct. 391, 397, 97 L.Ed. 549 (dissenting opinion). Among them is the principle that a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks. Narrowly circumscribed, in conformity to the historical role of the writ of habeas corpus as an effective and imperative remedy for detentions contrary to fundamental law, the principle is unexceptionable. We therefore hold that the federal habeas judge may in his discretion deny relief to an applicant who has deliberately bypassed the orderly procedure of the state courts and in so doing has forfeited his state court remedies.
But we wish to make very clear that this grant of discretion is not to be interpreted as a permission to introduce legal fictions into federal habeas corpus. The classic definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461-'an intentional relinquishment or abandonment of a know right or privilege'-furnishes the controlling standard. If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits-though of course only after the federal court has satisfied itself, by holding a hearing or by some other means, of the facts bearing upon the applicant's default. Cf. Price v. Johnston, 334 U.S. 266, 291, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356. At all events we wish it clearly understood that the standard here put forth depends on the considered choice of the petitioner. Cf. Carnley v. Cochran, 369 U.S. 506, 513 517, 82 S.Ct. 884, 888-891, 8 L.Ed.2d 70; Moore v. Michigan, 355 U.S. 155, 162-165, 78 S.Ct. 191, 195-197, 2 L.Ed.2d 167. A choice made by counsel not participated in by the petitioner does not automatically bar relief. Nor does a state court's finding of waiver bar independent determination of the question by the federal courts on habeas, for waiver affecting federal rights is a federal question. E.g., Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367.
The application of the standard we have adumbrated to the facts of the instant case is not difficult. Under no reasonable view can the State's version of Noia's reason for not appealing support an inference of deliberate by-passing of the state court system. For Noia to have appealed in 1942 would have been to run a substantial risk of electrocution. His was the grisly choice whether to sit content with life imprisonment or to travel the uncertain avenue of appeal which, if successful, might well have led to a retrial and death sentence. See, e.g., Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288. He declined to play Russian roulette in this fashion. This was a choice by Noia not to appeal, but under the circumstances it cannot realistically be deemed a merely tactical or strategic litigation step, or in any way a deliberate circumvention of state procedures. This is not to say that in every case where a heavier penalty, even the death penalty, is a risk incurred by taking an appeal or otherwise foregoing a procedural right, waiver as we have defined it cannot be found. Each case must stand on its facts. In the instant case, the language of the judge in sentencing Noia, see note 3, supra, made the risk that Noia, if reconvicted, would be sentenced to death, palpable and indeed unusually acute.
It should be unnecessary to repeat what so often has been said and what so plainly is the case: that the availability of the Great Writ of habeas corpus in the federal courts for persons in the custody of the States offends no legitimate state interest in the enforcement of criminal justice or procedure. Our decision today swings open no prison gates. Today as always few indeed is the number of state prisoners who eventually win their freedom by means of federal habeas corpus. Those few who are ultimately successful are persons whom society has grievously wronged and for whom belated liberation is little enough compensation. Surely no fair-minded person will contend that those who have been deprived of their liberty without due process of law ought nevertheless to languish in prison. Noia, no less than his codefendants Caminito and Bonino, is conceded to have been the victim of unconstitutional state action. Noia's case stands on its own; but surely no just and humane legal system can tolerate a result whereby a Caminito and a Bonino are at liberty because their confessions were found to have been coerced yet a Noia, whose confession was also coerced, remains in jail for life. For such anomalies, such affronts to the conscience of a civilized society, habeas corpus is predestined by its historical role in the struggle for personal liberty to be the ultimate remedy. If the States withhold effective remedy, the federal courts have the power and the duty to provide it. Habeas corpus is one of the precious heritages of Anglo-American civilization. We do no more today than confirm its continuing efficacy.
Affirmed.
The Judiciary Act of February 5, 1867, c. 28, § 1, 14 Stat. 385-386:
'* * * (T)he several courts of the United States, and the several justices and judges of such courts, within their respective jurisdictions, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States; and it shall be lawful for such person so restrained of his or her liberty to apply to either of said justices or judges for a writ of habeas corpus, which application shall be in writing and verified by affidavit, and shall set forth the facts concerning the detention of the party applying, in whose custody he or she is detained, and by virtue of what claim or authority, if known; and the said justice or judge to whom such application shall be made shall forthwith award a writ of habeas corpus, unless it shall appear from the petition itself that the party is not deprived of his or her liberty in contravention of the constitution or laws of the United States. Said writ shall be directed to the person in whose custody the party is detained, who shall make return of said writ and bring the party before the judge who granted the writ, and certify the true cause of the detention of such person within three days thereafter, unless such person be detained beyond the distance of twenty miles; and if beyond the distance of twenty miles and not above one hundred miles, then within ten days; and if beyond the distance of one hundred miles, then within twenty days. And upon the return of the writ of habeas corpus a day shall be set for the hearing of the cause, not exceeding five days thereafter, unless the party petitioning shall request a longer time. The petitioner may deny any of the material facts set forth in the return, or may allege any fact to show that the detention is in contravention of the constitution or laws of the United States, which allegations or denials shall be made on oath. The said return may be amended by leave of the court or judge before or after the same is filed, as also may all suggestions made against it, that thereby the material facts may be ascertained. The said court or judge shall proceed in a summary way to determine the facts of the case, by hearing testimony and the arguments of the parties interested, and if it shall appear that the petitioner is deprived of his or her liberty in contravention of the constitution or laws of the United States, he or she shall forthwith be discharged and set at liberty. And if any person or persons to whom such writ of habeas corpus may be directed shall refuse to obey the same, or shall neglect or refuse to make return, or shall make a false return thereto, in addition to the remedies already given by law, he or they shall be deemed and taken to be guilty of a misdemeanor, and shall, on conviction before any court of competent jurisdiction, be punished by fine not exceeding one thousand dollars, and by imprisonment not exceeding one year, or by either, according to the nature and aggravation of the case. From the final decision of any judge, justice, or court, inferior to the circuit court, an appeal may be taken to the circuit court of the United States for the district in which said cause is heard, and from the judgment of said circuit court to the Supreme Court of the United States, on such terms and under such regulations and orders, as well for the custody and appearance of the person alleged to be restrained of his or her liberty, as for sending up to the appellate tribunal a transcript of the petition, writ of habeas corpus, return thereto, and other proceedings, as may be prescribed by the Supreme Court, or, in default of such, as the judge hearing said cause may prescribe; and pending such proceedings or appeal, and until final judgment be rendered therein, and after final judgment of discharge in the same, any proceeding against such person so alleged to be restrained of his or her liberty in any State court, or by or under the authority of any State, for any matter or thing so heard and determined, or in process of being heard and determined, under and by virtue of such writ of habeas corpus, shall be deemed null and void.' 28 U.S.C. § 2241:
'(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. * * *
'(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 * * *.'
'A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.
'The writ, or order to show cause shall be directed to the person having custody of the person detained. It shall be returned within three days unless for good cause additional time, not exceeding twenty days, is allowed.
'The person to whom the writ or order is directed shall make a return certifying the true cause of the detention.
'When the writ or order is returned a day shall be set for hearing, not more than five days after the return unless for good cause additional time is allowed.
'Unless the application for the writ and the return present only issues of law the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained.
'The applicant or the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts.
'The return and all suggestions made against it may be amended by leave of court, before or after being filed.
'The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.'
Mr. Justice CLARK, dissenting.

## Notes

* ↑ The Appellate Division of the New York Supreme Court and the New York Court of Appeals, on the direct appeals of Caminito and Bonino, affirmed the convictions. People v. Bonino, People v. Caminito, 265 App.Div. 960, 38 N.Y.S.2d 1019 (1942); 291 N.Y. 541, 50 N.E.2d 654 (1943). Certiorari was not sought here. Motions to reargue appeals in the New York Court of Appeals may be made at any time. Caminito filed motions for reargument in 1948 and 1954. The motions were denied. 297 N.Y. 882, 79 N.E.2d 277; 307 N.Y. 686, 120 N.E.2d 857; we denied certiorari from the second denial. 348 U.S. 839, 75 S.Ct. 46, 99 L.Ed. 662. Bonino filed a similar motion in 1947, which was denied, 296 N.Y. 1004, 73 N.E.2d 579. Certiorari was denied. 333 U.S. 849, 68 S.Ct. 654, 92 L.Ed. 1131. Caminito then sought federal habeas corpus in the District Court for the Northern District of New York. The application was denied. 127 F.Supp. 689 (1955). The Court of Appeals for the Second Circuit reversed, sustaining Caminito's claim that his confession had been procured in violation of the Fourteenth Amendment; he was directed to be discharged unless the State accorded him a new trial. United States ex rel. Caminito v. Murphy, 222 F.2d 698 (1955); certiorari was denied, 350 U.S. 896, 76 S.Ct. 155, 100 L.Ed. 788. After Caminito's success Bonino filed a motion for reargument of his appeal in the New York Court of Appeals. The motion was granted and his conviction was also set aside and a new trial ordered on the ground that his confession had been unconstitutionally procured. People v. Bonino, 1 N.Y.2d 752, 152 N.Y.S.2d 298, 135 N.E.2d 51 (1956). Both Caminito and Bonino are now at liberty. It was said by the District Court in the opinion denying Noia relief in federal habeas, 'Even though Bonino and Caminito still remain under indictment it is most highly improbable that they will ever be tried again since the State presented no evidence but the presently unavailable coercion (sic) confessions in 1942. The obtaining of new evidence would appear at this late date impossible.' 183 F.Supp., at 227, n. 6.
* ↑ The stipulation is as follows:
* ↑ After Caminito and Bonino were released, Noia, unable to employ the procedure of a motion for reargument since he had not appealed from his conviction, made an application to the sentencing court in the nature of coram nobis. The Kings County Court set aside his conviction. People v. Noia, 3 Misc.2d 447, 158 N.Y.S.2d 683 (1956). The Appellate Division of the Supreme Court reversed and reinstated the judgment of conviction, 4 A.D.2d 698, 163 N.Y.S.2d 796 (1957). The New York Court of Appeals affirmed the Appellate Division sub nom. People v. Caminito, 3 N.Y.2d 596, 170 N.Y.S.2d 799, 148 N.E.2d 139 (1958). The Court of Appeals held that '(Noia's) failure to pursue the usual and accepted appellate procedure to gain a review of the conviction does not entitle him later to utilize * * * coram nobis. * * * And this is so even though the asserted error or irregularity relates to a violation of constitutional right. * * *' 3
* ↑ E.g., Reitz, Federal Habeas Corpus: Impact of an Abortive State Proceeding, 74 Harv.L.Rev. 1315 (1961); Brennan, Federal Habeas Corpus and State Prisoners: An Exercise in Federalism, 7 Utah L.Rev. 423 (1961); Hart, Foreword, The Supreme Court, 1958 Term, 73 Harv.L.Rev. 84, 101-121 (1959).
* ↑ Habeas corpus has always had other functions besides inquiry into illegal detention with a view to an order releasing the petitioner. Blackstone names four: habeas corpus ad respondendum; ad satisfaciendum; ad prosequendum, testificandum, deliberandum; ad faciendum et recipiendum. 3 Commentaries 129-132. See, e.g., Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329; Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356. The present case, of course, concerns only the ad subjiciendum form.
* ↑ Church, Habeas Corpus (1884), §§ 38-45; Carpenter, Habeas Corpus in the Colonies, 8 Am.Hist.Rev. 18 (1902).
* ↑ 'The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.'
* ↑ See 1 Holdsworth, History of English Law (1927), 227-228; Chafee, The Most Important Human Right in the Constitution, 32 B.U.L.Rev. 143, 146-159 (1952).
* ↑ See Church, supra, note 6, § 40; Ex parte Bollman and Swartwout, supra (petition for habeas by alleged seditious co-conspirators of Aaron Burr); Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281 (presidential power to institute trial by military tribunal during Civil War); Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3 (habeas sought by German saboteurs sentenced to death by a secret military tribunal); Ex parte Endo, 323 U.S. 283, 65 S.Ct. 208, 89 L.Ed. 243 (power to hold loyal citizen of Japanese descent in relocation center in World War II challenged on habeas). All the significant statutory changes in the federal writ have been prompted by grave political crises. The first modification of the provisions of the Judiciary Act of 1789 was made in the Force Act of March 2, 1833, c. 57, § 7, 4 Stat. 634 635, in response to South Carolina's nullification ordinance. The Act provided that federal courts and judges could release from state custody persons who had been acting under federal authority. The Act of August 29, 1842, c. 257, 5 Stat. 539-540, which extended federal habeas to foreign nationals acting under authority of a foreign state, was prompted by British diplomatic protest following the trial of a Canadian soldier by a New York State court. See People v. McLeod, 25 Wend. 483 (N.Y.Sup.Ct.1841). The Act of February 5, 1867, c. 28, § 1, 14 Stat. 385-386, which extended federal habeas to state prisoners generally, was passed in anticipation of possible Southern recalcitrance toward Reconstruction legislation. See p. 415. That was the last important statutory change. See Rev.Stat., Stat., 1874, §§ 751 766; 28 U.S.C. §§ 451-466 1874, §§ 751-766; 28 U.S.C. §§ 451-466 (1958 ed.); Longsdorf, The Federal Habeas Corpus Acts Original and Amended, 13 F.R.D. 407 (1953).
* ↑ Quoted in Walker, The Constitutional and Legal Development of Habeas Corpus as the Writ of Liberty (1960), 44-45.
* ↑ 1 Holdsworth, supra, note 8, at 227. See, e.g., Dolphin v. Shutford (1542), reported in 2 Marsden, Select Pleas in the Court of Admiralty (1897), pp. xlvi-xlvii, discussed in Walker, supra, note 10, at 24 (King's Bench issued habeas to remove prisoner held pursuant to order of the Admiralty Court). See further Walker, supra, at 22-25. Of course the state courts are not inferior courts in any sense thought (at least by King's Bench) to be true of the Admiralty Court; the issuance of writs of habeas by the federal courts is, rather, an aspect of the supremacy of federal law. Brown v. Allen, 344 U.S. 433, 510, 73 S.Ct. 397, 448, 97 L.Ed. 469 (opinion of Mr. Justice Frankfurter).
* ↑ See, e.g., Crepps v. Durden, 2 Cowper 640, 98 Eng.Rep. 1283 (K.B.1777); Rex v. Collyer, Sayer 44, 96 Eng.Rep. 797 (K.B.1752); King v. Hawkins, Fort. 272, 92 Eng.Rep. 849 (K.B.1715); Ingersoll, History and Law of the Writ of Habeas Corpus (1849), 29-31.
* ↑ To be sure, the Act expressly excepts judicial detentions that have ripened into criminal convictions. But this exception was not intended to have the effect of denying the protection of habeas corpus for such persons in appropriate cases. Rather, such persons were excluded simply from the coverage of the Act and remitted to their common-law rights to habeas-as construed, for example, in Bushell's case-because the Act was designed to meet the problem of bail, which had principal relevance at the preconviction stage. See Brief of Paul A. Freund, Assigned Counsel, for Respondent, United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (No. 23, October Term 1951), pp. 31-32. Furthermore, the English statutes governing habeas have never been regarded as preempting common-law rights to the writ. Id., at 32; 11 Halsbury, Laws of England (3d ed. 1955), Crown Proceedings, p. 28, n. (u).
* ↑ Habeas Corpus (Bouvier ed., 1856), B 10. (Italics supplied.) See also 2 Hale, History of the Pleas of the Crown, 144: 'if it appear upon the return (to the writ of habeas corpus), that the party is wrongfully committed, or by one that hath not jurisdiction, or for a cause for which a man ought not to be imprisond, the privilege shall be allowd, and the person discharged from that imprisonment.' In Hale's Analysis of the Civil Part of the Law (4th ed.), 78 habeas corpus is described as a remedy to remove or avoid imprisonment 'without lawful or just cause,' and is elsewhere expressly linked with due process of law: 'here falls in all the learning upon the stat. of magna charta, and charta de foresta, which concerns THE LIBERTY OF THE SUBJECT; especially magna charta, cap. 29. and those other statutes that relate to the imprisonment of the subject without due process of law; as the learning of habeas corpus, and the returns thereupon * * *.' Id., at 31.
* ↑ '(H)aving established Federal courts Congress would be powerless to deny the privilege of the writ. Otherwise Article I, section 9 would be reduced to a dead letter.' Brief, supra, note 13, at 29. It is also pointed out there, id., at 28, that the withdrawal of the Supreme Court's jurisdiction of federal habeas appeals, which was upheld in Ex parte McCardle, 7 Wall. 506, 19 L.Ed. 264, did not affect the power of the lower federal courts to grant habeas.
* ↑ The present status of Watkins with respect to problems of our jurisdiction to issue the writ on original applications to this Court is not of course at issue in the instant case. See Oaks, The 'Original' Writ of Habeas Corpus in the Supreme Court, 1962 Supreme Court Review (Kurland ed.), 153. Cf. Ex parte Republic of Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014.
* ↑ E.g., Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877; Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676; Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935, 29 L.Ed. 89; In re Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658; Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849; Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223; In re Coy, 127 U.S. 731, 8 S.Ct. 1263, 32 L.Ed. 274; United States v. DeWalt, 128 U.S. 393, 9 S.Ct. 111, 32 L.Ed. 485; Nielsen, Petitioner, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118; In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149; Andersen v. Treat, 172 U.S. 24, 19 S.Ct. 67, 43 L.Ed. 351; Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016; In re Heff, 197 U.S. 488, 25 S.Ct. 506, 49 L.Ed. 848; Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153; Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138; Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455; Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392; Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302; Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268; Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309; United States v. Hayman, 342 U.S. 205, 212, 72 S.Ct. 263, 268, 96 L.Ed. 232.
* ↑ Act of March 27, 1868, c. 34, § 2, 15 Stat. 44; Act of March 3, 1885, c. 353, 23 Stat. 437. See Ex parte McCardle, 7 Wall. 506, 19 L.Ed. 264.
* ↑ E.g., Ex parte McCready, Fed.Cas.No. 8,732, 1 Hughes 598 (Cir.Ct.E.D.Va.1874); Ex parte Bridges, Fed.Cas.No. 1,862, 2 Woods 428 (Cir.Ct.N.D.Ga.1875); In re Wong Yung Quy, 6 Sawy. 237, 2 F. 624 (Cir.Ct.D.Cal.1880); In re Parrott, 6 Sawy. 349, 1 F. 481 (Cir.Ct.D.Cal.1880); In re Ah Lee, 6 Sawy. 410, 5 F. 899 (D.C.D.Ore.1880); In re Ah Chong, 6 Sawy. 451, 2 F. 733 (Cir.Ct.D.Cal.1880); Ex parte Houghton, 7 F. 657, 8 F. 897 (D.C.D.Vt.1881).
* ↑ E.g., Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868; Wo Lee v. Hopkins, decided with Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Medley, Petitioner, 134 U.S. 160, 10 S.Ct. 384, 33 L.Ed. 835; Savage, Petitioner, 134 U.S. 176, 10 S.Ct. 389, 33 L.Ed. 842; Minnesota v. Barber, 136 U.S. 313, 10 S.Ct. 862, 34 L.Ed. 455 (disapproved in Minnesota v. Brundage, 180 U.S. 499, 21 S.Ct. 455, 45 L.Ed. 639); Crowley v. Christensen, 137 U.S. 86, 11 S.Ct. 13, 34 L.Ed. 620; In re Converse, 137 U.S. 624, 11 S.Ct. 191, 34 L.Ed. 796; In re Rahrer, 140 U.S. 545, 11 S.Ct. 865, 35 L.Ed. 572; McElvaine v. Brush, 142 U.S. 155, 12 S.Ct. 156, 35 L.Ed. 971; Cook v. Hart, 146 U.S. 183, 13 S.Ct. 40, 36 L.Ed. 934; In re Frederich, 149 U.S. 70, 13 S.Ct. 793, 37 L.Ed. 653; Felts v. Murphy, 201 U.S. 123, 26 S.Ct. 366, 50 L.Ed. 689; Pettibone v. Nichols, 203 U.S. 192, 27 S.Ct. 111, 51 L.Ed. 148; Frank v. Mangum, 237 U.S. 309, 331, 35 S.Ct. 582, 588, 59 L.Ed. 969; Lott v. Pittman, 243 U.S. 588, 37 S.Ct. 473, 61 L.Ed. 915.
* ↑ E.g., Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791; House v. Mayo, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739; White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348; Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549; Massey v. Moore, 348 U.S. 105, 75 S.Ct. 145, 99 L.Ed. 135; Cicenia v. Lagay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523; United States ex rel. Jennings v. Ragen, 358 U.S. 276, 79 S.Ct. 321, 3 L.Ed.2d 296; Douglas v. Green, 363 U.S. 192, 80 S.Ct. 1048, 4 L.Ed.2d 1142; Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760; Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751.
* ↑ Frank v. Mangum, 237 U.S. 309, 346-347, 35 S.Ct. 582, 595, 59 L.Ed. 969 (dissenting opinion). The principles advanced by Mr. Justice Holmes in his dissenting opinion in Frank were later adopted by the Court in Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543, and have remained the law. See pp. 420-422, infra.
* ↑ Obviously in a case of such mere error the fact that this Court had no general appellate jurisdiction, note 26, infra, over federal criminal judgment argued with special power against granting relief on habeas.
* ↑ In Moran, the Court passed on the merits of one Fifth Amendment ground tendered by the petitioner but rejected the other whether petitioner's being compelled to walk up and down before the jury violated the Self-Incrimination Clause of the Fifth perfunctorily on the basis of lack of habeas jurisdiction to review errors not going to the jurisdiction of the convicting court. In Knewel the basis of the habeas petition was a claim of pleading deficiencies and improper venue under state law. Petitioner's assertion that his constitutional rights had been infringed was thus scarcely colorable. The allegations in Goto and Valante were similarly insubstantial.
* ↑ See Rev.Stat., 1874, § 709; Act of September 6, 1916, c. 448, § 2, 39 Stat. 726-727; 28 U.S.C. § 1257.
* ↑ See Act of March 3, 1891, c. 517, § 5, 26 Stat. 827. The review thus provided was by writ of error. This obligatory review was withdrawn by the Act of January 20, 1897, c. 68, 29 Stat. 492; see Frankfurter and Landis, The Business of the Supreme Court (1927), 109-113, although review as of right remained for capital cases until the Act of March 3, 1911, c. 231, §§ 128, 240, 36 Stat. 1133-1134, 1157. See 28 U.S.C. § 1254.
* ↑ In making provision for the trial of fact on habeas (something that had been left unmentioned in the previous statutes governing federal habeas corpus), the Act of 1867 seems to have restored rather than extended the common-law powers of the habeas judge. For it appears that the common-law doctrine of the incontrovertibility of the truth of the return was subject to numerous exceptions. Hurd, Habeas Corpus (2d ed. 1876), 271; Bacon, Abridgment, Habeas Corpus (Bouvier ed., 1856), B 11.
* ↑ Cook v. Hart, 146 U.S. 183, 194-195, 13 S.Ct. 40, 43-44, 36 L.Ed. 934; See, e.g., Ex parte Fonda, 117 U.S. 516, 6 S.Ct. 848, 29 L.Ed. 994; In re Wood, 140 U.S. 278, 11 S.Ct. 738, 35 L.Ed. 505; Pepke v. Cronan, 155 U.S. 100, 15 S.Ct. 34, 39 L.Ed. 84; In re Frederich, 149 U.S. 70, 13 S.Ct. 793, 37 L.Ed. 653; Whitten v. Tomlinson, 160 U.S. 231, 16 S.Ct. 297, 40 L.Ed. 406; Reid v. Jones, 187 U.S. 153, 23 S.Ct. 89, 47 L.Ed. 116; United States ex rel. Drury v. Lewis, 200 U.S. 1, 26 S.Ct. 229, 50 L.Ed. 343; Pettibone v. Nichols, 203 U.S. 192, 27 S.Ct. 111, 51 L.Ed. 148; Ex parte Simon, 208 U.S. 144, 28 S.Ct. 238, 52 L.Ed. 429; Johnson v. Hoy, 227 U.S. 245, 33 S.Ct. 240, 57 L.Ed. 497.
* ↑ 'An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
* ↑ See, e.g., Ex parte Hawk, 321 U.S. 114, 118, 64 S.Ct. 448, 450, 88 L.Ed. 572; Jennings v. Illinois, 342 U.S. 104, 109, 72 S.Ct. 123, 126, 96 L.Ed. 119; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549; Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948; Chessman v. Teets, 350 U.S. 3, 76 S.Ct. 34, 100 L.Ed. 4; Thomas v. Arizona, 356 U.S. 390, 78 S.Ct. 885, 2 L.Ed.2d 863; Hawk v. Olson, 326 U.S. 271, 276, 66 S.Ct. 116, 119, 90 L.Ed. 61 (dictum).
* ↑ See Brown v. Allen, 344 U.S. 443, 478, 73 S.Ct. 397, 418, 97 L.Ed. 469 (opinion of Mr. Justice Reed), 506, 73 S.Ct. 445 (opinion of Mr. Justice Frankfurter). We accompanied our denial of certiorari in Rogers v. Richmond, 357 U.S. 220, 78 S.Ct. 1365, 2 L.Ed.2d 1361, with an opinion in which we said: '* * * while the District Judge may, unless he finds a vital flaw in the State Court proceedings, accept the determination in such proceedings, he need not deem such determination binding, and may take testimony.' The Rogers case was ultimately decided on other grounds. 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760.
* ↑ Lord Herschell, in Cox v. Hakes, (1890) 15 A.C. 506, 527 528 (H.L.), described the English practice as follows: 'No Court was bound by the view taken by any other, or felt itself obliged to follow the law laid down by it. Each Court exercised its independent judgment upon the case, and determined for itself whether the return to the writ established that the detention of the applicant was in accordance with the law. A person detained in custody might thus proceed from court to court until he obtained his liberty. * * * I need not dwell upon the security which was thus afforded against any unlawful imprisonment. It is sufficient to say that no person could be detained in custody if any one of the tribunals having power to issue the writ of habeas corpus was of opinion that the custody was unlawful.' This practice has lately been changed by statute, Administration of Justice Act, 1960, 8 & 9 Eliz. II, c. 65, § 14(2).
* ↑ See note 16, supra.
* ↑ See In re Frederich, 149 U.S. 70, 75-76, 13 S.Ct. 793, 794-795, 37 L.Ed. 653; Ex parte Clarke, 100 U.S. 399, 25 L.Ed. 715; Ex parte Tom Tong, 108 U.S. 556, 2 S.Ct. 871, 27 L.Ed. 826; Kurtz v. Moffitt, 115 U.S. 487, 6 S.Ct. 148, 29 L.Ed. 458; Fisher v. Baker, 203 U.S. 174, 27 S.Ct. 135, 51 L.Ed. 142; Riddle v. Dyche, 262 U.S. 333, 43 S.Ct. 555, 67 L.Ed. 1009. '(T)he writ of habeas corpus is a new suit brought by the petitioner to enforce a civil right, which he claims as against those who are holding him in custody. The proceeding is one instituted by himself for his liberty, and not be the government to punish for his crime. The judicial proceeding, under it is not to inquire into the criminal act which is complained of, but into the right to liberty notwithstanding the act. It is not a proceeding in the original action.' 1 Bailey, Habeas Corpus and Special Remedies (1913), § 4.
* ↑ See In re Wood, 140 U.S. 278, 11 S.Ct. 738, 35 L.Ed. 505; Markuson v. Boucher, 175 U.S. 184, 20 S.Ct. 76, 44 L.Ed. 124; Davis v. Burke, 179 U.S. 399, 21 S.Ct. 210, 45 L.Ed. 249; In re Lincoln, 202 U.S. 178, 26 S.Ct. 602, 50 L.Ed. 984; Ex parte Spencer, 228 U.S. 652, 33 S.Ct. 709, 57 L.Ed. 1010; Goto v. Lane, 265 U.S. 393, 44 S.Ct. 525, 68 L.Ed. 1070; Frank v. Mangum, 237 U.S. 309, 343, 35 S.Ct. 582, 593, 59 L.Ed. 969; Jennings v. Illinois, 342 U.S. 104, 72 S.Ct. 123, 96 L.Ed. 119; Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761; Cicenia v. Lagay, 357 U.S. 504, 507-508, n. 2, 78 S.Ct. 1297, 1299, 2 L.Ed.2d 1523; Brown v. Allen, 344 U.S. 443, 503, 73 S.Ct. 397, 444, 97 L.Ed. 469 (opinion of Frankfurter, J.); Daniels v. Allen, decided with Brown v. Allen, supra, at 485-487, 73 S.Ct., at 421-422.
* ↑ Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543, is the most striking example of the Court's seeming refusal to give effect to a state procedural ground, though the Court's language is ambiguous. 261 U.S., at 91-92, 43 S.Ct., at 266-267.
* ↑ Compare, e.g., United States ex rel. Kozicky v. Fay, 248 F.2d 520 (C.A.2d Cir., 1957); Whitley v. Steiner, 293 F.2d 895 (C.A.4th Cir., 1961); United States ex rel. Stewart v. Ragen, 231 F.2d 312 (C.A.7th Cir., 1956); and United States ex rel. Dopkowski v. Randolph, 262 F.2d 10 (C.A.7th Cir., 1958), with, e.g., Ex parte Houghton, 7 F. 657, 664; Id., 8 F. 897, 903 (D.C.D.Vt.1881); Com. of Pennsylvania ex rel. Woods v. Cavell, 157 F.Supp. 272 (D.C.W.D.Pa.1957), aff'd mem., 254 F.2d 816 (C.A.3d Cir., 1958); Johns v. Overlade, 122 F.Supp. 921 (D.C.N.D.Ind.1953); Morrison v. Smyth, 273 F.2d 544, 547 (C.A.4th Cir., 1960); United States ex rel. Rooney v. Ragen, 158 F.2d 346, 352 (C.A.7th Cir., 1946).
* ↑ This argument derives no support from the statutory specification of 'custody,' 28 U.S.C. § 2241(c)(3). Of course custody in the sense of restraint of liberty is a prerequisite to habeas, for the only remedy that can be granted on habeas is some from of discharge from custody. McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238; In re Medley, Petitioner, 134 U.S. 160, 173-174, 10 S.Ct. 384, 388, 33 L.Ed. 835; Wales v. Whitney, 114 U.S. 564, 571, 5 S.Ct. 1050, 1053, 29 L.Ed. 277.
* ↑ See Irvin v. Dowd, 359 U.S. 394, 410, 412-413, 79 S.Ct. 825, 834, 835, 3 L.Ed.2d 900 (dissenting opinions); Hart, note 4, supra. Professor Hart seems to concede, however, that the conventional adequate state-ground rule would have to be modified to do service in habeas, 73 Harv.L.Rev., at 112, n. 81, and further opines that the Court has 'vacillated' in its application of the rule even in conventional situations. Id., at 116. It has been said by others also that the adequate stateground rule has not been clearly articulated or consistently applied by this Court. E.g., Note, 74 Harv.L.Rev. 1375, 1394 (1961); Comment, 61 Col.L.Rev. 255, 256, 277 (1961). In any event, no habeas decision has been found which expressly rests upon it. Thus, to apply the rule in habeas would be to set sail on quite uncharter seas.
* ↑ 'The reason (for the adequate stateground rule) is so obvious that it has rarely been thought to warrant statement. It is found in the partitioning of power between the state and federal judicial systems and in the limitations of our own jurisdiction. Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our 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.' Herb v. Pitcairn, 324 U.S. 117, 125-126, 65 S.Ct. 459, 463, 89 L.Ed. 789. See Note, note 39, supra, at 1379 and n. 32.
* ↑ See, e.g., Staub v. Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302; Williams v. Georgia, 349 U.S. 375, 389, 75 S.Ct. 814, 822, 99 L.Ed. 1161; New York Cent. R. Co. v. New York & Pa. Co., 271 U.S. 124, 46 S.Ct. 447, 70 L.Ed. 865; Davis v. Wechsler, 263 U.S. 22, 44 S.Ct. 13, 68 L.Ed. 143; Carter v. Texas, 177 U.S. 442; Note, 74 Harv.L.Rev. 1375, 1388-1391 (1961); Comment, 61 Col.L.Rev. 255 (1961). 'Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.' Davis v. Wechsler, supra, at 24, 44 S.Ct. at 14 (Mr. Justice Holmes.)
* ↑ See note 29, supra. Plainly, the words of § 2254 favor a construction limited to presently available remedies. Reitz, supra, n. 4, at 1365. The only two decisions of this Court prior to 1948 in which past exhaustion was strongly suggested were Ex parte Spencer, 228 U.S. 652, 33 S.Ct. 709, 57 L.Ed. 1010 and Frank v. Mangum, 237 U.S. 309, 343, 35 S.Ct. 582, 593, 59 L.Ed. 969. The latter, of course, was substantially overruled in Moore v. Dempsey, the language of which does not support a notion of forfeitures. See note 36, supra. On the other hand, Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, is typical of decisions plainly implying a rule limited to presently available remedies: 'before this Court is asked to issue a writ of habeas corpus, in the case of a person held under a state commitment, recourse should be had to whatever judicial remedy afforded by the state may still remain open. * * *
* ↑ By thus stating the rule, we do not mean to disturb the settled principles governing its application in cases of presently available state remedies. See, e.g., Brown v. Allen, 344 U.S. 443, 477-450, 73 S.Ct. 397, 402-403, 97 L.Ed. 469.
* ↑ To the extent that any decisions of this Court may be read to suggest a standard of discretion in federal habeas corpus proceedings different from what we lay down today, such decisions shall be deemed overruled to the extent of any inconsistency.
* ↑ A study in 1958 by the Administrative Office of the United States Courts revealed that in the preceding nine years, a total of 24 federal habeas corpus petitioners had won release from state penitentiaries. It should be borne in mind that the typical order of the District Court in such circumstances is a conditional release, permitting the State to rearrest and retry the petitioner without actually discharging him from custody. But the study does not show what number were successfully retried or reconvicted by the state authorities. Report No. 2228 on Habeas Corpus of the Senate Committee on the Judiciary, 85th Cong., 2d Sess. 28. The informativeness of this study has been questioned. Reitz, Federal Habeas Corpus: Postconviction Remedy for State Prisoners, 108 U. of Pa.L.Rev. 461, 479 and n. 98 (1960). Professor Reitz, from his study of reported opinions, suggests that at least 39 habeas petitioners were successful in the 10 years preceding 1960, at least some of whom (it is not known how many), however, were later retried and reconvicted. Id., at 481.
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