# Case v. Nebraska/Concurrence Brennan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Clark Brennan
United States Supreme Court
381 U.S. 336
Case v. Nebraska
Argued: April 28, 1965. --- Decided: May 24, 1965
Mr. Justice BRENNAN, concurring.
The petitioner entered his plea of guilty on April 18, 1963, one month after this Court's decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, holding the Sixth Amendment guarantee of counsel applicable to state prosecutions by virtue of the Fourteenth Amendment. The Nebraska Supreme Court followed prior Nebraska decisions in holding that, in a habeas corpus action brought by a convicted prisoner, judicial inquiry is limited to the jurisdiction of the convicting court over the offense and over the person of the accused, and to the question whether the sentence imposed was within the power of the court. The State conceded in its response to the petition for certiorari that habeas corpus was unavailable to hear petitioner's claim and that petitioner had no other remedy in the state courts.
On oral argument, counsel appointed for petitioner, see 379 U.S. 995, 85 S.Ct. 722, conceded the relevancy of the new Nebraska postconviction procedure, but contended that petitioner was nevertheless entitled to a declaration that he had been unconstitutionally denied a hearing by the Nebraska courts, and to a reversal of the judgment of the Nebraska Supreme Court and a mandate directing that by some procedure the petitioner's claim be adequately adjudicated.
Petitioner concedes that the Court's practice has been to remit prisoners to their federal habeas corpus remedy. See, e.g., Jennings v. Illinois, 342 U.S. 104, 72 S.Ct. 123, 96 L.Ed. 119. But he contends that substituting federal for state corrective process, instead of directing the State itself to meet its obligation, is a disservice to sound principles of federalism. He points to the vast increase in the number of federal habeas corpus applications by state prisoners as evidence that lack of adequate state procedures has put an intolerable strain on the federal writ and has brought about mounting friction between state and federal courts. See Henry v. State of Mississippi, 379 U.S. 443, 453, 85 S.Ct. 564, 570. In short, he contends that if the evolution in the coverage of the Fourteenth Amendment and in the scope of federal habeas corpus, see Fay v. Noia 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, is not to pull the federal judiciary increasingly into state criminal administration, the States must provide broader procedures more hospitable to federal constitutional claims.
The desirability of minimizing the necessity for resort by state prisoners to federal habeas corpus is not to be denied. Our federal system entrusts the States with primary responsibility for the administration of their criminal laws. The Fourteenth Amendment and the Supremacy Clause make requirements of fair and just procedures an integral part of those laws, and state procedures should ideally include adequate administration of these guarantees as well. If, by effective processes the States assumed this burden, the exhaustion requirement of 28 U.S.C. § 2254 (1958 ed.) would clearly promote state primacy in the implementation of these guarantees. Of greater importance, it would assure not only that meritorious claims would generally be vindicated without any need for federal court intervention, but that nonmeritorious claims would be fully ventilated, making easier the task of the federal judge if the state prisoner pursued his cause further. See Townsend v. Sain, 372 U.S. 293, 312-318, 83 S.Ct. 745, 9 L.Ed.2d 770. Greater finality would inevitably attach to state court determinations of federal constitutional questions, because further evidentiary hearings on federal habeas corpus would, if the conditions of Townsend v. Sain were met, prove unnecessary.
None can view with satisfaction the channeling of a large part of state criminal business to federal trial courts. If adequate state procedures, presently all too scarce, were generally adopted, much would be done to remove the irritant of participation by the federal district courts in state criminal procedure. The 1954 Report of the Special Committee on Habeas Corpus of the Conference of Chief Justices pointed the way in urging that 'State statutes should provide a postconviction process at least as broad in scope as existing Federal statutes under which claims of violation of constitutional right asserted by State prisoners are determined in Federal courts under the Federal habeas corpus statutes,' and recommending provisions for hearing, a record, fact findings and conclusions of law. H.R.Rep.No.1293, 85th Cong., 2d Sess., p. 7 et seq.
These are similar to other suggestions of desirable attributes of a state postconviction procedure which should reduce the necessity for exercise of federal habeas corpus jurisdiction. The procedure should be swift and simple and easily invoked. It should be sufficiently comprehensive to embrace all federal constitutional claims. In light of Fay v. Noia, supra, it should eschew rigid and technical doctrines of forfeiture, waiver, or default. See Douglas v. Alabama, 380 U.S. 415, 422-423, 85 S.Ct. 1074; Henry v. Mississippi, supra. It should provide for full fact hearings to resolve disputed factual issues, and for compilation of a record to enable federal courts to determine the sufficiency of those hearings. Townsend v. Sain, supra. It should provide for decisions supported by opinions, or fact findings and conclusions of law, which disclose the grounds of decision and the resolution of disputed facts. Provision for counsel to represent prisoners, as in § 4 of the Nebraska Act, would enhance the probability of effective presentation and a proper disposition of prisoners' claims.
But there is no occasion in this case to decide whether due process requires the States to provide corrective process. The new statute on its face is plainly an adequate corrective process. Every consideration of federalism supports our conclusion to afford the Nebraska courts the opportunity to say whether that process is available for the hearing and determination of petitioner's claim.

## Notes

* ↑ The petition for habeas corpus reads:
* ↑ See Jackson v. Olson, 146 Neb. 885, 893-894, 22 N.W.2d 124, 129-130, 165 A.L.R. 932; In re Dunn, 150 Neb. 669, 35 N.W.2d 673; Hawk v. Olson, 145 Neb. 306, 16 N.W.2d 181, rev'd 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61, on remand, 146 Neb. 875, 22 N.W.2d 136.
* ↑ The response stated: 'For all practical purposes, there is no collateral remedy available in the Nebraska courts to a state prisoner who alleges that a violation of his federal constitutional rights occurred in connection with his conviction and whose claim has not yet been considered by the state courts, unless the prisoner's claim is predicated upon a lack of jurisdiction of the sentencing court over the offense or over the person of the accused.'
* ↑ The new statute, Neb.Leg. Bill 836, 75th Session, effective April 12, 1965, provides:
* ↑ The petitioner states in his brief:
* ↑ Petitioner refers to Young v. Ragen, supra, where, in vacating the denial of state habeas corpus, the Court said: 'If there is now no post-trial procedure by which federal rights may be vindicated in Illinois, we wish to be advised of that fact upon remand of this case.' 337 U.S., at 239, 69 S.Ct. at 1075. He also cites Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Boles v. Stevenson, 379 U.S. 43, 85 S.Ct. 174, 13 L.Ed.2d 109; Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408; and Note, Effect of the Federal Constitution in Requiring State Post-Conviction Remedies, 53 Col.L.Rev. 1143 (1953).
* ↑ Dean Griswold of the Harvard Law School, in an address, 'The States and Criminal Law,' given on May 13, 1965, to the Cleveland Bar Association, said:
* ↑ The Uniform Post-Conviction Procedure Act, 9B Uniform Laws Ann. 352-359, designed to provide adjudication of federal claims, has had but slight influence in the States. Arkansas adopted the Uniform Act in 1957, but repealed it two years later. 2 Acts of Arkansas (1959) 1160-1161. Six States in addition to Nebraska have adopted their own statutes. Ill.Rev.Stats., c. 38, §§ 122-1 to 122 7 (1963); Me.Rev.Stat.Ann., c. 126, §§ 1-A to 1-G (Supp.1963); Md.Ann.Code, Art. 27, §§ 645A to 645J (Supp.1964); N.C.Gen.Stat. §§ 15-217 to 15-222 (Supp. 1963); Ore.Rev.Stat. §§ 138.510-138.680 (1963); Wyo.Stat.Ann. §§ 7-408.1 to 7-408.8 (1963 Cum.Supp.). Procedures have been adopted by rule of court in six States. Alaska Sup.Ct. Rule 35(b); Del.Super.Ct.Crim.Proc. Rule 35(a); Fla.Rules Crim.Proc. 1; Ky.Rules Crim.Proc. 11.42; Mo.Sup.Ct. Rule 27.26; N.J.Crim.Prac. Rules of Super. and County Cts., Rule 3:10A 2. Some state courts are apparently broadening existing postconviction remedies by judicial construction. See, e.g., People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965); State ex rel. Banach v Boles, 141 W.Va. 850, 858, 131 S.E.2d 722, 728 (1963); Hunt v. Warden, 335 F.2d 936, 941-942 (C.A.4th Cir.) (discussing the expanding Maryland remedy). See also the views expressed in People v. Wilson, 18 App.Div.2d 424, 430, 239 N.Y.S.2d 900, 903; Ex parte Aaron, 275 Ala. 377, 381-382, 155 So.2d 334, 337-338 (dissenting opinion); Donnell v. Nash, 323 F.2d 850 (C.A.8th Cir.); Cobb v. Balkcom, 339 F.2d 95, 100 (C.A.5th Cir.). Proposals that the States make their postconviction procedures co-extensive with federal habeas corpus are found in Meador. Accommodating State Criminal Procedure and Federal Postconviction Review, 50 A.B.A.J. 928 (1964); National Assn. of Attys. Gen. Conference Proceedings, 1964, pp. 42-43 (remarks of Arthur J. Sills, Atty. Gen. of New Jersey), 149-150 (resolution of the Association); Brennan, Some Aspects of Federalism, 39 N.Y.U.L.Rev. 945, 957-959 (1964).
* ↑ See Meador, supra, 50 A.B.A.J., at 929-930, Brennan, supra, 39 N.Y.U.L.Rev., at 958-959; cf. Report No. 23, ABA Section of Criminal Law (Mid-Winter Meeting, Feb. 1965) 5, 7.
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