Warren E. Burger: We’ll hear arguments first in number 73-5768, Francisco against Gathright. Mr. Kaufman, you may proceed whenever you're ready.
Daniel C. Kaufman: Mr. Chief Justice and may it please the Court. This case is here on writ of certiorari to United States Court of Appeals for the Fourth Circuit and two questions are presented for the Court’s consideration. First is, may a federal habeas corpus court decline to consider the merits of an issue already presented in a direct appeal to a State Supreme Court merely because the State Supreme Court in a later case has accepted the same position that was earlier urged upon them? Secondly, may a federal habeas corpus court decline to reach a fully exhausted issue merely because it shares a habeas corpus petition with an unexhausted issue? We submit that both for these questions should be answered in the negative and that petitioner should have a prompt adjudication of both of his habeas corpus issues by a federal court.
Warren E. Burger: Do I read the record correctly that the district -- the state court by whatever names it’s known here, the state court had indicated readiness to grant a new trial?
Daniel C. Kaufman: No Your Honor, not at all. What had happened is in response to the District Court opinion which devolved upon the state the burden of going forward. The Commonwealth had petitioned the Circuit Court of Fairfax County to initiate a habeas corpus proceeding on petitioner’s behalf at which the presumably the instruction issue would be raised before them and that's how that was said in motion. And other counsel were appointed by the Fairfax Court and when I received notice of those proceedings I both moot in the federal court to stay them and also when the federal court refuse to stay those proceedings appeared in the state court proceeding. And I think Mr. Chief Justice, you focused on one of the issues that respondent has raised that is why didn’t I just go back into the state court have this issue -- this instruction issue adjudicated and done with. I would submit that there are numerous reasons for not going back. First of which, it is not at all clear that although Commonwealth through the Attorney General would be satisfied to have the issue adjudicated by the state court. It’s not at all clear under the state court rule of Hawks versus Cox which is cited in our brief that the state court would even hear the merits of the instruction issue because the instruction issue was raised on direct appeal and the writ of error denied and the Hawks doctrine states that absent change circumstances determination of an issue by a state or federal court is conclusive and there is no indication that the Sharp decision upon which the Commonwealth relies is a change circumstance within the meaning of Hawks doctrine. Secondly, --
Byron R. White: Mr. Kaufman, is Mr. Francisco -- where is he now?
Daniel C. Kaufman: He is still at Bland Correctional Farm, Southwestern Virginia.
Byron R. White: If he had gone here, might not the whole thing have been resolved by this time, he won’t have to be in jail?
Daniel C. Kaufman: I don’t believe so, Your Honor. For the reason that first of all it’s not at all clear that the state court would even consider the merits of the instruction issue much less ruin our favor on it.
Byron R. White: Yes, but if a man’s liberty is at stake in (Inaudible) and after all you can judge a no (Inaudible) if you like to take it from that?
Daniel C. Kaufman: He indicated that that we could return if the state did refuse to consider it, but I think we have to look at the totality of the case and there was a search and seizure issue also presented. And I don’t think --
Byron R. White: I was just wondering if you aren't misdemeaning a man’s freedom is just for very nice people period?
Daniel C. Kaufman: No, I don’t think so at all. I think what happens is if we were to go back and if we were to get a favorable ruling from the state court on the instruction issue which is by no means clear. We would still have this unresolved search and seizure issue. Mr. Francisco probably would be retried. I seen the Commonwealth is certainly not stipulated they will not retry him. Absent, that even without the challenge instruction I see no reason why we could not expect that he would be again convicted at least of the offense of simple possession of controlled substance which the instruction is not related.
Thurgood Marshall: If you win here, wouldn’t the state have a right to retry?
Daniel C. Kaufman: Your Honor, Mr. Justice Marshall, I think what we’re asking for is a decision on search and seizure, and the instruction issue. If the search and seizure issue is resolved in our favor on the merits, then as a practical matter, the state cannot retry him because there simply is no evidence that could be introduced that was not illegally seized or is not the fruit of illegally seized evidence.
Thurgood Marshall: Assuming that it went through the state court could not the District Court still have held it?
Daniel C. Kaufman: I'm sorry Mr. Justice Marshall I don’t quite understand your question.
Thurgood Marshall: If you're going back in the state court, how would that a prejudice to federal court proceeding?
Daniel C. Kaufman: Well, as the Court of Appeals below did they vacated that part of the decision of District Court which ruled on a search and seizure issue and said that the federal courts should stay their hands entirely on that issue until the full gambit of the state court proceeding is on its course.
Thurgood Marshall: I'm not talking about that, I'm saying when the state court matter was attempted to be opened up?
Daniel C. Kaufman: Yes.
Thurgood Marshall: And you were going to the state court and had lost, would you been any worse off than you are now?
Daniel C. Kaufman: We would not be any worse off, we would --
Thurgood Marshall: And on the other hand if you've gone to state court and won, you would’ve been better off than you are now?
Daniel C. Kaufman: I beg to disagree for the --
Thurgood Marshall: Alright. Did you hear what I said you went to the state court and won?
Daniel C. Kaufman: I understand that.
Thurgood Marshall: And the man was turned loose, wouldn’t you be better off than you are now?
Daniel C. Kaufman: Not to the extent that he faced retrial and the risk of an increase sentence upon that retrial since --
Thurgood Marshall: I said he was turned loose.
Daniel C. Kaufman: Unequivocally, and was not retried?
Thurgood Marshall: Yes.
Daniel C. Kaufman: Then you're plainly correct.
Thurgood Marshall: It might be better off. Why didn’t you do it, why didn’t you do it?
Daniel C. Kaufman: Because I think it’s --
Thurgood Marshall: Because you didn’t think he could win?
Daniel C. Kaufman: No, I did not think that I could prevail on the instruction issue and for that reason alone have the state declined to prosecute him further. I simply then lost the belief that they would let the matter rest and they have certainly not indicated that they are willing not to retry him if his conviction is set aside only on the instruction issue.
Potter Stewart: And the state court had already rejected your search and seizure issue?
Daniel C. Kaufman: Exactly. They -- well, there’s absolutely no question at all that the search and seizure issue had been fully exhausted, there have been no change in state law whatever and the state courts would probably decline to hear it again even on a retry. I think if you take the Commonwealth’s position that the chain of events of a direct appeal and a subsequent state court decision what you wined up with is more interference with state court proceedings because you'll have the federal courts anytime a new state court decision comes out. The federal courts will be called upon to determine whether this new decision is going to affect habeas corpus petitions presently pending before it and if there's any question that it will or it won't even though those issues were presented to the state court in direct proceedings, the federal court would be constrained or would be authorized to send it back into the state courts which have indicated no interest in hearing the question.
William H. Rehnquist: Mr. Kaufman, do you read the Sharp case from the Supreme Court of Virginia as turning on state or federal constitutional consideration?
Daniel C. Kaufman: Both Mr. Justice Rehnquist. I think it’s clear that they relied on their own line of cases and also in this Court’s decision in Leary on the federal issue on whether this is an irrational hence, an unconstitutional presumption. I think that this Court has indicated in Roberts v. LaVallee which has been cited in our brief that the mere possibility of successful pursuit of a state remedy that is open is not sufficient to send the petitioner back to exhaust that remedy again when he has exhausted once before. This Court’s been fairly clear that repetitious applications to state court are just not required of a habeas corpus petition. He is just required to once give the state courts a fair opportunity to resolve the issue and Mr. Francisco has given the state court in his direct appeal their opportunity to adjudicate the precise question which they later adjudicated in Sharp.
Byron R. White: Was Roberts cited to the District Court and the Fourth Circuit?
Daniel C. Kaufman: Your Honor, it was cited to the District Court in my motion to stay proceedings which appears in the appendix at 43. And the Fourth Circuit by a virtue of their abbreviated procedure in habeas corpus matters did not call for full briefing on this case but merely sent petitioner a letter asking him to informally inform that court what complaint he had of the District Court’s decision. He in turn forward that letter to me and I responded in somewhat informal fashion in light of the Circuit Court’s request and did not cite any cases in that letter.
Byron R. White: Incidentally, was the federal habeas petition filed after Sharp was decided or before?
Daniel C. Kaufman: The federal habeas petition was formally filed after the Sharp case was decided. It was received by the District Court accompanied by application to proceed informal corpus two days after Sharp but was and was the delay between the receipt by the District Court in filing took place because of the District Court’s refusal to grant informal corpus status at that stage. However, I think if you look at the petition, you'll see that it was verified by the petitioner in September which was prior to the October 3rd decision in Sharp. So, it wasn’t a case were the Sharp decision came down he said, there's a great decision let’s run with it in the federal courts. The petition was fully prepared for the Sharp decision that’s been handed down.
Byron R. White: But nevertheless, the decision was made to go into federal court rather than a state form?
Daniel C. Kaufman: Frankly, Your Honor I was not aware of the existence of the Sharp decision until some two weeks later when it finally made its way into the informal legal press and then it was not formally reported in the Southeast Reporter until some months later. So, at the time the petition was actually sent to the District Court both I and petitioner were unaware of the existence of the Sharp decision. I think also we have to look not only to the instruction issue which was involved in Sharp but we have to look the search and seizure issue which was by everyone’s notion fully and completely exhausted absolutely right for decision. And what the Fourth Circuit did and the District Court did not do was to say, well, the District Court is right in sending you back to the state courts to have your instruction issue adjudicated. But what the District Court should have also done is state its hand on a completely independent search and seizure issue and not even reached the merits of that issue. And accordingly, the Court of Appeals vacated that portion of a District Court opinion which did deal with the search and seizure issue and I would submit that that's wholly inappropriate way of treating a multiple issue habeas corpus petition.
William H. Rehnquist: What if the Court of Appeals had ruled exactly the same way that District Court had? It had upheld your federal constitution claim on the instruction. Would it then have been proper for the Court of Appeals to say, we don’t have to pass on the Fourth Amendment claim since your man is going to get a new trial anyway?
Daniel C. Kaufman: No, I don’t think that that’s the proper course to take for the basic reason that the search and seizure issue is as a matter of practicality dispositive of a retrial. There's very little point in saying if we’re going to make a choice on issues and say because we reached one issue, we’re not going to reach another. Reaching the instruction issue and not reaching the search and seizure issue seems to be putting the cart before the horse because if you say, let's leave the search and seizure issue ride for awhile, let's allow him to be retried, allow him to have another state appeal wherein that instruction presumably will not be given. And then some two or three years later will be in a position to rule on a search and seizure issue which would have been dispositive in the first instance and would’ve not required any further proceedings in the state court of any character.
William H. Rehnquist: What if you make both a Miranda claim in the search and seizure claim and your federal habeas petition, is it your position that the District Court must pass on the merits of both them if exhaustion is present?
Daniel C. Kaufman: Well, I would first say that I believe as a matter of judicial economy and the fundamental nature of the habeas corpus writ that a court should always pass on all issues presented to it and right for adjudication because they will in many instances control a retrial. But I think in an individual case, you also have to examine -- make an examination of what else is there beside this particular issue that could come up in a retrial. Now, if you had a Miranda issue and a search and seizure issue for example and if excluding the confession would not as a practical matter -- preclude a retrial. Then, I think you want to reach -- and the search and seizure would then I think you want to reach that issue which would as a practical matter preclude a retrial because otherwise you'll wind up with a retrial that may proof fruitless. You'll also -- what you also be doing is interfering with the fact-finding process that will ultimately have to be made on a search and seizure issue or Miranda issue or any kind of an issue where we have to go outside of the record or we could go outside of the record to determine the issue. What you're doing by permitting a retrial with an issue unresolved is at best you're delaying it and you may impair the fact-finding process when a federal district court is ultimately called upon to decide it.
William H. Rehnquist: But conceivably on a retrial the state court might hold the factual hearing again on the search and seizure thing that might be adequate under the 1966 revisions to Habeas Corpus Act, might that?
Daniel C. Kaufman: It might well be but it might also be that the state court would say that the prior decision on a prior motion to suppress is the law of the case. We were simply in a very murky procedural area and what we’re doing is it seems to me going to and snare a petitioner this on procedural murkiness areas and sort of in the hope that the case will go away which is the Fourth Circuit seem to say what might be that this case is going to be moot one day and will never have to rule on this search and seizure issue. And I simply don’t believe that a federal court should speculate as to mootness on this kind of a record where there's simply no reason to believe that Francisco would not be retried. There's simply no reason to believe that he could not be again convicted by the state at least of the lesser included offense of simple possession. And it’s plain that the search and seizure issue relates altogether with whether they can convict him possessing a controlled substance at all. Instruction issue merely goes to whether there is sufficient evidence in state court under proper instructions for the jury who was found guilty of possession with intent to distribute. I think this interference with the fact-finding process is the same kind of concern this Court expressed in Barker versus Wingo, the speedy trial case as the reasons for not delaying the trial -- the initial trial on the merits. And I think the other aspect of prejudice alluded to by this Court in Barker is that of anxiety is still present in this case. Petitioner still has no way of knowing what the ultimate outcome of his Fourth Amendment issue is going to be if this Court says that the courts below were right and that we should go back into state court thrash out the instruction issue. If we win have a new trial maybe have him convicted to a more severe sentence to a more time by the jury. And then he can have his Fourth Amendment issue finally resolved by the federal courts. I think if we also adopt the Commonwealth’s position in that regard where you have a multiple issue situation and assuming arguendo that this Court decides the instruction issue has not been appropriately exhausted and that the instruction issue is really properly before this -- the state court. I think what you wind up with doing is encouraging petitions for certiorari to this Court because people who were convicted in state court who have, let's say a federal constitutional claim which they have directly raised and have fully adjudicated in direct appeal. Yet, they have other constitutional claims which have not been so adjudicated would be discouraged from seeking intervention of the lower federal courts by habeas corpus petition but it would instead be encourage to petition this Court for review by certiorari on that very issue that was in fact decided by the State Supreme Court. And I think as this Court recognized in Fay assert petition on a direct appeal is an unnecessarily burdensome step in vindication of federal constitutional rights where it can be relied upon that the federal -- the lower federal courts will be in a position to hold hearings if need be or would be in a position to adjudicate these federal constitutional issues. If the Court has no further questions, I would reserve the remainder of my time for rebuttal.
Warren E. Burger: Very well, Mr. Kaufman. Mr. Shepherd.
Robert E. Shepherd, Jr.: Mr. Chief Justice and may it please the Court. As Mr. Kaufman has pointed out, there are essentially two issues involved in this case. The first relates to the instructional issue which was based on a Virginia statute at that time that indicated that a conviction of possession of drugs could be based solely upon evidence as to the quantity of that drugs conviction of possession with the intent to distribute. An instruction based on that statute was given in this case in the Circuit Court of Fairfax County. I might point out that the objection that was made at the time of that instruction was and I quote from page 129 of the transcript of trial “we object to instruction ‘G’ Your Honor, we realized that this is merely a quotation from the statutory language.” However, it is my opinion that this instruction does not in any way guide the jurors and may tend to confuse them. Now, this is not in the appendix -- this portion from the transcript. Subsequently, in other words, the objection at that point was on the basis of the possible vagueness of the instruction or on the basis the instruction might tend to confuse the jurors rather than really guide them. When the petition for appeal was filed in the Supreme Court of Virginia, the nature of the issue had somehow been re-characterized and it was then based on the several federal constitutional issues including the validity of the statute upon which the instruction was based on the basis of vagueness and also on the basis of this Court’s decision in Leary versus United States in that it was an impermissibly unconstitutional presumption. So we would submit that even initially there might be some threshold question of exhaustion as to in light of this Court’s decision in Picard versus Connor based on whether the federal constitutional issue was ever precisely presented to the Virginia courts. In other words, the Virginia Supreme Court takes the position that the only issues that will be dealt with be effectively on appeal are issues that were properly and timely raised at the trial.
William H. Rehnquist: Was this a writ of error denied case in (Voice Overlap)?
Robert E. Shepherd, Jr.: Yes, it was. Consequently, we deal with that initial threshold question as to whether there was exhaustion despite an incomplete ignorance of the issue based on the Virginia Supreme Court’s subsequent decision in Sharp. However, let's turn to that aspect of it. The Sharp case as Mr. Kaufman pointed out the Virginia decision -- decision of Virginia Supreme Court in Sharp was based on state law relative to vagueness in a statute and it was also based on the Leary decision of this Court.
William J. Brennan, Jr.: A state law and that is state constitutional?
Robert E. Shepherd, Jr.: State constitutional law as to vagueness -- the Court does not specifically delineate where it’s basing its decision on federal constitutional law and where on state constitutional law but it is clearly dealing with the issue on a mixed basis, Mr. Justice Brennan.
William J. Brennan, Jr.: On both grounds?
Robert E. Shepherd, Jr.: Yes sir, Your Honor. The petitioner and there's no question about the fact that the issue on search and seizure was properly raised and properly characterized both at the state level and the lower courts and in the Supreme Court of Virginia. A writ of error was denied as to both issues which in the Virginia Supreme Court is considered to be a ruling on the merits -- the order denying a writ of error states that it is denied for the reason that the judgment of the court below is plainly right. The petitioner then filed his petition for a writ of habeas corpus in the federal district court for the Eastern District of Virginia and Alexandria raising principally these two issues as Mr. Kaufman has pointed out the Sharp decision intervened before the District Court dealt with this case and the District Court took the position that the intervening decision in Sharp necessitated that the petitioner exhaust his available state court remedies with regard to the instructional issue. In that, this intervening decision did present a new state of law and the Virginia courts quite possibly and perhaps probably would feel compelled to grant petitioning a new trial based on the intervening decision in Sharp versus Commonwealth. The District Court though did proceed to deal with the search and seizure issue on the merits and rule that the issue did not have any validity that the search and seizure in this case was indeed proper and that the evidence was properly admissible. The District Court took the somewhat unusual procedural stands that as to the unexhausted instructional issue -- the burden was on the respondent represented by the Attorney General’s office to present the issue to the state courts in some manner for a re-adjudication of the Sharp issue. The respondent of course objected to this procedure on the basis that the rational of 28 United States Code Section 2254 with regard to its requirement of exhaustion of available state court remedies places that burden of exhausting the state court remedies on the petitioner. But nevertheless and in the absence of any real guidance is to what procedure the state could take to initiate a habeas corpus proceeding, the Attorney General’s office did attempt to initiate proceedings in the Circuit Court of Fairfax County. The Circuit Court was likewise had some laws as to what sort of procedure could be initiated either by the Court or by the Commonwealth and the decision was made to send habeas corpus forms to the petitioner and advise how they should be prepared and the petitioner ignored this communication and the Court subsequently in spite of this appointed counsel for the petitioner and brought the matter forward for a hearing. At that point Mr. Kaufman who have been involved in this case for some time and still has appeared at the hearing along with court-appointed counsel and the court attempted in some detail to urge the petitioner to present the case forward for a hearing to determine whether a new trial was required and if petitioner took the position that he did not want to present the issue to the court. Now, whatever happens to this case in the future I think a substantial issue may have been raised at this point as to deliberate bypass of state procedures in so far as that instructional issue is concerned. The petitioner was certainly given an opportunity. The Court addressed itself both to counsel for the petitioner and to petitioner directly and they were advised I think in terms that would meet the Johnson versus Zerbst standard as to an intelligent knowing and voluntary waiver. They made the decision not to proceed further on the instructional issue. Meanwhile, the case was wending its way to the United States Court of Appeals for the Fourth Circuit.
Thurgood Marshall: Are you going to make this the law of the case or raise it, what you are going to do with when you drag a man in the courtroom?
Robert E. Shepherd, Jr.: Do you mean as to the instructional issue as to whether we would make to lower the case that there has been a deliberate bypass?
Thurgood Marshall: Would you try to, how could you?
Robert E. Shepherd, Jr.: Well, I think the issue would have --
Thurgood Marshall: Mr. Kaufman and the petitioner didn’t come there voluntarily, didn’t he?
Robert E. Shepherd, Jr.: Well, they didn’t come in there voluntarily in the sense that they did not initiate the proceeding. However, --
Thurgood Marshall: They objected to the proceeding.
Robert E. Shepherd, Jr.: They objected to the proceeding, that’s correct.
Thurgood Marshall: How could they be bound by it? Did they ever submit to a jurisdiction of the court?
Robert E. Shepherd, Jr.: I'm not sure that they technically submitted to the jurisdiction of the court.
Thurgood Marshall: Did they file anything?
Robert E. Shepherd, Jr.: They filed nothing.
Thurgood Marshall: How do you get jurisdiction of it?
Robert E. Shepherd, Jr.: Well, of course we have that question in the first instance as to why the burden --
Thurgood Marshall: All I'm saying is I’m --
Robert E. Shepherd, Jr.: Why the burden was placed on us.
Thurgood Marshall: (Voice Overlap) I got this all.
Robert E. Shepherd, Jr.: Right, and of course we felt to that procedure was not the appropriate one but nevertheless we proceeded on the basis of what we have been directed to do by the federal District Court judge. It may present if this case works its way back down, it may present an interesting issue at that point as to whether it be considered a deliberate bypass. But in the case came to the United States Court of Appeals for the Fourth Circuit they of course agreed with the District Court’s disposition of the instructional issue feeling that the petitioner had not properly exhausted his available state court remedies in light of the intervening decision of the Supreme Court of Virginia. But the court, somewhat of its own motion took the position that the District Court should not also have ruled on the search and seizure issue and that the case was going back to the state courts and the disposition of the instructional issue could in fact be dispositive of the entire case.
Byron R. White: Are you -- you're suggesting or you say there's an argument, it could be made that there's a deliberate bypass of the instructional issue?
Robert E. Shepherd, Jr.: That’s correct.
Byron R. White: In the sense that the defendant is going forward and would be precluded by deliberate bypass or many remedy in the state court?
Robert E. Shepherd, Jr.: I think that's an argument --
Byron R. White: Do you think -- in which event of the Court of Appeals clearly would be -- would have been wrong not to reach the Fourth Amendment issue?
Robert E. Shepherd, Jr.: Mr. Justice White, I am not completely sure that's Fourth Circuit was even aware.
Byron R. White: Assume there was a deliberate bypass that means there would be no remedy available in the state court?
Robert E. Shepherd, Jr.: That’s correct.
Byron R. White: In which event the Fourth Amendment issue is squarely on the table?
Robert E. Shepherd, Jr.: Probably so and of course that --
Byron R. White: Probably it would be, wouldn’t it?
Robert E. Shepherd, Jr.: That’s correct, but I don’t think --
Byron R. White: Do you think you make deliberate bypass in that argument?
Robert E. Shepherd, Jr.: Well, I don’t think that question was squarely before the United States Court of Appeals for the Fourth Circuit.
Byron R. White: Are you putting it before us?
Robert E. Shepherd, Jr.: No, not really at this point because I think --
Byron R. White: I think you would.
Robert E. Shepherd, Jr.: I think this Court has to probably deal with the issues as they were before the Fourth Circuit. I think the question of deliberate bypass may have to be dealt with in the District Court --
Byron R. White: In the state court.
Robert E. Shepherd, Jr.: In the state court ultimately, initially and perhaps ultimately in the federal court.
Byron R. White: Well, if the defendant is going to face that kind of argument from you in the state court which apparently he is at least that’s another argument for having a ruling in the federal court on the search and seizure?
Robert E. Shepherd, Jr.: Well, of course then we get into the question procedural sequencing you know it appears to me that the federal courts would have to deal with the question of exhaustion including the deliberate bypass argument before they could deal properly with the search and seizure question.
Byron R. White: Well, nobody could ever have to deal with it unless you raised it.
Robert E. Shepherd, Jr.: Well, that’s correct and I certainly would not want to waive that position at this point.
Byron R. White: But nevertheless argue he must go back and face it.
Robert E. Shepherd, Jr.: I think that's right, I think he has to go back and face the question.
Byron R. White: But then he can come back to court on the search and seizure issue?
Robert E. Shepherd, Jr.: It was certainly a procedural decision that he had to make at the time of that hearing and the Circuit Court in Fairfax County. He very easily and I think the tone of that hearing indicated that the Judge of Circuit Court -- the state court would have been inclined to -- the question was put to him in the sense of if a new trial were ordered would you cooperate? And he said, no and that they felt that it would be double jeopardy. Of course going back to the Fourth Circuit’s decision on the search and seizure issue, we would take the position at this point that if the Court wants to deal with the procedural aspects of a search and seizure issue than we feel that that issue should be addressed in a context of Mr. Justice Powell’s concurring opinion in Schneckloth versus Bustamonte as to whether the search and seizure issue itself should in fact appropriately be dealt with on federal habeas corpus without a determination of the narrow context as to whether Mr. Francisco had been afforded a fair opportunity to raise the federal constitutional issues and have that question adjudicated in the state courts.
Thurgood Marshall: What about Roberts against LaVallee?
Robert E. Shepherd, Jr.: Mr. Justice Marshall, we feel that Roberts against LaVallee is perhaps a decision of somewhat narrower boundaries than this decision the issue involved in Roberts was whether the petitioner in that case as an indigent was entitled to a free transcript of the preliminary hearing just as a pecunious defendant would have been. This Court dealt with that case on a per curiam basis. We submit that the Roberts issue was in fact a narrow procedural point -- the right to transcript of the preliminary hearing really was not a substantive issue in the sense that this instructional issue is a substantive issue. We submit that we’re dealing here with a question that may in fact be dispositive of the entire substance of the case and it’s not merely a procedural point as to whether person was entitled to a transcript or something of a --
Thurgood Marshall: Well, in this case that he was entitled to another instruction, he would be retried?
Robert E. Shepherd, Jr.: That’s correct.
Thurgood Marshall: And the same evidence would be used?
Robert E. Shepherd, Jr.: I assume unless the state court (Voice Overlap).
Thurgood Marshall: What kind of fundamental is that?
Robert E. Shepherd, Jr.: Unless the state court were to make a new determinant.
Thurgood Marshall: Right. But once you lose your motion to suppress, you don’t have it.
Robert E. Shepherd, Jr.: That’s correct and I think Mr. Kaufman is correct and that the state courts would not re-adjudicate the search and seizure issue after the Supreme Court of Virginia denied a writ of error.
Thurgood Marshall: Well, is that log like Roberts?
Robert E. Shepherd, Jr.: Well, the results maybe the same, the court really did not address all of the issue in Roberts -- I don’t believe the case was -- I'm not sure with the case was brief and argued it was a per curiam decision that petition for writ of certiorari appear to have been --
Thurgood Marshall: (Inaudible)
Robert E. Shepherd, Jr.: It was a per curiam opinion that dealt fairly narrowly with the issue as to the availability of the transcript and the right to access to the transcript. The court did not deal too broadly with the procedural habeas corpus issue and --
William H. Rehnquist: Well, they did say though. If you would have an opportunity and did raise the question before the state courts on direct appeal, you didn’t have to go back in a state collateral proceeding to raise the same thing all over again, did they?
Robert E. Shepherd, Jr.: I think the problem we have here of course is that the resolution of that question was somewhat dispositive in that case procedurally. Here, we've got an initial issue for example as to whether the instruction could’ve been harmless error. In other words, there would be an opportunity for a factual hearing in this case as to whether even the granting of the instruction was error such as to require a new trial. Now, this was the one of the basic reasons for the state courts having an opportunity to re-adjudicate the issue in light of Sharp. For example in this case there was affirmative evidence at the trial not only of an intent to distribute but of an actual distribution of the heroin in this case. As a consequence, the court could conclude after an evidentiary hearings that the giving of the Sharp instruction for one or better terminology is a short hand -- the giving of the Sharp instruction was in fact harmless error because there were substantial evidence in the record of actual distribution.
Thurgood Marshall: Mr. Shepherd, you were right with that argument. They granted certiorari right and upheld judgment.
Robert E. Shepherd, Jr.: That was my impression Mr. Justice Marshall because I feel that the court has in the last few years --
Thurgood Marshall: You don’t try to get too much out of that, do you?
Robert E. Shepherd, Jr.: Sir?
Thurgood Marshall: You don’t try to get too much out of that, do you?
Robert E. Shepherd, Jr.: I don’t try and get an awful out of that.
Thurgood Marshall: There was an opinion and a dissenting opinion.
Robert E. Shepherd, Jr.: Although, I think the Court has been inclined in the last few years to deal with some of the procedural aspects of federal habeas corpus and a good deal more detail than it had during the period in which the Roberts case was decided.
Thurgood Marshall: That’s your opinion?
Robert E. Shepherd, Jr.: That’s my opinion, yes.
Thurgood Marshall: Which you are entitled to it.
Robert E. Shepherd, Jr.: That’s true. Your Honor as we submit that the decision of the United States Court of Appeals for the Fourth Circuit in this case is plainly correct that the court was proper in saying that the issue of search and seizure should not be decided by the state courts in light of the disposition that was being made of the Sharp instructional issue. If the court --
Byron R. White: Suppose the Virginia -- suppose the state courts have not changed their mind, suppose there hadn't been any change in the state law and the issue then presented of both state court to the state court turned down no question of exhaustion and the two issues are presented to the federal district court and to the federal Court of Appeals, which issue would you think the Court of Appeals should reach? You don’t think they should reach both, but which one should they reach first?
Robert E. Shepherd, Jr.: Assuming that there had been exhaustion we would take the position that they should not reach the search and seizure issue at all.
Byron R. White: Well, I know, but that’s to the court, do you think that and not available -- now, let's assume the law state the way it is namely that that you do reach those.
Robert E. Shepherd, Jr.: That Kaufman is still liable?
Byron R. White: Yes.
Robert E. Shepherd, Jr.: Well, --
Byron R. White: Certainly, the search and seizure issue is much more like, it is going to have a greater impact on the trial than the instructional issue?
Robert E. Shepherd, Jr.: I think that’s probably correct Mr. Justice White.
Byron R. White: Yes.
Robert E. Shepherd, Jr.: Obviously, if the evidence has to the search and seizure is excluded, I think that's in a sense dispositive of the case.
Byron R. White: Yes.
Robert E. Shepherd, Jr.: But, in light of the action that the District Court had taken on the instructional issue and in light of the Fourth Circuit’s view that that was the correct disposition for the Court to then deal with the search and seizure issue --
Byron R. White: I know but what --
Robert E. Shepherd, Jr.: -- would be to in a fact dealing with a pretrial of federal habeas corpus giving an advisory opinion prior to what might very well be a new state trial.
Byron R. White: Why shouldn’t the Fourth Circuit have dealt with search and seizure issue first and that it sustained that the trial -- the case was over and that that turn it down and then they sent it back to case to the Virginia courts on the instructional issue?
Robert E. Shepherd, Jr.: I think that would’ve been a much easier road to travel but as to whether it would’ve been and appropriate or a proper road, I think it’s an entirely different question.
Byron R. White: Or whether it’s error, if it didn’t?
Robert E. Shepherd, Jr.: Or whether it’s error if it didn’t.
William H. Rehnquist: Is it apparent for me that the District Court opinion or the Court of Appeals’ opinion that the states simply would not have tried the man again had the search and seizure point been resolved against him?
Robert E. Shepherd, Jr.: I don think either of the courts expressed any view on that Mr. Justice Rehnquist and it’s really hard for me to even say at this point what other available evidence there might be because it’s a local Commonwealth’s attorney that actually tries the cases and we merely handle the appellate in collateral proceedings.
Thurgood Marshall: Have you ever known of a dope case in Virginia where a conviction without any, the dope being used? [Laughter] I've never heard there was.
Robert E. Shepherd, Jr.: I think it would -- I think it [Laughter] would be very, very difficult conceivably in this case, they might have received it purely on the testimony of the informer as to whether he was able to express the facts that it was really --
Thurgood Marshall: But more to the point as I understand that your point is that the Fourth Circuit could have passed on both points but they didn’t have to pay a small (Inaudible).
Robert E. Shepherd, Jr.: I think that --
Thurgood Marshall: You admit that they could’ve passed on both.
Robert E. Shepherd, Jr.: I think they probably could have passed on both and in fact in the passed as counsel for the petitioners pointed out, they have done so in Hewett versus North Carolina. They dealt with an exhausted issue and exhausted issues and dealt with the merits of both issues. But I don’t think that their refusal to do so amounts to such an abuse of their discretion as to constitute reversible error in this Court. And I think that it’s a matter that should be left with the courts and the exercise of their discretion.
Potter Stewart: Mr. Shepherd, you sought up to bring up a couple of times the larger question or the larger position, the larger claim that a search and seizure claim is simply unavailable on federal habeas corpus that is the position taken by Mr. Justice Powell in his concurring opinion in Schneckloth against Bustamonte. You haven’t develop that I might -- the question is that issue really here, did you have you ever brought it up until now in this case? I mean --
Robert E. Shepherd, Jr.: I'm not sure that it’s ever directly been brought up and as to whether it’s properly before the court at this point and in matter of fact as to whether the substance of the issue is even before the court. We’re dealing more with the procedural niceties surrounding the substantive issues without dealing with the substantive issue directly.
Potter Stewart: So of course if you're -- if the claim is here, if you should prevail on that claim then clearly the Court of Appeals was right in saying in not reaching the claim because if you're correct they couldn’t reach the claim. They wouldn’t have the power if you will.
Robert E. Shepherd, Jr.: That would be correct.
Potter Stewart: But you haven’t made that, you haven’t take that position in this litigation until now, have you?
Robert E. Shepherd, Jr.: No, the Schneckloth is (Voice Overlap).
Potter Stewart: And you don’t really in your brief here?
Robert E. Shepherd, Jr.: Schneckloth is cited but it is not cited for that purpose.
Potter Stewart: Brought a composition.
Robert E. Shepherd, Jr.: Right.
Potter Stewart: And you haven’t brief to that?
Robert E. Shepherd, Jr.: No, that’s correct. It has not been briefed because we did not feel that the substantive issue itself was before the court. It was more the question of derivative of exhaustion argument as phrased by counsel for petitioner.
Warren E. Burger: Thank you Mr. Shepherd. Mr. Kaufman, do you have anything further?
Daniel C. Kaufman: Yes I do, Mr. Chief Justice. First, on the objection in state court I would freely conceive that inexperience trial counsel namely me in the heat of a hotly contested trial just overlooked that grounds for objecting to that instruction. But I point out to the Court that the constitutionality of that instruction was plainly unmistakably raised in the petition for writ of error as demonstrated on the pages 31 and 32 of the appendix. The Commonwealth in responding to that petition the abstract there is page 34 of the appendix addressed the merits so that there was no question at that time of any procedural default in raising the constitutionality of that instruction. And neither the District Court nor the Court of Appeals level has the Commonwealth asserted procedural default in raising that issue.
William H. Rehnquist: Do you agree with Mr. Shepherd, Mr. Kaufman that those practices of the Supreme Court of Virginia is not to pass on an issue such as that if it wasn’t raised any differently than you raised it in the Circuit Court?
Daniel C. Kaufman: Mr. Justice Rehnquist, I'm not that familiar with the practice of the Virginia Supreme Court to be aware of the rational for their decision but as Mr. Shepherd pointed out it was a decision and it has the effect of the decision on the merits.
William H. Rehnquist: Certainly not on the merits of a claim that prior decisions of the Court would hold couldn’t properly be raised in the absence of a suitable objection?
Daniel C. Kaufman: I would tend to agree that that would certainly be an open question had the Commonwealth in opposing the petition called the Court’s attention to some defect in the objection but they did not. They went right to the merits of the instruction itself, there was no question raised at that point as to any procedural default. And in that regard, I direct the Court’s attention to a recent the reported decision of an en banc panel of the United States Court of Appeals for the Ninth Circuit in Harris versus Superior Court which appears of 500 F.2d 1124 where the court there said a state court decision which could have been procedurally founded will not be presumed to be procedurally founded in a habeas corpus case unless the state court in its decision expressly states that it’s declining to reach the issue of the claim on a per procedural matter. Also on, Mr. Shepherd would have send this back to the state courts because there's something different about the way the state court and the state habeas corpus proceeding would handle it than the Federal Court would mention this concept of harmless error and I would suggest the Court that harmless errors always present in any habeas corpus petition whether it be state or federal and it’s present in the direct appeals. I don’t see any difference between the kinds of question and the ability of a court to consider the kinds of questions whether it’s a state court or federal court. And if there are no further questions from the bench, I would submit.
Warren E. Burger: Thank you Mr. Kaufman. Thank you Mr. Shepherd. The case is submitted.