# Wainwright v. Sykes > Supreme Court of the United States · June 23, 1977 · 433 U.S. 72 URL: https://www.frixlaw.com/law-library/cases/9426922 ## Case - **Full name:** Wainwright, Secretary, Department of Offender Rehabilitation of Florida v. Sykes - **Court:** Supreme Court of the United States - **Decided:** June 23, 1977 - **Citations:** 433 U.S. 72; 97 S. Ct. 2497; 53 L. Ed. 2d 594; 1977 U.S. LEXIS 135 - **Precedential status:** Published - **Opinion:** Concurrence by Burger - **Judges:** Rehnquist, Rehnqtjist, Burger, Stewart, Blackmun, Powell, Stevens, White, Brennan, Marshall - **Cited by:** 5,375 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Reported abrogated on other grounds by Coleman v. Thompson, 501 U.S. 722 (1991) — not on the Supreme Court's list. - Negative treatments: 2 - Distinguished by: 12 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9426922 ## How later opinions describe it (automated extraction) - holding that a state prisoner’s § 1983 action is barred (absent prior invalidation) — no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings) — if success in tha… - stating that the determination of guilt or innocence in a criminal trial is "a decisive and portentous event" because "[s]ociety's resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innoc… - holding that “contentions of federal law which were not resolved on the merits in the state proceeding due to respondent’s failure to raise them there as required by state procedure” also cannot be resolved on their merits in a federal habeas case—that is, they are “procedural… - stating that an attorney, “not the client, has the immediate and ultimate responsibility of deciding if and when to object, which witnesses, if any, to call, and what defenses to develop” and “such decisions must, as a practical matter, be made without consulting the client.” - holding that federal habeas petitioner who has failed to comply with Florida’s state-law contemporaneous-objection rule at trial had to show cause for the procedural default and prejudice attributable thereto in order to obtain review of his defaulted constitutional claim ## Opinion text Mr. Chief Justice Burger, concurring. I concur fully in the judgment and in the Court’s opinion. I write separately to emphasize one point which, to me, seems of critical importance to this case. In my view, the *92 “deliberate bypass” standard enunciated in Fay v. Noia, 372 U. S. 391 (1963), was never designed for, and is inapplicable to, errors — even of constitutional dimension — alleged to have been committed during trial. In Fay v. Noia , the Court applied the “deliberate bypass” standard to a case where the critical procedural decision— whether to take a criminal appeal — was entrusted to a convicted defendant. Although Noia, the habeas petitioner, was represented by counsel, he himself had to make the decision whether to appeal or not; the role of the attorney was limited to giving advice and counsel. In giving content to the new deliberate-bypass standard, Fay looked to the Court's decision in Johnson v. Zerbst, 304 U. S. 458 (1938), a case where the defendant had been called upon to make the decision whether to request representation by counsel in his federal criminal trial. Because in both Fay and Zerbst , important rights hung in the balance of the defendant’s own decision, the Court required that a waiver impairing such rights be a knowing and intelligent decision by the defendant himself. As Fay put it: “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 . . . then it is open to the federal court on habeas to deny him all relief . . . .” 372 U. S., at 439 . The touchstone of Fay and Zerbst , then, is the exercise of volition by the defendant himself with respect to his own federal constitutional rights. In contrast, the claim in the case before us relates to events during the trial itself. Typically, habeas petitioners claim that unlawfully secured evidence was admitted, but see Stone v. Powell, 428 U. S. 465 (1976), or that improper testimony was adduced, or that an improper jury charge was given, but see Henderson v. Kibbe, 431 U. S. 145, 157 (1977) (Burger, C. J., concurring in judgment), *93 or that a particular line of examination or argument by the prosecutor was improper or prejudicial. But unlike Fay and Zerbst , preservation of this type of claim under state procedural rules does not generally involve an assertion by the defendant himself; rather, the decision to assert or not to assert constitutional rights or constitutionally based objections at trial is necessarily entrusted to the defendant’s attorney, who must make on-the-spot decisions at virtually all stages of a criminal trial. As a practical matter, a criminal defendant is rarely, if ever, in a position to decide, for example, whether certain testimony is hearsay and, if so, whether it implicates interests protected by the Confrontation Clause; indeed, it is because “ ‘[e]ven the intelligent and educated layman has small and sometimes no skill in the science of law’ ” that we held it constitutionally required that every defendant who faces the possibility of incarceration be afforded counsel. Argersinger v. Hamlin, 407 U. S. 25 (1972); Gideon v. Wainwright, 372 U. S. 335, 345 (1963). Once counsel is appointed, the day-to-day conduct of the defense rests with the attorney. He, not the client, has the immediate — and ultimate — responsibility of deciding if and when to object, which witnesses, if any, to call, and what defenses to develop. Not only do these decisions rest with the attorney, but such decisions must, as a practical matter, be made without consulting the client. 1 The trial process simply does not permit the type of frequent and protracted interruptions which would be necessary if it were required that clients give knowing and intelligent approval to each of the myriad tactical decisions as a trial proceeds. 2 *94 Since trial decisions are of necessity entrusted to the accused’s attorney, the Fay-Zerbst standard of “knowing and intelligent waiver” is simply inapplicable. The dissent in this case, written by the author of Fay v. Noia , implicitly recognizes as much. According to the dissent, Fay imposes the knowing-and-intelligent-waiver standard “where possible” during the course of the trial. In an extraordinary modification of Fay , Mr. Justice Brennan would now require “that the lawyer actually exercisfe] his expertise and judgment in his client’s service, and with his client’s knowing and intelligent participation where possible”; he does not intimate what guidelines would be used to decide when or under what circumstances this would actually be “possible.” Post, at 116. (Emphasis supplied.) What had always been thought the standard governing the accused’s waiver of his own constitutional rights the dissent would change, in the trial setting, into a standard of conduct imposed upon the defendant’s attorney. This vague “standard” would be unmanageable to the point of impossibility. The effort to read this expanded concept into Fay is to no avail; that case simply did not address a situation where the defendant had to look to his lawyer for vindication of constitutionally based interests. I would leave the core holding of Fay where it began, and reject this illogical uprooting of an otherwise defensible doctrine. Only such basic decisions as whether to plead guilty, waive a jury, or testify in one’s own behalf are ultimately for the accused to make. See ABA Project on Standards for Criminal Justice, The Prosecution Function and Defense Function §5.2, pp. 237-238 (App. Draft 1971). One is left to wonder what use there would have been to an objection to a confession corroborated by witnesses who heard Sykes freely admit the killing at the scene within minutes after the shooting. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9426922. Public record. Not legal advice.