Amicus Curiae Brief — Wright v. West

Supreme Court, US.

Ces: ee

| JAN 30 3992

No. 91-542 | OFFICE OF THE Chak f

a aia a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 199]

Eriis B. Wricht, Jr., Warden, et al.

Petitioner,

Vs,

FRANK ROBERT WEST, JR..

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITIONER

KENT S. SCHEIDEGGER

Criminal Justice Legal Fdn.

2131 L Street (95816)

Post Office Box 1199

Sacramento, California 95812

Telephone: (916) 446-0345

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

QUESTION PRESENTED

In determining whether to grant a petition for a writ of

habeas corpus by a person in custody pursuant to the judgment

of a state court, should a federal court give deference to the

state court’s application of law to the specific facts of the peti-

tioner’s case or should it review the state court’s determination

de novo?

(i)

TABLE OF CONTENTS

CES eT eer a pe sconce eeccsrccceccs i

ec cer ese peccvecevecereascces Vv

Sous eke ceerecenctcesecess l

as he ce 6 be che c ee cescevess 2

CEU ECE Paces ebecceeseerccccocccecccs 2

I

The historical “Great Writ” was not an instrument of

collateral attack on felony convictions ............ 2

tec sewed sek sesescce 2

i Gee PUMUOUUEEID CROES ow. cece cee 4

C. Post-Reconstruction cases ............ 6

II

Mandatory de novo review is not the true holding of Brown v.

Allen and has not been codified since then ....... 10

SN GI occ ccc ccc cccce 10

eee Uke ses sks eee « 14

C. Post-Brown developments ............ 17

ee 18

Ill

Changes in the law and the nation since Brown vy. Allen call

Ess eek 55666 se se ccececccce 21

A. The scope of “constitutional” claims ... 21

B. The availability of counsel ........... 22

(iii)

iv

C. Acceptance of federal authority .......

D. Supposed superiority of federal courts . .

IV

The rule of Salinger/Hawk should be restored, with

additional guidance, denying reconsideration for

most “mixed questions” ..........ccceeccceees

a Oe AT va WR ne oI olan cn AER SL SUE er

TABLE OF AUTHORITIES

Cases

Adamson v. Ricketts, 865 F. 2d 1011 (CA9 1988) ...... 24

Allen v. Hardy, 478 U. S. 255, 92 L. Ed. 2d 199,

SE RE och thee eeaccinksewncass 28

Amalgamated Clothing Workers v. Richman Bros. Co.,

348 U.S. 511, 99 L. Ed. 600, 75 S. Ct. 452 (1955) .. 24

Arizona v. Fulminante, 113 L. Ed. 2d 302,

Pe Es SEEN ie ccSccecceccceunenuns 26, 27

Batson v. Kentucky, 476 U. S. 79, 90 L. Ed. 2d 69,

Ss EEE 66. 6.66 05 cee esdaundectces 28

Benton v. Maryland, 395 U. S. 784, 23 L. Ed. 2d 707,

PF Oe I xe o sc cdndecessucakuneeus 21

Blair v. McCarthy, 881 F. 2d 602 (CA9 1989) ......... 25

Brass Crosby’s Case, 3 Wils. 189,

Se GN MTP CREPES cccccsccccscesees 4,5,6

Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469,

73 S. Ct. 397 (1953) ..... 3, 7, 11, 14, 15, 16, 19, 21, 26

Brown v. Mississippi, 297 U. S. 278, 80 L. Ed. 682,

Pp ee EE 6k 6 cn aes Kei ecees as es 27

Burdett v. Abbott, 14 East 1, 104 Eng. Rep. 501 (1811). 4, 6

Bushell’s Case, Vaughan 135,

124 Eng. Rep. 1006 (1670) .................. 3,6

Butler v. McKellar, 494 U. S. 407, 108 L. Ed. 2d 347,

Fae We eee NOU pa oddccccsestases 17, 21, 23

Coleman v. Thompson, 115 L. Ed. 2d 640,

ee rere rere 3, 17, 25, 29

Cooper v. Aaron, 358 U. S. 1, 3 L. Ed. 2d 5,

Pe es PE 6 5 66-0 4045 bab oo b4e cea er 23

Cross v. United States, 145 U. S. 571, 36 L. Ed. 821,

Se Dy oc o6 G6 4% 6645944 58545006%% 8

Douglas v. California, 372 U. S. 353, 9 L. Ed. 2d 811,

ee ore ba eng ce ira eaaee sd 22, 29

Duckworth v. Eagan, 492 U. S. 195, 106 L. Ed. 2d 166,

ee ED 0-0 0605666550545 24K Sas 21

Estelle v. McGuire, 60 U. S. L. W. 4015 (1991) ...... 24, 25

Estes v. Texas, 381 U. S. 532, 14 L. Ed. 2d 543,

ee ES ote ecu ds 0s 6 o's-0'0 50% 23

Ex parte Bollman, 4 Cranch (8 U. S.) 75,

I ere ee eee errr 4,6

Ex parte Cuddy, 40 F. 62 (C.C.S.D. Cal. 1889) ...... 11, 28

Ex parte Frank, 235 U. S. 694, 59 L. Ed. 429,

ee oe oe ee 10

Ex parte Hawk, 321 U. S. 114, 88 L. Ed. 572,

Oe Oe ee EP TD o's 0 asc ccecccssces 12, 13, 19, 26

Ex parte Kearney, 7 Wheat. (20 UV. S.) 38,

ee es IS ie oh oe hon tw howe non 4,5

Ex parte Lange, 18 Wall. (85 U. S.) 163,

iE 4 6 Wis 65 Aone eens sane b0 8

Ex parte Royall, 117 U. S. 241, 29 L. Ed. 868,

ee es on hee aces ub ieeeess ex 8, 25

Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717 (1880) .... 8

Ex parte Watkins, 3 Pet. (28 U.S.) 193,

FD sccasebeseeeecscdcecnwncs a3

Ex parte Watkins, 7 Pet. (32 U. S.) 568,

i EE kan C5 a ea ciee ke Bae eee nes 5

Ex parte Wilson, 114 U. S. 417, 29 L. Ed. 89,

RUIN so oo davevascpsieceve odeecs 8

: Pe ht RN aoe

Vii

Fay v. Noia, 372 U. S. 391, 9 L. Ed. 2d 837,

ge en ene 3, 7,17

Francis v. Franklin, 471 U. S. 307, 85 L. Ed. 2d 344,

WP Ge Ms BOP CUUUOD oc cc ccccccceccccccncees 22

Frank v. Mangum, 237 U. S. 309, 59 L. Ed. 969,

et ae 10, 12, 21

Gideon v. Wainwright, 372 U. S. 335, 9 L. Ed. 2d 799,

Py PI ob iv bw aav ene aucee skies cc 22

Hawk v. Olson, 326 U. S. 271, 90 L. Ed. 61,

Pe es IS hus nud oo oea vac eede cece 14

Helvering v. Hallock, 309 U. S. 106, 84 L. Ed. 604,

ON Oe II sone ces dvcavuavcssivcees 20

House v. Mayo, 324 U. S. 42, 89 L. Ed. 739,

cide thee ag A 14, 29

In re Winship, 397 U. S. 358, 25 L. Ed. 2d 368,

SF a Se CUNO 5 wav cb cce-essseccéceceas 22

In re Wood, 140 U. S. 278, 35 L. Ed. 505,

FU a Os UO 40's 000 cb veeesecucs 8, 9, 10, 19

Irvin v. Dowd, 366 U. S. 717, 6 L. Ed. 2d 751,

es hp dl RE 16

Jackson v. Virginia, 443 U. S. 307, 61 L. Ed. 2d 560,

PE TIS ix 6 600s bs a4 do Seiwa ccs 30

King v. Suddis, 1 East 306, 102 Eng. Rep. 119 (1801) .... 4

Kuhlmann v. Wilson, 477 U. S. 436, 91 L. Ed. 2d 364,

Pe a le SED ono wb bcs en vee edeueeess 24

Lewis v. Jeffers, 111 L. Ed. 2d 606,

POP es CO NUTOED ov ec cede cevecevecsecece 24

Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081,

We aR PUNE a wo no's 6a 5% ou cab oer cans 21

viii

McCleskey v. Zant, 113 L. Ed. 2d 517,

Be Oe a PEO 66 oc cbc ewe te cctdccces 25, 26

Miller v. Fenton, 474 U. S. 104, 88 L. Ed. 2d 405,

Bee ah Gs GP Es 6 06 6c ee ce eesssces 17, 27, 28

Moore v. Dempsey, 261 U. S. 86, 67 L. Ed. 543, |

Pe Ss Se 6c cee scceeceséene ces 11, 21, 25

Morrison v. California, 291 U. S. 82, 78 L. Ed. 664,

Pe eh a EE 6 6.5 00680 de deeeedeeeccnibe 22

Murray v. Carrier, 477 U. S. 478, 91 L. Ed. 2d 397,

See es EEE 6. o's Sic ccc seeusesecedsees 25

New York v. Eno, 155 U. S. 89, 39 L. Ed. 80,

fe | eT Trae Tee eee 16

Palko v. Connecticut, 302 U. S. 319, 82 L. Ed. 289,

Et Gk PUR Gout een eeeeen pawecsceuter 21

Pennsylvania v. Finley, 481 U. S. 551, 95 L. Ed. 2d 539,

ey A UE Gas os S0 08 Un ceedeeens 8% 29

Penry v. Lynaugh, 492 U. S. 302, 106 L. Ed. 2d 256,

ee EE vc cau Vevetees 6c d8a0% 20% 26

Pickelsimer v. Wainwright, 375 U.S. 2, 11 L. Ed. 2d 41,

PE es SP Ce esac evkasceeeereten eves’ 27

Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158,

Re ef PEE TTT TTT Yerereree 27

Pulley v. Harris, 465 U. S. 37, 79 L. Ed. 2d 29,

ee ED nou cc cssebuvnnseeaneseese 24

Rose v. Lundy, 455 U. S. 509, 71 L. Ed. 2d 379,

ee a SOU Ss Access cdonessens 22, 25, 26

Salinger v. Loisel, 265 U. S. 224, 68 L. Ed. 989,

PE SE ho ccshhehneeeenee Nes 11, 12, 26

Sandstrom v. Montana, 442 U. S. 510, 61 L. Ed. 2d 39,

ry PE 056 44 ce cnc useese0seeens 22

ix

Sawyer v. Smith, 111 L. Ed. 2d 193,

a ee eee es 23

Spies v. Illinois, 123 U. S. 131, 31 L. Ed. 80,

a ED ch Wass ceetkce keds Noneeo's 10

Stone v. Powell, 428 U. S. 465, 49 L. Ed. 2d 1067,

OD GB. Ge, Baer COOP wv ecccccccsces 18, 19, 21, 23, 26

Strickland v. Washington, 466 U. S. 668, 80 L. Ed. 2d 674,

ee eT eres ea eee eee 27

Sunal v. Large, 332 U. S. 174, 91 L. Ed. 1982,

ee ee ED 6 Vib Wad hs Sh os bso ews 30

Teague v. Lane, 489 U. S. 288, 103 L. Ed. 2d 334,

er es Do '4 50 0's 50's 0 0 8 068 eee 17

Tinsley v. Anderson, 171 U. S. 101, 43 L. Ed. 91,

oe ke oe ree 8

Vasquez v. Hillery, 474 U. S. 254, 88 L. Ed. 2d 598,

Se Ge Ee Os kes bbcesd cas dweaean eke 28

Wainwright v. Goode, 464 U. S. 78, 78 L. Ed. 2d 187,

on Be re re eee ee eee Cee 24

Wainwright v. Sykes, 433 U. S. 72, 53 L. Ed. 2d 594,

cy re ee ee ere 17

Walton v. Arizona, 111 L. Ed. 2d 511,

er rer ra ere 24

Wilson v. United States, 162 U. S. 613, 40 L. Ed. 1090,

Pe Ge ED aa he cde ceeceuevauccwnnes 30

Wong Doo v. United States, 265 U. S. 239, 68 L. Ed. 999,

ee: Se 665i 0b 50a eae nn dsndaews ees 12

Yist v. Nunnemaker, 115 L. Ed. 2d 706,

a ee EE 5 cea ks ASA ease beeen e es 29

United States Constitution

ee ee 5 TTT eee COTTE eee TOT eT 4

i ee A Br PA ke ee pctcena dedeneweees 20

United States Statutes

ee Oe ee EE ova WS sb Sh eee nee evecsesens 29

er eT ee eee eT Tere Ee 11, 26

es SE A ove act ecetsceaowescnearees 10

Act of Feb. 15, 1867, 14 Stat. 385, ch. 28 ............ 7,8

Judiciary Act of 1789, 1 Stat. 73, ch. 2D... ww ee eees 7

Other Statutes

Habeas Corpus Act of 1679, 31 Car. 2,ch.2 ........... 3

PE DM OE oo ee 556 650005505080 ce tC eeen en 7

Treatises

W. Blackstone, Commentaries ..........0..004455 2, 3, 6

pe. Fenee, Fasas af Gee Comes (17SB) . ww. cc ccc ccc sece 3

R. Hurd, A Treatise on the Right of Personal Liberty and on

the Writ of Habeas Corpus (2d ed. 1876) .......... 7

Miscellaneous

Baer I SEINE 6 oo wen eunn«dWbdcad tw'die's 20

1988 Annual Report of the Ninth Circuit 56 ........... 24

Advisory Committe Note to Rule 4 of Rules

Governing Section 2254 Cases in the United

SE ED vec n oe Maciictasveceeses 28

Bator, Finality in Criminal Law and Federal Habeas Corpus

for State Prisoners, 76 Harv. L. Rev. 441 (1963) .. 10, 11

The Federalist No. 48 (Madison) (Rossiter ed. 1961) .... 20

a

xi

Friendly, Is Innocence Irrelevant? Collateral

Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142

SE 660s du cae euees Keke ede Ciceckchesees 2, 21

H.R. Rep. No. 1471, 94th Cong., 2d Sess., reprinted in 1976

U. S. Code Cong. & Admin. News 2478 ......... 19

Judicial Council of California, 7988 Annual Report 43 ... 24

W. Rehnquist, 199] Year-End Report on the Federal

TE 0G 54 660 Sho 00056404 SANE ERR ees 20

Revision note to 28 U. S. C. § 2254, 415 (1988 ed.) ..... 19

L. Sobel, Civil Rights 1960-1961 (1967) ...........45. 23

Statement of President George Bush Upon Signing S. 3266,

1990 U. S. Code Cong. & Admin. News, 101st Cong.,

es IE ASS Sad vc eeeceSdeecesceceneswe 19

The U. S. Supreme Court 1989-90 Term, 47 B.N.A.

CA De CUED 666 6.5.06.6.006 05680008 ous 23

The U. S. Supreme Court 1990-91 Term, 49 B.N.A.

ee REET TREE LUL Eee e Tee 23

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

E.uis B. WRIGHT, JR., Warden, et al.,

Petitioner,

AY

FRANK ROBERT WEST, JR.,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITIONER

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)! is a non-

profit California corporation organized to participate in litiga-

tion relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the constitutional protec-

tions of the accused into balance with the rights of victims and

of society to rapid, efficient, and reliable determination of guilt

and swift execution of punishment.

The present case involves the extended relitigation of a

claim already fully and fairly litigated in the state courts. Such

unnecessary relitigation is contrary to the rights of victims and

society which CJLF was formed to advance.

1. Both parties have consented in writing to the filing of this brief.

Nm

SUMMARY OF ARGUMENT

The use of habeas corpus to relitigate de novo claims of

trial error already considered on appeal is not justified by the

common law, the Constitution, or the Habeas Corpus Act of

1867. It is entirely a judicial creation of the twentieth century.

Neither precedent nor legislative inaction justifies its reten-

tion.

De novo review of application of law to the facts should be

reserved for truly fundamental claims, such as coerced confes-

sion, mob domination of trials, and denial of counsel. Other

claims, including sufficiency of the evidence, should not be

relitigated if the state courts have fairly reached a conclusion

on which reasonable judges can differ.

ARGUMENT

I. The historical “Great Writ” was not an instrument of

collateral attack on felony convictions.

Suggesting that habeas corpus be limited, as we will below,

invariably produces a vehement reaction. “Any murmur of

dissatisfaction with [collateral attack on convictions] provokes

immediate incantation of the Great Writ, with the inevitable

initial capitals, often accompanied by a suggestion that the

objector is the sort of person who would cheerfully desecrate

the Ark of the Covenant.” Friendly, /s Innocence Irrelevant?

Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev.

142, 142 (1970). Before turning to the particular question at

hand, then, it may be best to note a frequently overlooked

aspect of the writ. Habeas corpus as we know it is vastly dif-

ferent in both purpose and function from the procedure on

which Blackstone heaped his famous praise. See 3 W. Black-

stone, Commentaries *131.

A. Common Law.

Habeas corpus earned its hallowed place in history as a

judicial protection against illegal detentions by the executive.

See id., at *134; see also Brown v. Allen, 344 U. S. 443, 533

(1953) (Jackson, J., concurring in the judgment). However,

the principal use of habeas corpus in routine criminal cases

was to review the decision to commit the accused before trial.

Hale places his entire discussion of habeas corpus under the

heading of bail. See 2 M. Hale, Pleas of the Crown 143-148

(1736). The celebrated Habeas Corpus Act of 1679, 31 Car. 2,

ch. 2 was passed for the benefit of persons “committed for

criminal or supposed criminal Matters” who had been denied

release on bail “in such Cases where by Law they are

Bailable.” Jd., preamble. The Act’s principal reform expressly

excluded from its operation “Persons Convict or in Execution

by legal Process.” /d., § 3; Ex parte Watkins, 3 Pet. (28 U. S.)

193, 202 (1830).

Bushell’s Case, Vaughan 135, 124 Eng. Rep. 1006 (1670) is

often cited with vigor as authority for the proposition that

habeas corpus could be used as a collateral attack. See, e.g.,

Fay v. Noia, 372 U. S. 391, 404-405 (1963), overruled on other

grounds in Coleman v. Thompson, 115 L. Ed. 2d 640, 669, 111

S. Ct. 2546, 2565 (1991). However, Bushell’s Case was unusual

in several respects, and it was not followed for such a broad

proposition.

The first and most obvious distinction was that Bushell’s

Case was a contempt proceeding and not a trial for a crime.

The Bushell Court itself emphatically distinguishes the two

situations. Vaughan, at 142-143, 124 Eng. Rep., at 1009-1010.

The essential difference between the two was that a person

accused of a crime had a remedy in trial by jury, ibid., and the

Bushell Court had great confidence in the English institution

of jury trial.“

2. Indeed, the main point of Bushell’s Case was preserving that institution.

Bushell was a juror held in contempt for bringing in the “wrong” verdict.

Id., at 135-136.

The second distinction was that Bushell had been commit-

ted by the Court of Oyer and Terminer, which was an inferior

court within the English judicial structure. In Brass Crosby’s

Case, 3 Wils. 189, 195, 95 Eng. Rep. 1005 (1771), counsel cited

Bushell’s Case to no avail. Crosby had been committed for

contempt by the House of Commons, which the Court of

Common Pleas considered a coordinate court for this purpose.

“{T]heir adjudication is a conviction, and their commitment in

consequence, is execution; and no Court can discharge or bail a

person that is in execution by the judgment of any other Court.”

Id., at 199 (emphasis added). Justice Blackstone concurred,

stating “for if they have power to decide; they ought to have

the power to punish: no other Court shall scan the judgment of

a Superior Court.” Id., at 204.

King v. Suddis, 1 East 306, 102 Eng. Rep. 119 (1801) con-

firms that habeas was not available to collaterally attack a

judgment of conviction by a competent court. Lord Chief Jus-

tice Ellenborough’s comments during argument in Burdett v.

Abbott, 14 East 1, 63-73, 104 Eng. Rep. 501 (1811) indicate

that Bushell’s Case was not read as broadly as its wording

might imply.

B. Early American Cases.

In the United States, the writ of habeas corpus was a part

of our heritage and was protected against suspension in the

Constitution. U.S. Const. art. I, § 9. For the content of the

privilege of habeas corpus, our courts looked to that common

law heritage. Ex parte Bollman, 4 Cranch (8 U. S.) 75, 93-94

(1867). Because Bollman involved a pretrial writ, id., at 76,

the decision in that case did not involve a conflict with a judg-

ment of another court, but only with a preliminary decision to

commit. The Supreme Court’s decision to go to the merits of

the case de novo, therefore, did not conflict with the common

law rule.

Ex parte Kearney, 7 Wheat. (20 U. S.) 38 (1822), on the

other hand, did involve a judgment by the circuit court. Kear-

ney had been held in contempt, and his attorney cited Bollman

and Busheil’s Case for the proposition that the Supreme Court

could review this decision on habeas corpus. /d., at 40. Justice

Story, writing for a unanimous Court, rejected the argument

and followed Brass Crosby’s Case, supra. 7 Wheat., at 43. The

Supreme Court at that time had no jurisdiction to revise the

judgment of the circuit court directly, and would not do so

indirectly. Id., at 42. Justice Story notes that if a conviction

for a criminal offense had been under attack “it could hardly

be maintained” that a court with no jurisdiction to hear an

appeal from that conviction could revise it on habeas corpus.

Id., at 43.

That precise question arose in Ex parte Watkins, 3 Pet. (28

U.S.) 193 (1830). “An imprisonment under a judgment can-

not be unlawful unless that judgment be an absolute nullity;

and it is not a nullity, if the court has general jurisdiction of the

subject, although it should be erroneous,” Chief Justice Mar-

shall wrote for a unanimous Court. J/d., at 203. Watkins distin-

guished Bollman as not involving a judgment of a court and

followed Kearney in refusing to reconsider the merits. /d., at

208.

After serving the jail portion of his sentence, Watkins was

kept in jail, purportedly under writs of capias ad satisfacien-

dum issued to collect the fines assessed against him. Ex parte

Watkins, 7 Pet. (32 U. S.) 568, 571 (1833). He returned to the

Supreme Court with two complaints: that the fine was exces-

sive and that his continued detention was not authorized by

the writs.

Justice Story, writing for the Court, dispatched the first

objection in a single paragraph. Even though the habeas peti-

tion raised a specific constitutional objection going directly to

the constitutionality of his sentence, the Court’s lack of appel-

late jurisdiction over the case precluded it from revising the

judgment on habeas corpus. /d., at S574. Watkins was dis-

charged, however, because his continued detention after the

return date of the capias writ was not authorized by that writ.

Id., at 578-579.

There is an undercurrent in these old authorities that runs

throughout the history of habeas corpus. The availability of

the writ to a person committed by a judicial officer depends on

the degree of confidence which courts have in that officer and

in other means of review.

Accused persons could be committed for trial by justices of

the peace. 4 W. Blackstone, Commentaries *296. Because

these officials were not necessarily learned in the law, see 1

Blackstone, at *352-353 (qualifications), it was obviously nec-

essary to have some method of review of pretrial commit-

ments, and such review was the usual function of habeas cor-

pus.

Bushell’s Case, supra, clearly distinguishes contempts from

criminal cases on the basis of confidence in the jury system.

Vaughan, at 142-143. Lord Ellenborough further distinguish-

es inferior from superior court contempt judgments. Burdett v.

Abbott, supra, 14 East, at 73. Again, the difference is confi-

dence. “It is a confidence, that may, with perfect safety and

security, be reposed in the Judges [of superior courts]... .”

Brass Crosby's Case, supra, 3 Wils., at 204 (Blackstone, J.,

concurring).

The early Supreme Court habeas cases reflect Congress's

decision as to which determinations were subject to review. In

Bollman, supra, 4 Cranch, at 99-100, the Court noted that

Congress had expressiy authorized the Supreme Court to

make pretrial detention decisions. In Kearney and Watkins, on

the other hand, the fact that Congress had decided to repose

confidence in the circuit courts to render unappealable final

judgments was decisive.

C. Post-Reconstruction Cases.

The rule of Kearney and Watkins was not limited to federal

practice. It was the general rule throughout the United States

in the mid-nineteenth century that a court could not revise

indirectly through habeas corpus a judgment which it had no

power to revise directly on appeal.

“A superior court, in the exercise of its revisory juris-

diction, may discharge a prisoner held under criminal

es

process, where the commitment is voidable only, or

where the grounds of commitment are insufficient; but

to justify this it must have, by its constitution, appellate

jurisdiction in the given case, and should exert its cor-

rective power through process designed to bring under

review the errors complained of, or the grounds of

commitment.

“Ist. The court issuing the writ in such cases must be

clothed with a supervisory power in the given case.

“It is not enough that it is a court of more extensive ju-

risdiction or of higher dignity; it must have the power of

revision in the particular case; the power to correct or

reverse the action of the inferior court.” R. Hurd, A

Treatise on the Right of Personal Liberty and on the

Writ of Habeas Corpus 348-349 (2d ed. 1876) (empha-

sis added, footnote omitted).

This contemporary understanding of the law of habeas

corpus must be kept in mind when considering the Habeas

Corpus Act of 1867. By its terms, the Act merely extends ju-

risdiction to state prisoners, removing a limitation in the Judi-

ciary Act of 1789. 14 Stat. 385, ch. 28, § 1; cf. 1 Stat. 73, 81-82,

ch. 20, § 14. If Congress really intended to abrogate the rule

of Kearney and Watkins and make habeas a substitute for

appeal, it is exceedingly odd that it did not say so. Brown v.

Allen, 344 U. S. 443, 533 (1953) (Jackson, J., concurring in the

judgment); Fay v. Noia, 372 U. S. 391, 452 (1963) (Harlan, J.,

dissenting).*

The scope of federal habeas corpus did expand in the late

nineteenth century, but not in state prisoner cases under the

1867 act. The major expansion of habeas review came in cases

3. Congress did modify the common law rule by permitting the petitioner

to contest the facts stated in the return. This statutory modification

follows one adopted by Parliament in 1816, 56 Geo. 3, ch. 100, § 3, and

in numerous states. See Hurd, supra, at 273-288.

8

involving federal prisoners. The real reason for the expansion

was an absence of other remedies.

The same act that gave federal courts habeas jurisdiction

for state prisoners also gave the Supreme Court appellate ju-

risdiction over federal questions in state criminal cases. 14

Stat. 386-387, ch. 28, § 2. Yet the Supreme Court still had no

general criminal appellate jurisdiction in federal cases. See

Cross v. United States, 145 U.S. 571, 574 (1892).

The Supreme Court extended an effective appellate juris-

diction over the circuit courts in a limited class of cases

through a strained interpretation of what was a “jurisdictional”

defect. Ex parte Lange, 18 Wall. (85 U.S.) 163, 176 (1873)

held that imposition of both a fine and imprisonment, under a

statute authorizing only one or the other, was jurisdictional.

Ex parte Siebold, 100 U. S. 371, 376-377 (1879) held that the

constitutionality of the statute creating the offense was juris-

dictional and subject to review on habeas. Ex parte Wilson,

114 U.S. 417, 429 (1885) held that trial for an “infamous”

crime without an indictment was a jurisdictional defect.

At the same time the Supreme Court was expanding quasi-

appeilate review in cases where there was no direct appeal,

however, the Court was shutting down habeas corpus in cases

where an appeal was available. The mechanism for this limita-

tion was the exhaustion doctrine. Although federal courts had

the power to consider federal questions on habeas corpus,

they should refrain from doing so until appellate remedies

were exhausted. Ex parte Royall, 117 U.S. 241, 250-253

(1886). The remedies to be exhausted included the writ of |

error to the Supreme Court, Tinsley v. Anderson, 171 U. S.

101, 105-106 (1898), with the result that there was gencrally

nothing left to litigate. Full exhaustion of remedies resulted in

a ruling on the federal questions from the highest court.

Once again, we see confidence in the primary remedy as

the driving force behind the denial of relitigation on habeas.

In In re Wood, 140 U. S. 278 (1891), the issue was whether

there had been racial discrimination in the selection of juries.

That question

“was a question which the trial court was entirely

competent to decide, and its determination could not

be reviewed by the Circuit Court of the United States

upon a writ of habeas corpus without making that writ

serve the purposes of a writ of error. No such authority

is given to the Circuit Courts of the United States by the

statutes defining and regulating their jurisdiction. It

often occurs in the progress of a criminal trial in a state

court, proceeding under a statute not repugnant to the

Constitution of the United States, that questions occur

which involve the construction of that instrument and

the determination of rights asserted under it. But that

does not justify an interference with its proceedings by

a Circuit Court of the United States, upon a writ of

habeas corpus sued out by the accused either during or

after the trial in the state court. For ‘upon the state

courts, equally with the courts of the Union, rests the

obligation to guard, enforce and protect every right

granted or secured by the Constitution of the United

States and the laws made in pursuance thereof, when-

ever those rights are involved in any suit or proceeding

before them;’ and ‘if they fail therein, and withhold or

deny rights, privileges or immunities secured by the

Constitution and laws of the United States, the party

aggrieved may bring the case from the highest court of

the State in which the question could be decided to

this court for final and conclusive determination.’

Robb v. Connolly, 111 U.S. 624, 637.” Id., at 286

(emphasis added).

Contrary to popular myth, de novo review of convictions on

habeas corpus is not a legacy of the common law, is not man-

dated by the Suspension Clause, and was not commanded by

Congress in 1867. It is a judicial creation of the twentieth

century, and whether it should continue depends on the con-

tinuing existence of the circumstances which brought it about.

To that development we now turn.

10

II. Mandatory de novo review is not the true holding of

Brown v. Allen and has not been codified since then.

A. Pre-Brown Cases.

In the early twentieth century, the availability of primary

remedies was altered. The change came partly by growth of

the country and partly by statutory revision. The writ of error

was supposed to issue in all cases within the Supreme Court's

jurisdiction, unless the decision below “was so plainly right as

to not require argument. ...” Spies v. Illinois, 123 U.S. 131,

164 (1887). Yet in later cases, the writ was denied even

though clearly arguable questions were present. Compare Ex

parte Frank, 235 U.S. 694 (1914) with Frank v. Mangum, 237

U. S. 309 (1915). In 1915, Congress made it official. It rele-

gated federal questions other than the validity of statutes to

the Court’s discretionary certiorari jurisdiction. 39 Stat. 727,

ch. 448, § 2.

Earlier that same year, the Supreme Court decided Frank v.

Mangum, supra. Although Frank is widely regarded as having

narrowed habeas corpus, the decision in fact widened it. Ba-

tor, Finality in Criminal Law and Federal Habeas Corpus for

State Prisoners, 76 Harv. L. Rev. 441, 486-487 (1963). The

question of whether the jury was really subject to the influence

of a hostile crowd was not “jurisdictional” even within the

broad definition of Lange, Siebold, and Wilson.

The Frank Court implicitly accepts the proposition that if

Frank’s allegations were true habeas relief would be proper, a

departure from the rule of Jn re Wood, 140 U. S. 278, 286

(1891). The Frank decision rests instead on the state court's

determination of the historical facts against Frank, which

“must be taken as setting forth the truth of the matter, certain-

ly until some reasonable ground is shown for an inference that

the court... was wanting in jurisdiction, or at least erred in

the exercise of its jurisdiction. ...” 237 U.S., at 336.

This is a rule of partial but not complete deference by the

habeas court. Frank expressly left open the possibility that the

determination might be reopened on a sufficient showing. /d.,

1]

at 334. Frank deals with historical fact determinations because

that is the kind of determination involved in the case. As to

such determinations, the rule of partial deference has since

been codified, with embellishments, by Congress. See 28

U.S. C. § 2254(d). It was also accepted by the opinion which

launched the rule of de novo redetermination of “mixed ques-

tions.” Brown v. Allen, 344 U.S. 443, 506 (1953) (opinion of

Frankfurter, J.). Yet nothing in the logic of Frank or the other

cases leading up to Brown justifies a distinction between fact

and law.

Moore v. Dempsey, 261 U. S. 86. 91 (1923) accepted Frank

as a precedent but found that an investigation into the facts

was required in that case. The reason for distinguishing Frank

is not entirely clear from Justice Holmes’ brief opinion. It may

have been the magnitude of the mob domination alleged, sce

Brief Atmicus Curiae of Criminal Justice Legal Foundation in

Keeney v. Tamayo-Reyes, No. 91-1859, at 9, or it may have

been the absence of any careful, reasoned state decision, see

Bator, supra, 76 Harv. L. Rev., at 488-489.

While Frank and Moore struggled with prior adjudication in

state court, a second line of cases developed dealing with prior

adjudications in an earlier federal habeas petition. This other

road led to the same destination: a rule of deference but not

absolute preclusion.

The series begins with Ex parte Cuddy, 40 F. 62 (C.C.S.D.

Cal. 1889), an opinion by Justice Field as circuit justice regard-

ing a second application for habeas corpus after denial of the

first. Justice Field held that, because appeal had been made

available in habeas cases, a prior, full consideration may be

sufficient by itself to justify denial of the second petition. /d.,

at 65-66.

Shortly after the Supreme Court decided Moore, it fully and

unanimously adopted Cuddy in Salinger v. Loisel, 265 U.S. 224

(1924). Acknowledging that res judicata was not fully applica-

ble, Salinger held that a prior adjudication nonetheless had

weight. /d., at 230. Appellate review of both habeas denials

and criminal convictions reduced the need for relitigation on

12

habeas corpus. /d., at 231.

Salinger then construed the statutory language “to dispose

of the party as law and justice may require.” bid.

“A study of the cases will show that this has been con-

strued as meaning that each application is to be dis-

posed of in the exercise of a sound judicial discretion

guided and controlled by a consideration of whatever

has a rational bearing on the propriety of the discharge

sought. Among the matters which may be considered,

and even given controlling weight, are (a) the existence

of another remedy, such as a right in ordinary course to

an appellate review in the criminal case, and (b) a prior

refusal to discharge on a like application.” /bid.

(emphasis added).

The cases cited for this conclusion are a mixture of state-

prisoner and federal-prisoner cases, ibid., indicating no distinc-

tion between prior adjudications in state or federal courts.

The Salinger Court states that a refusal to discharge based

solely on a prior refusal by a court of coordinate jurisdiction

would be affirmed. /d., at 232.

Wong Doo v. United States, 265 U. S. 239, 241 (1924) held

that under the circumstances of that case “controlling weight

must have been given to the prior refusal.” (Emphasis added).

The rule of Salinger was therefore not always discretionary.

In Ex parte Hawk, 321 U.S. 114 (1944), the Court attempt-

ed to clear up the confusion surrounding habeas corpus.

Hawk was decided on the question of exhaustion, see id., at

118, but exhaustion and deference to the prior decision after

exhaustion are closely related questions. Frank v. Mangum,

supra, 237 U.S., at 336. Whether dictum or holding, the lan-

guage of Hawk on deference to prior adjudication is enlighten-

ing.

“Where the state courts have considered and adjudi-

cated the merits of his contentions, and this Court has

13

either reviewed or declined to review the state court’s

decision, a federal court will not ordinarily re-examine

upon writ of habeas corpus the questions thus adjudi-

cated. Salinger v. Loisel, 265 U. S. 224, 230-232. But

where resort to state court remedies has failed to af-

ford a full and fair adjudication of the federal conten-

tions raised, either because the state affords no reme-

dy, see Mooney v. Holohan, supra, [294 U. S.] 115, or

because in the particular case the remedy afforded by

state law proves in practice unavailable or seriously

inadequate, cf. Moore v. Dempsey, 261 U. S. 86, Ex

parte Davis, 318 U.S. 412, a federal court should en-

tertain his petition for habeas corpus, else he would be

remediless.” 321 U. S., at 118 (emphasis added).4

The phrase “in practice unavailable or seriously inade-

quate” implies something more serious t in disagreement with

the state court’s reasonable conclusion. Hawk seems to recon-

cile Frank and Moore on their facts on the basis later suggested

by Professor Bator: that the state court in Frank had made a

careful, reasoned determination, but the state court in Moore

had not.

Hawk's citation of Salinger is particularly significant, be-

cause it reinforces the connection between the successive

federal petition line of cases and the prior state adjudication

decisions. The prior state proceeding, in other words, is enti-

tled to the same degree of respect as a prior federal court

proceeding. Federal habeas corpus review, whether on the

first or second petition, should be made available when other

remedies are unavailable or inadequate. It should not be used

to relitigate points already fairly decided by a competent court.

Reconsideration is the exception. Refusal to reconsider is the

rule.

4. Mooney and Davis are both exhaustion cases where the state court

remedy had not been shown to be inadequate or unavailable at the time

of application for the writ.

14

“—— The question of prior state adjudication was squarely pre-

sented in House v. Mayo, 324 U. S. 42 (1945), where the dis-

trict court had denied a petition on the ground that the claim

had been fully and competently litigated in the state courts.

Id., at 47. House expressly acknowledges that the district

court’s deference would have been correct if the state court

had ruled on the merits, citing Hawk, but reversed solely be-

cause the state court decision had been on the ground that the

remedy sought was not available under state law. /d., at 48.

When Henry Hawk returned to the Supreme Court, on cer-

tiorari from denial of state collateral relief, the Court ex-

plained the allocation of responsibilities between the state

courts, the federal habeas courts, and the Supreme Court:

“When the state does not provide corrective judicial

process, the federal courts will entertain habeas corpus

to redress the violation of the federal constitutional

right. White v. Ragen, 324 U. S. 760. When the correc-

tive process is provided by the state but error, in rela-

tion to the federal question of constitutional violation,

creeps into the record, we have the responsibility to

review the state proceedings.” Hawk v. Olson, 326

U.S. 271, 276 (1945).

B. Brown v. Allen.

With this foundation, we come to the landmark case of

Brown v. Allen, 344 U. S. 443 (1953). Justice Reed’s opinion is

the opinion of the Court on all points except the effect of the

prior denial of certiorari. /d., at 451-452. Although Justice

Frankfurter sought to designate part II of the first of his two

opinions as a second majority opinion, id., at 497, it is not des-

ignated as such by the Court. Indeed, it is not fully joined by

any other Justice, although others express a very gencral

agreement. See id., at 488 (Burton and Clark, JJ.) (“recognize

the propriety of the considerations . . . ”); id., at 513 (Black

and Douglas, JJ.) (“agree in substance”).

The opinion of the Court holds that the state court opinion

should not be disregarded as to either fact or law. After deal-

15

ing with independent state grounds and factual determina-

tions, the Court states, “In other circumstances the state adju-

dication carries the weight that federal practice gives to the

conclusion of a court of last resort of another jurisdiction on

federal constitutional issues. It is not res judicata.” Id., at 458.

By itself, this statement is opaque. It is made clear, howev-

cr, by the Court’s later statement that the rule of Salinger ap-

plies to state prisoners. /d., at 463. Nothing in Salinger is lim-

ited to factual determinations, and indeed the issues in that

case were legal rather than factual.

| Because the Salinger rule is one of discretion and not res

judicata, the majority proceeds to look at the merits for the

purpose of reviewing the district court’s “conclusions that

North Carolina accorded petitioners a fair adjudication of

their federal questions.” Jd., at 465 (emphasis added). The

question presented, according to the majority, is “Have peti-

tioners received hearings consonant with standards accepted by

this Nation as adequate to justify their convictions?” Ibid.

(emphasis added).

Where the historical facts are settled and the question is

application of the law to the facts, there is more than one way

to determine that the state courts have provided a “fair adjudi-

cation.” One way is to look at the merits and decide that the

state court’s conclusion is correct. That is what the Brown

te proceeded to do in two of the three cases. /d., at 466-

While agreement with the result is sufficient for concluding

that the state has provided a “fair adjudication,” it does not

follow that agreement is necessary to such a conclusion. It

does not follow that a state court decision with which the fed-

eral court disagrees is necessarily unfair.

wa

The third case, Daniels, was decided on a procedural bar. /d., at 487.

16

Justice Frankfurter takes the majority to task for its

“{vjague, undefined directions permitting the District Court to

give ‘consideration’ to a prior State determination.” /d., at

501. The alternative he proposes, however, is an audacious

revision of the law of habeas corpus, unsupported by any

authority.

“State adjudication of questions of law cannot, under the

habeas corpus statute, be accepted as binding. It is precisely

these questions that the federal judge is commanded to

decide.” Jd., at 506. The only authority given for this remark-

able statement is part Fifth of the same opinion, at 507-508.

Id., n. 19. But that part does not cite one single case involving

federal habeas for state prisoners.

Regarding the anomaly of a federal district court judge set-

ting aside the decision of a state supreme court, Justice Frank-

furter says “it is not a case of a lower court sitting in judgment

on a higher court. It is merely one aspect of respecting the

Supremacy Clause of the Constitution whereby federal law is

higher than State law.” /d., at 510.

This statement is a non sequitur. A state court which disa-

grees with a federal court is not defying the Supremacy Clause

or asserting state law over federal. It is merely disagreeing on

the unresolved question of what the federal law is. See New

York v. Eno, 155 U. S. 89, 98 (1894). While Congress certainly

does have the power to designate the district courts to “express

the higher law” over the reasonable, contrary opinion of the

state supreme courts, see 344 U. S., at 510, it is by no means a

“fact” that Congress has actually done so, cf. ibid.

The real reason for Justice Frankfurter’s position comes at

the end. It is a lack of confidence in the primary remedy.

“Unfortunately, instances are not wanting in which even the

highest State courts have failed to recognize violations of

these precepts that offend the limitations which the Constitu-

tion of the United States places upon enforcement by the

States of their criminal law.” /d., at 511; see also /rvin v.

Dowd, 366 U. S. 717, 729-730 (1961) (Frankfurter, J., concur-

ring).

17

C. Post-Brown Developments.

By the early 1960's, the discretionary rule of Salinger,

Hawk, House, and the Brown majority was forgotten, and Jus-

tice Frankfurter’s opinion was cited as if it were the holding of

the Court. See, e.g., Fay v. Noia, 372 U. S. 391, 422 (1963),

overruled on other grounds in Coleman v. Thompson, 115

L. Ed. 2d 640, 669, 111 S. Ct. 2546, 2565 (1991). Thus the rule

of mandatory de novo review of questions of law and “mixed

questions” slithered sideways into the law. No opinion of this

Court has ever squarely confronted the conflict between the

supposed “rule” of Brown v. Allen and the contrary interpreta-

tion of the statutes in prior cases.

In the past 16 years, some substantial exceptions to the

norm of de novo review have been created or revived. The

jurisdictional rule of procedural default was effectively abol-

ished in Fay v. Noia, supra, but revived in a less severe, nonju-

risdictional form in Wainwright v. Sykes, 433 U. S. 72, 87-88

(1977). Application of new rules of law on habeas was

banned, except for two extremely rare exceptions, in Teague v.

Lane, 489 U. S. 288 (1989). The Teague principle “validates

reasonable, good-faith interpretations of existing precedents

made by state courts ....” Butler vy. McKellar, 494 U. S. 407,

414 (1990).

De novo review has also been curtailed somewhat by a

slightly expanded view of what constitutes a question of fact.

After years of dubious distinctions between cases not really

distinguishable,° Miller v. Fenton, 474 U.S. 104, 114 (1985)

acknowledged that the distinction was often driven by the

result. That is, a question was classified as “factual” or “mix-

ed” according to where the Court believed the primary re-

sponsibility for decision should be allocated “as a matter of the

sound administration of justice.” Jbid.

6. See Brief Amicus Curiae of Criminal Justice Legal Foundation in

Support of the Petition for Certiorari, at 5.

18

The most important existing exception to de novo review of

law application is Stone v. Powell, 428 U. S. 465 (1976). Powell

held that it was an open question “whether exceptions to full

review might exist with respect to particular categories of

constitutional claims,” id., at 478-479, and then proceeded to

create one for Fourth Amendment claims, id., at 481-482.

Powell is based in large part on considerations unique to

the exclusionary rule. See id., at 482-489. Yet the recurring

theme of habeas history, confidence in the primary remedy, is

also clearly present. The argument against the Powell rule

“stem[s] from a basic mistrust of the state courts.” /d., at 493,

n. 35. Powell acknowledged “the unsympathetic attitude to

federal constitutional claims . . . in years past” but was “unwill-

ing to assume that there now [in 1976] exists a general lack of

appropriate sensitivity to constitutional rights” in state courts.

Ibid. (emphasis added).

The dissent obviously does not share this confidence. See

id., at 525 (Brennan, J.). The dissent assumes throughout that

any disagreement between state and federal courts constitutes

“disrespect and disregard for the Constitution” by the state

court. See id., at 524. The possibility that the state court

might be right and the federal court wrong does not seem to

occur to the dissent.

D. Congressional Silence.

If exceptions to de novo review can be judicially created, it

necessarily follows that there is no Congressional mandate for

de novo review. If Congress had created such a rule, only

Congress could create exceptions. Indeed, Justice Brennan’s

dissent in Powell is based primarily on his assumption, uncriti-

cally adopted from Justice Frankfurter, that Congress had

mandated such a rule. See Stone v. Powell, 428 U. S. 465, 526-

528 (1976). Yet the fact is that since 1867 Congress has never

spoken a word directly on the subject of prior state determina-

tions of law, although it has spoken on a number of related

issues.

19

In 1891, this Court declared that procedural constitutional

questions, as opposed to the constitutionality of the underlying

Statutes, were within the competence of the state courts to

decide and could not be reexamined at all on habeas corpus.

See In re Wood, quoted ante, at 9. Congress did nothing to

change that rule.

In 1941, while discussing the exhaustion doctrine, this

Court stated that the exhaustion of state remedies would

normally settle the matter, and “a federal court will not ordi-

narily re-examine upon writ of habeas corpus the questions

thus adjudicated.” Ex parte Hawk, 321 U.S. 114, 118 (1944).

Seven years later, Congress codified the exhaustion rule, with

a revision note expressly citing Hawk as a correct statement of

the law. Revision note to 28 U.S. C. § 2254, 415 (1988 ed.).

In the same revision, Congress made a reference to previous

federal adjudication, but nothing indicated an intent to limit

the preexisting discretion to deny habeas on the basis of prior

State adjudications. Brown v. Allen, 344 U.S. 443, 462 (1953).

In 1966, Congress spoke on the subject of prior state adju-

dications of fact, the least controversial form of deference.

The Powell dissent claimed that this represented a ratification

of the rule of de novo review of questions of law. 428 U. S., at

528. The Powell decision is necessarily a rejection of that

arement.

In the same year Powell was decided, Congress considered

whether to overrule it when it amended the habeas corpus

rules. Congress decided not to decide. H.R. Rep. No. 1471,

94th Cong., 2d Sess., reprinted in 1976 U. S. Code Cong. &

Admin. News 2478, 2479.

After Teague v. Lane, supra, carved out a second major

exception to de novo review, Congress again considered

whether to specify its own rule of retroactivity. The House

and Senate could not agree, and habeas reform was stripped

out of the crime bill by the conference committee. Statement

of President George Bush Upon Signing S. 3266, 1990 U. S.

Code Cong. & Admin. News, 101st Cong., 2d Sess., 6696-1.

20

The story was much the same in 1991. A bill supported by

the President was introduced which would have abolished de

novo review on habeas corpus. 137 Cong. Rec. $3192, $3199.

The habeas provisions of this bill were incorporated into a bill

which overwhelmingly passed the Senate. 137 Cong. Rec.

$9982, $9999. An amendment to put those provisions into the

House bill failed by a narrow margin. 137 Cong. Rec. H7996,

8005. Congress adjourned without reconciling the two bills.

W. Rehnquist, 1/99] Year-End Report on the Federal

Judiciary 4.

In Helvering v. Hallock, 309 U. S. 106 (1940), this Court was

also faced with a situation where the same statutory language

had been construed inconsistently in successive Supreme

Court opinions. As in this case, Congress had never said which

interpretation was correct, although it had acted in the area.

Id., at 120, n. 7. In such circumstances, stare decisis is “not a

mechanical formula of adherence to the latest decision. . . .”

Id., at 119. Where the earlier interpretation is better rea-

soned, the Court should return to it. /d., at 119-120.

The Framers deliberately made legislation difficult because

they considered the legislature to be the most dangerous

branch. See The Federalist No. 48, at 309 (Madison) (Rossiter

ed. 1961). Legislation normally requires the agreement of

three organs of government: the Senate, the House, and the

President. U.S. Const. art. I, § 7, cl. 2. An erroneous inter-

pretation of a statute by this Court should not be made per-

manent and unchangeable by Congressional failure to act. If

such a rule is followed, then each one of these three organs

has effectively acquired the power to legislate that interpreta-

tion by itself, merely by blocking the efforts of the other two to

correct it. To prevent this distortion of the legislative func-

tion, this Court must retain the ability to correct its own misin-

terpretation of statutes, especially where Congress is dead-

locked.

21

III. Changes in the law and the nation since

Brown v. Allen call for reconsideration.

A. The Scope of “Constitutional” Claims.

At the time Brown v. Allen, 344 U. S. 443 was decided in

1953, there were few federal constitutional restrictions on

state criminal procedure. The ex post facto and bill of attain-

der restrictions of the original Constitution rarely arose. The

Due Process Clause of the Fourteenth Amendment incorpo-

rated only those specific guarantees which were deemed “of

the very essence of a scheme of ordered liberty.” Palko v.

Connecticut, 302 U.S. 319, 325(1937), overruled in Benton v.

Maryland, 395 U. S. 784, 796 (1969). Habeas petitions attack-

ing procedural matters were thus generally limited to claims of

racial discrimination, e.g., Brown, supra, 344 U. S., at 465-474

(jury selection), and claims of violations so egregious as to

render the entire proceeding a sham, see Frank v. Mangum,

237 U. S. 309 (1915) (mob domination); Moore v. Dempsey,

261 U. S. 86 (1923) (same); Brown, supra, 344 U. S., at 474-475

(allegedly coerced confession).

The scope of “constitutional” claims today is vastly broader.

A defendant with a constitutional claim is not necessarily

contending that he has been denied fundamental fairness.

More often than not, he is simply contending that the trial

court failed to comply with a detailed code of criminal proce-

dure promulgated through the decisions of this Court. See

Friendly, /s Innocence Irrelevant? Collateral Attack on Crimi-

nal Judgments, 38 U. Chi. L. Rev. 142, 155-156 (1970). Many

of these rules are far from fundamental. /d., at 156-157. The

exclusionary rule of Mapp v. Ohio, 367 U. S. 643 (1961), is an

extreme Case, serving a purely external purpose and actually

detracting from the fairness and accuracy of the trial. See

Stone v. Powell, 428 U. S. 465, 490 (1976).

As a result of the proliferation of prophylactic rules, the

gray zones where reasonable iudges differ are usually far

removed from the core of the constitutional right. Duckworth

v. Eagan, 492 U.S. 195 (1989) and Butler v. McKellar, 494

U. S. 407 (1990) were disputes over whether the Miranda rule

22

had been observed, not over whether the suspects had genu-

inely been coerced into confessing. Francis v. Franklin, 471

U. S. 307 (1985) involved a borderline transgression of the

rule of Sandstrom v. Montana, 442 U. S. 510 (1979), which is

extrapolated from Jn re Winship, 397 U. S. 358 (1970), which

discovered that a rule of evidence previously thought to be

subject to legislative control, see Morrison v. California, 291

U. S. 82, 88 (1934), was instead a part of the Due Process

Clause. This is not to say that these rules are wrong or unde-

sirable. It is only to say that “constitutional” rules today are

often a long way from fundamental and far removed from the

text of the Constitution. See Rose v. Lundy, 455 U. S. 509,

543, n. 8 (1982) (Stevens, J., dissenting).

B. The Availability of Counsel.

A second and fundamental difference between state courts

today and those of four decades ago is the availability of coun-

sci. A felony defendant today has the benefit of counsel both

at trial, Gideon v. Wainwright, 372 U. S. 335 (1963), and on the

first appeal, Douglas v. California, 372 U. S. 353 (1963). Be-

fore a defendant ever reaches federal habeas corpus, he has

had his case argued by counsel not once but at least twice.

The reliability of the state courts in ruling on the federal ques-

tions is thus substantially enhanced.

C. Acceptance of Federal Authority.

The rule of de novo relitigation was part of the long strug-

gle to establish the supremacy of federal law. From the Nulli-

fication Acts, to the Civil War, to the Little Rock school inci-

dent, to George Wallace’s infamous stand in the schoolhouse

door, federal authority had been bitterly resisted. Unques-

tionably, at the time of Brown v. Allen there were many state

courts that could not be trusted. Does the same hold true

today?

More progress has been made toward acceptance of federal

authority in the last thirty years than in the previous hundred.

Is it conceivable that in 1992 a judge of a state court of general

jurisdiction would answer a federal constitutional objection by

23

saying “that the ‘case [was] not being tried under the Federal

Constitution’ "? See Estes v. Texas, 381 U. S. 532, 556 (1965)

(Warren, C. J., concurring). Would the governor of a state

today call out the militia to block a federal desegregation or-

der, forcing the President to call in the Army? See Cooper v.

Aaron, 358 U. S. 1, 9-12 (1958). Would a governor personally

stand in the way of the enforcement of a federal court order?

See L. Sobel, Civil Rights 1960-1966, at 217-218 (1967).

These occurrences of 30 and 35 years ago are inconceivable

today. The supremacy of federal law is universally acknowl-

edged and is routinely applied in the state courts. See Stone v.

Powell, supra, 428 U. S., at 493, n. 35; Sawyer v. Smith, 111

L. Ed. 2d 193, 210-211, 110 S. Ct. 2822, 2831 (1990). The dif-

ferences today are differences of interpretation, not obstinate

resistance.

The 16-year experiment of Powell produces some useful

data on the trustworthiness of state courts in the absence of de

novo review on federal habeas. If the dire warnings of those

who insist on the necessity of de novo review were correct, see,

e.g., Butler v. McKellar, 494 U. S. 407, 430-431, n. 12, (1990)

(Brennan, J., dissenting), then we could confidently expect

that disaster would have occurred in the decade and a half

since Powell. Blatant violations of the Fourth Amendment

should be routinely going uncorrected in state courts, swamp-

ing this Court with clearly meritorious certiorari petitions and

requiring many summary reversals.

The reality, judging from this Court’s Fourth Amendment

cases arising from state courts, is quite different. State courts

are reversed as often for wrongly suppressing evidence as for

wrongly admitting it. Looking at the October 1989 and 1990

terms, it appears that state courts were reversed for erring in

the defendant's favor considerably more often than for erring

against him. See The U. S. Supreme Court 1989-90 Term, 47

B.N.A. Cr.L. 3105-3117 (1990); The U. S. Supreme Court 1990-

91 Term, 49 B.N.A. Cr.L. 3101-3104 (1991). To be sure, there

are many other factors besides the correctness of the decision

below in determining whether this Court takes the case. Even

so, if the dismal assessment of state courts which the propo-

24

nents of de novo habeas review assert were correct, the rever-

sal rates would surely be lopsided in the other direction.

D. Supposed Superiority of Federal Courts.

In the 1960's, when the specific guarantees of the Bill of

Rights were being “incorporated” at a rapid clip, it was rea-

sonable to believe that federal judges were more familiar with

the Bill of Rights than state judges who had not previously

needed to apply it. Not so today. Federal rights pervade state

criminal procedure today, and state judges spend a somewhat

larger proportion of their time on criminal cases. Compare 2

Judicial Council of California, 988 Annual Report 43 (47%

criminal caseload in courts of appeal in 1986-87) with 1988

Annual Report of the Ninth Circuit 56 (33% criminal and pris-

oner petitions in 1987). The bulk of lawyers and judges today

have spent all or most of their carcers in the post-incorpora-

tion environment.

As noted earlier, ante, at 18, the assumption that the feder-

al habeas court is always right permeates the view of those

who would preserve the status quo. Regrettably, this is far

from true. Time and again, in recent years, this Court has

been called upon to correct erroncous judgments and prece-

dents of the federal courts on issues where the state courts

were right from the beginning. Sce, e.g., Pulley v. Harris, 465

U. S. 37 (1984); Wainwright v. Goode, 464 U.S. 78 (1983);

Kuhlmann vy. Wilson, 477 U. S. 436, 459-461 (1986); Lewis v.

Jeffers, 111 L. Ed. 2d 606, 110 S. Ct. 3092 (1990); Estelle v.

McGuire, 60 U.S. L. W. 4015 (1991). Compare Walton v.

Arizona, 111 L. Ed. 2d 511, 524-525, 110 S. Ct. 3047, 3053-

3054 (1991) with Adamson vy. Ricketts, 865 F. 2d 1011, 1023-

1029 (CA9 1988). For the reasons stated in the Attorney

General's brief, the present case is also an example. “Misap-

plication of this Court’s opinions is not confined to the state

courts... .” Amalgamated Clothing Workers v. Richman Bros.

Co., 348 U.S. 511, 519 (1955).

25

IV. The rule of Salinger/Hawk should be restored, with

additional guidance, denying reconsideration for most

“mixed questions.”

“Federal collateral litigation places a heavy burden on

scarce federal judicial resources, and threatens the capacity of

the system to resolve primary disputes.” McCleskey v. Zant,

113 L. Ed. 2d 517, 543, 111 S. Ct. 1454, 1469 (1991). That

burden must surely be borne in a case such as Moore v. Demp-

sey, 261 U. S. 86 (1923), in the extremely unlikely event that

such a travesty could occur today and go uncorrected by the

state couris. On the other hand, these scarce resources and

those of the state are squandered relitigating cases such as

Blair v. McCarthy, 881 F. 2d 602 (CA9 1989), dismissed as

moot and remanded, 112 L. Ed. 2d 391, 111 S. Ct. 377 (1990),

disapproved in Estelle v. McGuire, 60 U.S. L. W. 4015, 4017, n.

2 (1991). The essential question is how to apportion the re-

sources according to the magnitude of the alleged error.

From the very early days of federal habeas for state prison-

ers, this Court has recognized that the lower federa! courts

have the power to interfere with state criminal proceedings,

but that this power must be exercised sparingly. Ex parte Roy-

all, 117 U. S. 241, 252-253 (1886). The exhaustion doctrine of

Royall is the best example of such a limitation. Although orig-

inally a guideline for the court's discretion, it has become a set

of rules developed through long experience, with only a limit-

ed area left for individual judgment. See Rose v. Lundy, 455

U. S. 509, 522 (1982) (mandatory dismissal of mixed petition).

This is a salutary development, for the outcome of a legal

proceeding ought not to depend on which judge is selected at

random from those on the roster of the court.

The doctrine of procedural default has similarly evolved as

a nonjurisdictional limitation on the exercise of the power of

habeas corpus. See Coleman v. Thompson, 115 L. Ed. 2d 640,

655-657, 111 S. Ct. 2546, 2553-2555 (1991); Murray v. Carrier,

477 U. S. 478, 497 (1986) (“sound and workable means of

channeling the discretion”). The rule against consideration of

successive petitions is another example. See generally

McCleskey, supra.

26

With regard to prior adjudications on the merits in state

court, questions of fact are now governed largely by statute, 28

U.S. C. § 2254(d), while questions of pure law are governed

largely by the “new rule” principle and its exceptions. As to

the application of the law to the specific facts of the case,

however, amicus submits that the time has come to restore the

basic rule as stated in Ex parte Hawk, 321 U.S. 114 (1944): “a

federal court will not ordinarily re-examine upon writ of ha-

beas corpus the questions thus adjudicated.” /d., at 118

(emphasis added). The interpretation of the words “to dispose

of the party as law and justice may require” as set forth in Sa-

linger v. Loisel, ante, at 12, should be restored. That interpre-

tation has not been overruled by this Court or by Congress,

and no good reason exists for not following it.

Although amicus believes the Salinger/Hawk rule to be

basically correct, Justice Frankfurter had an undeniably valid

point when he said that the Brown majority and Hawk did not

provide sufficient guidance for determining whether the case

was an ordinary or extraordinary one. Brown v. Allen, 344

U. S. 443, 501 (1953) (opinion of Frankfurter, J.); see McCles-

key, supra, 113 L. Ed. 2d, at 546, 111 S. Ct., at 1471. Instead of

the guidelines Justice Frankfurter set down nearly four dec-

ades ago, however, amicus submits that this Court should es-

tablish new guidelines taking into account the changes in the

nation and the law which have occurred in the interim.

“{C}laims of constitutional error are not fungible.” Rose v.

Lundy, 455 U.S. 509, 543 (1982) (Stevens, J., dissenting).

Despite the protests raised against this thesis, Stone v. Powell,

428 U. S. 465, 529 (1976) (Brennan, J., dissenting), its truth is,

by this time, undeniable. It is demonstrated by the differences

in retroactivity, both under the old regime, Lundy, 455 U. S., at

543, n. 8 (Stevens, J., dissenting), and under the new one, see

Penry v. Lynaugh, 492 U. S. 302, 330 (1989) (exception to

Teague for categorical exemption from punishment).

Constitutional claims are also classified for the purpose of

harmless error analysis. In Arizona v. Fulminante, 113

L. Ed. 2d 302, 111 S. Ct. 1246 (1991), there was no dispute

that some claims are subject to harmless error analysis and

27

some are not. The only dispute was the classification of the

claim in question. Compare id., 113 L. Ed. 2d, at 331, 111

S. Ct., at 1265, (Rehnquist, C.J., for the Court on this point)

with id., 113 L. Ed. 2d, at 321, 111 S. Ct., at 1256, (White, J.,

dissenting on this point).

For the application of law to specific facts, amicus submits

that the Court should accept the frank admission in Miller v.

Fenton, 474 U. S. 104, 114 (1985), that the question of wheth-

er federal habeas courts should defer to the state adjudication

is a “matter of the sound administration of justice” to be estab-

lished issue by issue. Useful guideposts for this determination

can be found in several aspects of this Court's decisions. How

carly in our history was the rule recognized as constitutional as

applied to the states? Was the rule fully retroactive? What

kind of harmless error analysis has been applied to violations

of the rule?

A few examples will help illustrate these considerations.

The right to counsel was recognized in complex cases long

before the incorporation doctrine. Powell v. Alabama, 287

U. S. 45 (1932). The extension of that right to all felonies was

fully retroactive, see Pickelsimer v. Wainwright, 375 U.S. 2

(1963), and a violation is reversible per se. Fulminante, supra,

113 L. Ed. 2d, at 331, 111 S. Ct., at 1265. Thus, if a state de-

nies counsel to a felony defendant who never, at any time in

the proceedings, makes a valid waiver, or if the state appoints

counsel under external conditions making effective assistance

impossible, see Powell, supra, 287 U. S., at 71, the federal court

should apply the law to these facts de novo. On the other

hand, federal scrutiny of counsel’s actual performance follow-

ing a valid appointment is a relatively recent development, and

such a claim requires an affirmative showing of prejudice.

Strickland v. Washington, 466 U. S. 668, 687 (1984). These

determinations are appropriate for a degree of ieference to

the prior adjudication, discussed further below.

Coerced confessions were also recognized very early as

constitutional violations. Brown v. Mississippi, 297 U. S. 278

(1936). Although they have recently been held to be subject

to harmless error analysis by a narrow majority in Fulminante,

28

supra, the “half century of unwavering precedent” described

by Miller, supra, 474 U. S., at 115, justifies de novo review of

such claims.

Antiquity and rejection of harmless error similarly justify de

novo review of claims of systematic exclusion of minorities

from jury service. See Vasquez v. Hillery, 474 U. S. 254, 260-

261 (1986). The same is not true of Batson claims. They in-

volve a rule of much newer vintage, and their adjudication

depends heavily on the trial judge’s evaluation. See Batson v.

Kentucky, 476 U. S. 79, 97 (1986). Although undeniably im-

portant, the Batson rule was not so fundamental as to require

retroactive application on habeas corpus. Allen v. Hardy, 478

U.S. 255 (1986).

Under these standards, the vast majority of law application

claims will be subject to deference to the prior state adjudica-

tion. The question, then, is what degree of deference is ap-

propriate? A couple of points need to be considered here.

First, the habeas court should consider the nature of the

state proceeding, for not all proceedings are entitled to equal

deference. See Ex parte Cuddy, 40 F. 62, 66 (C.C.S.D. Cal.

1889). The federal statute and rules contemplate that “it is the

duty of the court to screen out frivolous applications” without

a hearing. Advisory Committee Note to Rule 4 of Rules

Governing Section 2254 Cases in the United States District

Courts. The state courts should be permitted a similar screen-

ing process in state habeas proceedings, and the outcome of

that process should be respected. If the federal petition

presents the same claims summarily dismissed by the state

court, that dismissal is entitled to deference under the stand-

ard described below. If the federal petition presents new

grounds, they should be dealt with under the doctrines of

exhaustion and procedural default.

29

If the allegations in a state habeas petition were sufficiently

substantial to warrant a hearing in state court, the federal

court should consider whether counsel was available.’ The

state has no obligation to provide counsel on state habeas,

Pennsylvani« v. Finley, 481 U.S. 551, 555 (1987), but if it re-

quires a prisoner to go into a habeas hearing unaided, it can-

not expect deference to the result of a lopsided contest. A de-

fendant who spurns the state’s offer of counsel, on the other

hand, should not be permitted to exploit his own folly.®

The second question is whether the state court actually

reached the merits. See House v. Mayo, 324 U. S. 42, 47-48

(1945). If not, the case is properly considered under the rules

of exhaustion and procedural bar. Considerations similar to

those in Yist v. Nunnemaker, 115 L. Ed. 2d 706, 111 S. Ct. 2590

(1991) and Coleman v. Thompson, 115 L. Ed. 2d 640, 111

S. Ct. 2546 (1991) may be necessary to decide this question.

Significantly, the rule amicus proposes will produce an affirma-

tive incentive for state courts to reach the merits, in contrast

to the opposite incentive of the procedural default rule.

If (1) the issue is one subject to deference, (2) defendant

had or waived counsel on direct appeal and on any state col-

lateral review requiring a hearing, and (3) the state court actu-

ally reached the merits, then amicus submits that the federal

court should decline to reconsider the question, unless the

State decision is so clearly wrong that reasonable, competent

judges cannot differ. The state courts have an equal responsi-

bility to resolve federal questions and are equally competent to

do so. The fact that one set of judges disagrees with another

7. An argument can be made that counsel should always be provided on

the first habeas petition of a capital defendant. Cf. 21 U.S.C. §

848(q)(4)(b). As this is not a capital case, this point need not be

addressed.

8. ‘The state is required to provide counsel to indigents on appeal. Douglas

v. California, 372 U. S. 353 (1963). Absent an independent violation of

that right, the issues presented on appeal will necessarily have been

briefed by counsel unless defendant waived counsel.

30

on a nonfundamental question is not a good enough reason to

interfere with a final judgment of a court of competent juris-

diction.

Applied to the present case, the issue is straightforward.

Not only was West found in possession of a variety of unusual,

recently stolen items, but, in addition, he gave an explanation

which the jury must have concluded was a lic. Even though

exculpatory on its face, there is certainly nothing wrong with

the jury considering a false explanation as inculpatory. Wilson

v. United States, 162 U. S. 613, 620-621 (1896). Reasonable

judges could certainly conclude that this verdict is sustainable

under Jackson v. Virginia, 443 U. S. 307 (1979). The Jackson

rule is a nonfundamental rule, not traditionally considered

constitutional. See Sunal v. Large, 332 U.S. 174, 179 (1947).

The state court decision, rendered in a considered judgment

after presentation of defendant's case by counsel, is entitled to

deference.

CONCLUSION

The judgment of the Court of Appeals for the Fourth Cir-

cuit should be reversed.

Dated: January, 1992

Respectfully submitted,

KENT S. SCHEIDEGGER

Attomey for Amicus Curiae

Criminal Justice Legal Foundation

i