Appendix — Fay v. Noia

“LIERARY

Office-Supreme Court, U.S,

Bure: © OURT. U.S FILED -

, MAR 92 1962

i JOHN F. DAVIS, CLERK

IN THE

| Supreme Court of the United States

October Term ioral

UNITED STATES OF AMERICA, ex rel.

CHARLES NOIA,

Respondent, *

—against—

EDWIN M. FAY, as Warden of Greenhaven Prison, ~~

State of New York, and THE PEOPLE OF THE

STATE OF NEW YORK,

- Petitioners.

ee Sr a rant nee ee A AA Ng

| . “APPENDIX TO PETITION .

FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

—

croatia RN AIRED? ENE SS RST N n AE RAeEAk eRNAAeA

Epwarp S. Sivek

District Attorney

Kings County, New York

Attorney for Petitioners

Wutfam I. S1ecex °

Assistant District Attorney

Of Counsel

a . Casz Passa Inc., 421 Hudson St., N. Y.—ORegon 5-4540

UNITED STATES COURT OF APPEALS

For THE SEconp Cirnecir |

soi = = 2 atlenieinaiieienee-aitilit

.

No. Is —( letober Term, Lao,

(Argued April 20, 1961 Decided February 7, 1962.)

; Docket No. 26557

- —+ } : Sa

*Unirite States of AMERICA, oe re’. Ciannes Nowa,

> Relator-Appellant,

—V.-

~Kowis Mo Bay, as Warden of Greenhaven Prison,

State of New York, ;

‘Responds nt-A ppelles

—— Path Pad tn

Before:

— Waikkman, Moore and Swirn, ;

Circuit Judges.

—— oo 2 — —

“Appeal from order, United States Distriet Court for the

Southern District of New York, Cashin, ./.. dismissing.

after hearing, relater’s application for issuance of a writ

of habeas corpus. Reversed and remanded with instrue-

tions to issue the writ, unless relator is accorded a new

trial forthwith.

Epwanp Q. Carr, Jr. Legal Aid Society (Leon

B. Polsky, appellate counsel), New York,

City, for Appellait.

3

Epwarp S. Sitver, District Attorney, Kings

County (William I. Siegal, Asst. District

Attorney, of counsel), for Appellee.

>.

bad

WATERMAN, Circuit Judge:

Relator, Charles Noia, and two others, Frank Bonino

and Santo Caminito, were convicted twenty ‘years ago un-

der, the laws of the State of New York for the crime of

murder in the first degree upon an indictment alleging a

felony murder in that they committed a homicide while

engaged in an armed robbery.- At trial the State offered

nothing to connect any of the three with the crime except

their several confessions, admitted into evidence over ob-

jections by defense counsel on the ground that the con-

fessions were involuntarily made. Each defendant testified

in his own defense and introduced evidence that each of

‘the three confessons was obtained by police coercion in

violation of the Fourteenth Amendment. The issue of the

voluntariness of these confessions was submitted >to the

jury, the judge charging that if the confessions were found

to be involuntary ones the def@idants should be acquitted.

The jury returned verdicts of guilty but, .as it may do in

New York in felony murder cases, recommended clemeuey.

The judge accepted the . jury recommendations and sen-

tenced cach of the three defendants to life imprisonment.

Necessaril)\mplied in the verdicis was a jury finding that

the three confessions were not involuntary. bate

Bonino and Qaminito appeaied. their convictions to the

New York Supreme Court, Appellate Division, Second

Department, and, on affirmance by that court, 265 App.

‘his appeal. These motions

Div. 960, 38 N.Y. S. 2d 1012 (1942), appealed to the New

York Court of Appeals, 201 N.Y. 541 (1943). Naia did not -

appeal. Both of the appellate tribunals considered whether

the two appealing defendants had_been denied due process

of jaw by the use-of their allegedly coereed confessions.

The courts rejected the appellants’ contentions, and af-

firmed the convictions. Neither Caminito nor Bonino peti-

tioned the United States Supreme Court for certiorari at

that time. Later, on two different occasions, Caminito

moved the New York Court of Appeals for reargument of

rere: denied, 297 N. Y. 882

1

(1948): 307 N.Y. 686 (1954).'. After the second denial

Caminito filed a petition i > UL S. Supreme Court for

certiorari, Which: was denied, 548 U.S. 839 (1954).

Caminito forthwith petitioned the Unites! States District

Court for the Northern Distriet of New York for the issu-

ance ofa federal writ of habeas corpus. He onee more

claimed thiat he -had been denied due process: of law at

his New York State trial by the admission against him

of his coerced confession. His petition was denied, 127

I. Supp. 689 (1955), but on appeal to our Court the district

court was reversed, 222 F.2d 698 (1955). We held, as a

-niatter of law, that Caminito*s confessions had heen ce-

erced in violation of his right to due process of law under

the Fourtecrith Amendment and that constquently his ¢on-

viction Was void. A. petition for certiorari to the U.S.

Supreme Court was denied, 350 U.S, 896 (1953).

Thereupon Bonino, the other defendant who had: ap-

e

pealed his conviction, petitioned the New York Court. of

“! The rules of the New York Court of Appeals impose no time limit

within which a motion for reargument must be nled. ,

a

Appeals for reargument of his appeal. That court granted

his application, reversed the conviction, and ordered that

upon retrial his coerced confession not be introduced

against him. People y. Bonino, 1 N. Y. 2d 752 (1956). In

fact, neither Caminito nor Bonino has ever been retxied,

as indeed it would appear to be impossible to obtajgs r

convictions without the use of these confessionSSaind,

though they continue to be subject to indictment, they are

free from restraint.

As previously stated, Noia, the relator here, did not

appeal from his conviction. Hence the post-conviction

procedure of applying for a belated reargument in the

New. York Court of Appeals, utilized first by Caminito

-and then by Bonino, was unavailable to him, Nevertheless,

-Noia was convicted at the same trial as were the other

two, and convicted by the same means; therefore, if their

convictions were void it. seemed reasonable to dnearcerated

Noia that his conviction was also void., He thereupon moved

-to set aside_his conviction and sentence by a proceeding

in Kings County Court, the court wherein he Was orig-

inally tried, convicted and sentenced. Noia could main-

tain no ground for setting aside ‘his conviction other than

the confention that his coerced confessions were inad-

niissible, a ground urged upon the trial court at the time

of trial. He argued that since this ground had sufficed to

void the convictions of his companion defendants, Caminito

‘and Bonino, the sentencing court must have inherent power

to set aside his conviction also, a conviction obtained

through the.same denial of due process.

or gn ee oeraee pom et

q

The Kings County Court found that Noia’s conviction

Was manifestly unlawful and ordered it vacated. People

v. Noia, 3 Mise. 2d 447, 158 NOY. S. 2d 683 (County. Ct.

1956). The State appealed to the Appellate Division, See-—

ond Department, where the decision of the County Court

was reversed 14 App. Div. 2d 698, 168 N.Y. S. 2d 796 (1997).

In a memorandim. opinion the Appellate Division unani-

mously held:

“It was error to vacate the judgment. The respon- ,

dent’s contentions with respeet to the illegality of his

conviction involve matters which could have been ade-

quately reviewed on appeal from the judgment of con-

viction. No appeal was taken. This being so, the court

was without authority to grant the application (People

v. Sadness, 300 N. Ys 69, 89 N. E. 2d 188; People v.

Russo, 284 App. Div. 763, 135 N.Y. S-2d 475; People

~y Palumbo, 282 App. Div. 1059, 126 N.Y .S. 2d 381).""

163 N. ¥. S. 2d 796, 797. : |

Noia, in tarn, appealed to the New York Court of Appeals,

which unanimously affirmed the Appellate Division. People

v. Nowa, reported sub nom... People v. Caminito, ‘oo

596, 170 N. YS. 2d 799, cert. denied, 357 U.S. 905 (1958).

Relying upon People vo Rizzo, 246 N.Y. 384, 3895158 N. E.

sss, 890,55 AL. R. 711 (1927), the Court of Appeals held

that Noia’s failure timely to appeal from his conviction

precluded him from obtaining the post-conviction relief

he sought. The court went on to diseuss the revitalization

in New York of the extraordinary writ.of coram nobis, see

Lyons v.-Goldstein, 200 N.Y. 19, 47 No FE. 2d 426, 146

ALL. R. 1422 (1943), and pointed out that, even though

the scope of that common law writ had beeu somewhat

ra \

expanded beyond its original office bythe New York courts,

it was still only usable in New York for the purpose for

which it was initially designed, that of presenting facts

to the court of ‘which the court was not aware at the time

of the judgment sought to be vacated. 3 N. Y. at 601,

170 N. ¥. S. 2d at 804. Therefore, since the ground upon

which Noia sought to have his conviction set aside was —

apparent on the record at the time when he could have

appealed, no post-conviction remedy was available to him.

This was held to be so, even though the convictions of

Caminito and -Bonino had been vacated, the former by

action of a federal court after Caminito had fully prose-

cuted his appeal through the New York State Courts, and

- the latter by a reversal upon reargument in.the New York -

Court of Appeals itself. 3 N. Y. | 600, 170 N. Y. S. 2d

at 803.” \

After this adverse decision by the highest court of New

York and the subsequent denial of his petition for a writ _

of certiorari in the U. S.: Supreme Court, Noia petitioned

‘the U.S. District Court for the Southern District of New

York for a writ of habeas corpus in order to. present to

a federal court his claim that. he was convicted without.

.due process of law. Before a federal district judge could

consider the merits of relator’s application, Noia had to

satisfy the threshold requirement’ set forth in 28 U.S. ©.

§2254 (1958), which provides that:. |

§2254. State custody ; remedies in State Chart

An application for a writ of habeas corpus in behalf

of a person in custody pursuant to the judgment of a

* Compare People v. Boundy, Dkt. No. 331, New York Court of

Appeals 1962, with People-v. Codarre, 10 N. Y. 2d 361 (1961).

State court shall not be granted ‘unless it appears that

he applicant has exhausted the remedies available in

the courts of the State, or that there is either an ab--

sence of available State corrective process, or the (ex-

-istence of circumstances rendering such process a

effective to protect, the rights of the prisoner.

An applicant shall not be deenied to have exhausted

the remedies available in the courts of the State, within

the meaning of this section, if he has the right ‘under

the law of the State to raise, by any available proce-

dure, the question presented.

The purport of the statute was exhaustively considered

by the district: judge who, in a written opinion, reported

eat 183 F. Supp. 229 eoneluded that a study of the authori

ties required that the statute be interpreted so as to fore-

close any petitioner who had exhausted all presently avail-

able state remedies from obtaining habeas corpus relief

if he had failed to pursue a previously available state’

remedy during the time when that remedy had been avail-

able to him. Inasmuch as Noia had not timely appealed

his conviction when he could have done so,, and inasmuch

as the New York courts as a result of this delinquency:

had subsequently dismissed ) his latterly- brought coram

nobis proceeding without reaching the merits of his con-

stututional claims,-the federal district judge concluded that

Noia‘ had not exhausted his state remedies as required by

the statute... In an effort to justify the failure timely to |

appeal his conviction relator asserted that he did not then

: appeal because he had no. funds and he aid not wish to

cause his family further expense. . The warden’s evidence

tended to indicate that Noia had not appealed for fear

‘that upon a retrial he might receive the death penalty.

Cd

The court held relator’s explanation insufficient to excuse j

the procedural omission and so reluctantly é@ismissed Te.

lator’s habeas ‘corpus petition. ‘He found it unnecessary

to make any -findings with reference to the warden’s sug- —

gestion. ‘The judge recognized that it was clear that Noia,

like Caminito and Bonino, eould not have been convicted

except for the introduction at the trial of the coerced confes

sion, and he found that Noia was being held. in a ‘‘ patently

unconstitutional detention,’ 183 F. Supp. at 225, and that

prior to trial Noia had been subjected to precisely the same

coercion as were. his two codefendants, who, though con-

vieted with him, were now ‘‘virtually scot free.’’” 183 F.—

Supp. at 227.

s WaAIvER .

The first question before. us is whether, inasmuch, as

his conviction was not appealed, Noia waived his undeni-

able constitutional right of being tried without his coerced

confession in evidence. The answer to this question is to

be determined according to federal law. The issue of -

- whether there has been a waiver of a federal right is to

‘be federally, determined, even if the alleged waiver is the

failure to take a particular state procedural step. See Rice

v. Olson, 324 U. S. 876 (1945) ; Davis v. O’Hara, 266 U.S.

314. (1924); ef. Dice v. Akron, (. & Y. R.R., 342 U.S: 359

(1952). The Supreme Court has said that waiver is ordi- -

narily ‘‘an intentional relinquishment or abandonment of a

known right or privilege.’’ Johnson v. Zerbst, 304 U.S. 458,’

464 (1938). The highest Court has instructed us to indulge.

all reasonable presumptions against the waiver of a funda-

mental constitutional right. Aetna Ins. Co. v. K ennedy, 301

U.S. 389, 393 (19387); Hodges v. Easton, 106 U.S, 408, 412

(1883). As was said in Ohio Bell Tel, Co. ve Public Util.

Comm'n, 801 U.S. 292, 307 (1937), ** We do not presume

aequiescence in the loss of fundamental rights.’’ We must

. apply these principles to Noia’s case.

“\Sontetimes, it is true, courts have snighethat a litigant

has waived"? a right in circumstances where it is obvious

that a known right was not intentionally abandoned within

the standard announced in Johnson vy. Zerbst, supra. In

some instances, we fear, waiver" has been misused and, .

abused, twisted and tortnted, in order either to dispose of

a bothersome factual ambiguity or to reach results that.

would hav e been more accurately supportable ‘upon other

‘grounds. See Reitz, Federal Habeas Corpus: Impact of an

Abortive State Proceeding, 74 Harv. L. Rev. 1315, 1333

(1961). It can truly be said that in such cases the term,

‘Swaiver’’ is used to describe, rather than to explain, the

result reached. We do not wish'to fall into this intellectual

trap. If the term ‘‘waiver’’ does indeed identify some legal

_concept relevant te the case before us other than that de-

fined in Johnson v. Zerbst, it must be contained within one

of those combinations Where law is applied to fact which

it is more suitable to diseuss below under a different con-

- ceptual label.

We turn to a consideration of whether Noia waived his

constitutional right within the ar bit of the term as it was ¢

defined in Johnson 'v. Zerbst. It would seem that a conscious

and willing failure to appeal could indeed be a form of

waiver. Brown v. Allen, 344 U.S. 443, 503° (1953) pao

of Frankfurter, J); ef. Frank v. Mangum, 237 U. 300,

10

$43 (1915). If a convieted defendant is clearly apprised

of a violation of bis constitutional rights and of the proce-

‘dure available to him for vindicating those rights, and if he -

is under no unfair restraint preventing this vindication, his

failure to employ that,procedure can-be said to be an in-

- tentional relinquishment of a known right. But see Reitz,

supra, at 1335, ; .

it has been asserted\ that a defendant cannot waive those

rights without enfarcement of which the proceedings against

him would be fundamentally unfair. Reitz, supra, at 1333.

Among such non-waivable rights would be the right to be

tried by an ‘impartial tribunal, the right to be tried by a

court free from mob domination—and the right not to be

convicted solely upon the basis of a coereed confession.

Perhaps Mr. Justice Frankfurter was referring to this

concept of non-waivable rights when he , said:

Of course, nothing we have said suggests that the

federal habeas corpus jurisdiction caf displace a

State’s procedurat rule requiring that certain .errors

be raised on-appeal. Normally rights under the Fed-

eral Constitution may be waived at the trial, ddams v.

United States ex rel. McCann, 317 U.S. 269, and may

likewise be waived by failure to assert such errors

on appeal. Compare Frank vr. Mangum, 237 U.S. 309,

- 343. When a State insists that a defendant be held to

his choice of trial strategy and not be allowed to try .

a different tack on State: habeas corpus, he may be

deemec: to have waived his claim and thus have no

right to assert on federal habeas corpus. Such con-

siderations of. orderly appellate procedure give rise

to the conventional statement that habeas corpus should

not do service for an‘appeal. See Adams v. United

ll

States o® rel, McCann, supra, at 274. Compare Sunal

v. Large, 382 U.S. 174, with Johnson vo Zerbst, 304

U.S. 458, 465-469. Mowsver, this does not touch one

of those extraordinary cases in which a substantial.

. claim ques to the very foundation of a proceeding, as

_ Moore vo Dempsey, 261 US. 86. (Emphasis added.)

Brown v. Allen, supra, at 308,

se that as at may, adopting, as the Supreme Court has

instructed us, all reasomabie inferences» against Noia‘s

having waived a fundamental constitutional right, we con:

clude that relator did not waive his right under the Four-

teenth Amendment not tu be tried and convicted solely

upon his coerced confession. At the time Noia macde his

choice not to appeal, he had just been convicted by a New

York court and jury solely upon the confession which had

hen wrung from him. But it was not at all clear that Noia

could convinee an appellate court of the unconstitutionality

of his treatment. The police at the trial only admitted te

extracting his acknowledgment of guilt’ by methods far

more subtle than brute foree.*/And even if Noia had sue-

3 In Genying the writ inthe habeas corpus procee: ling brougiit by -

Noia’s codefendant Camiite, the district judge set forth these

facts:

Of course, there are many factors that are disturbing andl -

cause suspicion. The holding of the defendants meommunt:

cado, the sleeping on a hard bench without pillow or blanket

ina cei’ probably not overheated, the talure te arraign wat!

out unnecessary delay as provided by law. the admittedly talse

* identifications, the intensive questioning by relays of dete

tives—this combination together with the tact that the relator

had never been. arrested “Or convicted. would: cate he -ttatior,

and suspicion on my part. Se would the fact that there 1 hittle.

if any, independent evidence connecting the relator with: the

commission of the crime. However, the sane Teefings const

have been in the minds of the surot. and thes decided the

y

ceeded in obtaming a reversal, he faced the possibility of

a new trial in which he might be convicted again and receive

the death penalty instead of. life imprisonment. He had just

received very shoddy treatment at the hands of the New:

York police—treatment that he then believed was approved

by judicial authorities. Why should he exbect ect a better

brand of justice from the same authorities in the future?

The posture of his case was far different inmiediately fpl-

lowing the trial than it is now as a result of the intervening

events which we have outlined above. We cannot believe

that Noia would consciously and willingly have surrendered

his constitutional right had he known then what he knows

now: that there had been an undeubted violation of this

right and the rectification of the wrorg done him would

mean his freedom, not his death. Perhaps Noia should be

denied relief for. some other reason, which we will discuss

presently, but surely not because of any conscious or in-

tentional waiver on his part of a right known to him ‘to have

his conviction set. aside because that conviction had been

obtained by depriving him of a constitutional right.

Exuacstion or State REMEDIES

We must now inquire whether relator’s failure to appeal

his conviction precludes him from relief under the Great

Writ because of the requirement in 28 U.S. C. $2254, quoted

issue in favor of the People after a complete, informative,

detailed and conscientious charge.

United States ex rel. Caminito v. Murpliy, 127 F. Supp.

689, 691-692 (1955).

The unconstitutionality of the treatment accorded the three defen-,

dants was pot established until Caminite appealed the denial of

the writ to our court. 222\F. 2d 698 (2 Cir. 1955).

13

4 Ae : ;

above, that a petitioner exhaust his state remedics betore

seeking federal habeas corpus. In so doing i will be help-

ful to review the applicable legal history.

Until the year 1867 habeas corpus in the federal courts

was, except for rare instances; only available to those de-

tained in federal prisons. In that year, however, as part of

its Reconstruction legislation, Congress -provided’ that the

United States courts could grant this wril in ‘tail cases

where any person may be restrained of his * * * liberty

in violation of the constitution, or of any treaty or law of

the Enited States * * °°? 14 Stat. 885. With only slight

changes in language this statute has come down to the pres’

ent day as 28 U.S.C. (2241. This legislation gave the lower

federal couftts’a broad jurisdiction to inquire into the con-_

stitutionality of the detention of any prisoner incareerated

pursuant toa conviction in a state court. Er parte Royall,

117 U.S. 241, 247 (1886). ;

But in applying the statute the federal courts were

hesitant to reopen matters that had been fully litigated: in

the state trial and state appellate courts. It was not

cenerally accepted until well into this century that ‘the

fyderal habeas corpus court had the duty to make an inde”

pe endent review of the details of the procedure accorded thie

defendant in the state court in order to determine whether

he had received dne process of law there as required of the

states by the Fourteenth Amendment. As*late as M15 the

‘Supreme Court sanctioneda | district court's refusal to in-

quire into the merits of an alle ‘gation of mob domination at

the relator’s trial because the state. courts had reviewed {

this issue fully, first on the defendant's motion for a new

tr ial and again on appeal to the state supreme court. Frank

oe

.

4

v. Mangum, 237 U.S. 309 (1910). A’ similar approach had

been taken by the Court in Jn re Wood, 140.0. S, 278, 287

(1891) (alternative holding). | e

Hight years after the decision in Frank v. Mangum, how

ever, in Moore v. Dempsey, 261 U.S. 86 (1928), the Su

preme Court clearly recognized the duty of a federal judge .

to determine for himself whether the petitionag was ‘con

vieted: pursuant to due process of law.' Again the aflega’

tion-was mob domination. The Court stated:

We assume in accordance with that case that the cor-

rective process supplied by the State may be"So atle-

quate that interference by habeas corpus ought not to

be allowed. It certainly is true that mere mistakes of |

law in the course ef a trial are not to be corrected

in that way. But if the case is that the whole pro-

ceeding is a mask—that counsel, jury and judge were

swept to the fatal end by an irresistible wave of pub-

lic passion, and that the State Courts have failed to

correct the Wrong, neither perfection in the machinery

for correction nor the possibility that the trial court

and counsel saw no other way of avoiding an immedi-

ate outbreak of the mob can prevént this Court from

securing to the petitioners their constitutional rights.

°° © We shall not say more co: *erning the corrective

process afforded to the petitioners than that’ it does

not seem to us sufficient to allow a Judge of the United

States to escape tha duty of examining the facts for

* This abrupt change in the treatment of habeas corpus cases since

the opinion in Frank v. Manquwa, rendered in 1915, mav have

been a result of the statute énaeted in 1916, limiting the appellate

jurisdiction of the Suprenie |Court over state court dectsions. 30

Stat. 726; Reitz, supra, at ¥328. No longer could all defendants

alleging ‘uncomstitutional inijrmities in their trials in state court:

bring their claims as a mattér of right to the highest court

.- \

himself when if true as alleged they make the trial

absolutely void. bd. at 91, 92.

_Rver since that motientous decision the Sapreme Court

has continued to subject the administration of state erim

inal justice te the independent inquiry of federal courts

pursuant tova petition for habeas corpus, Bag. Moeatew vy,

Holohan, 204 US. 108 C198). Brown vo dlen, S44 US.

$45) (1993). And, through the vears, in this review of state

trials, the United States courts have developed an ever

expanding concept of due, process, See Darr \; -Burtord,

Bay VS. vot, 22) 61950) CR rankfurter, J. dissenting).

+90 ¥

Reitz, supra, at Lolo,

Meanwhile. the federal courts in habeas @orpus cases

were also developing another theory, this one being eal

culated te reduce the instances of federal habeas corpus

review of state convictions. This was the requirement that

a prisoner ineareerated purstant lo a state conviction

exhaust his available state remedies before he seek relief

under federal habeas corpus. Ninéteen years .atter the:

pass care of the habeas corpus statute which was te become

os OS) OP. the Suprem? Court handed dew the

first opinion expounding the requirement that a habea~

corpus petitioner first exhaust his state remedies. Ba part

Royall, WG US. 241 CISS6). Ln that ease it was held that

the federal court im ifs. discretion might withhold the. fed

eral wrig when the defendant sought it before his trial in

the state court. See also United States ex rel. Drury vy.

Lewis, 200U. S21 (1906). By way of dietum in the Royall

case; the’ Court also recognized that, even when federal

habeas corpus wis nought after trial in the state court, the

federal court could, in the proper exercise of its discretion,

16

withhold the writ so as to require the petitioner to carry

his case through the state appellate system and thereafter

to bring a. writ of error in the U. S. Supreme Court. In

accordance with this dictum the Court, that sanie term,

denied an original petition brought after trial but before

the petitioner had appealed. to ‘the state supreme court.

Er parte Fonda. HW? U.S. 516 (1886). Thy United. States

Supreme Court found no obstacle preventing the defendant

in that case from first appealing to the highest court of

the state and then, if the ultimate state decision were ad-

verse, seeking review of that court's determination by writ

of error. Other cases in which the Court placed a similar

duty upon the defendant were United States ex rel, KRen-

nedy v. Tyler, 269 U.S. 13 (1925); In re Wood, 140 U.S.

78, 289-90 (1891) (alternative holding); Je re Frederich,

‘149 U.S. 70 (18938); New York vy. Eno, 155 U.S. 88 (1894) ;

Whitten v. Tomlinson, 160 U.S. 231 (1895); Baker ve Grice,

169°U. S. 284 (1898); Tinsley v. inderson, 171 U.S. 101

(1898); Dares v. Burke, 179 U.S. 899 (1900); Urquhart vy.

Brown, U.S. 179 (1907); ef. Riggins v. Udited States,

199 U. S. 547 (1905); Glasgow v. Moyer, 225 U.S. 4204_

(1912). hu Be Ses :

In Mooney v. Holohan, 294 U.S. 108 (1935), the Supreme

Court added a further requirement to that of fully carry-

ing forward a state appeal, the requirement that, before

"seeking relief under federal habeas corpus, a petitioner

exhaust the collateral remedies still open to him ‘in the

state courts, such as the state writ of habeas corpus. See

also Er parte Hawk, 321 U. S. 114 (1944) (per curiam) ;

Ex parte Botwinski, 314 U.S. 586 (1942) ; Ev parte Daris.

ea:

3M TS. 592 (1942). And the necessity of appealing from

the denial of any of these state collateral remedies before

bringing a petition for federal habeas corpus was an-

nounced in Eu parte Daris, 31S U.S. 412 (1943) (per

curtam).®

The Supreme Court recognized, however, that. excep.

tional cases might be presented in which the petitioner's |

duty to exhaust available state remedies would be excused

and the federal court could forthwith entertain the peti-

-tion for the Great Writ. Such was the famous case of Jn

re Neagle, 135 U. S..1 (1890). The petitioner there, a’

United States marshal, was imprisoned by, the sheriff of

San Joaquin County, California, on “a charge of muider,

because he had shot and killed: one David S. Terry in the

performance of the marshak's federally imposed duty to

protect the life of Mr. Justice Field of the United States

Supreme Court. Neagle sought release under the federal

writ well in advance of trial in the state court, Counsel

for the State of California asserted that an issuance of

the writ oy habeas corpus would deprive the state of its

right to try the defendant for the crime charged. The

Supreme Court) (Field. /.. not) sitting), nevertheless at-

firmed the United States Cireuit Court: for the Northern

District of California, wheel had tssned the writ of habgas

corpus and had ordered the discharge of the prisoner. Jn

* Apparentiv at was oniy necessary fdr the mearceratedede Sendag

to apply feor ONC PostscOonViehiont remedy even rt several were avai

able in the state sveteni, and beh

, ° e ¢ ‘

applications ter the same remeds even though thas. was pernutter

under state Jaw. See Brozven voto. sutra, at 448 30 & on 3

However, he was required to seek direct review of bis convretion

in the United States ‘Supremte Court) See Dune 0. Brrtond 330

U.S. 200 | 1950; But see Wade v. Mave. 334.0 8. oF 2019485

f net have te make repetitious

‘

a)

a

18

re Lonely, 134 U. S. 372 (1890) was another exceptional

case. There also the petitioner/was discharged under the

Great Writ from state detention before trial. ‘The defen-

dant was incarcerated awaiting-trial in a state court on a,

charge of perjury in that he allegedly gave false testimony

before-a notary public regarding the contested election of

a member of Congress. In upholding an issuance of the

federal. writ, the Supreme Court held that the state court _

had no jurisdiction to entertain an-action so inseparably .

connected with the functioning of the National Govern-’

ment. Another case of the exceptional type was Wilden-

hus’s Case, 120 U. S. 1 (1887). In that case the Court,

upon a petition for federal habeas corpus prior to trial

in the state court, decided the question whether the arrest

of a foreign crewman by state officers was contrary to the

provisions of a treaty between this country and the King-

dom ef Belgium. The Court held that the arrest did not

violate the treaty. It has been said that the rn

character of these turee cases, which permitted the byé

passing of the state remedial processes, was that they

invalved either the operations of the federal government

or its relations with other nations. Whitten v. Tomlinson,

supra, at 241.

In 1944 in the well-known ‘per curiam opinion of Ex:parte -

Hawk, 321 U. S. 114 (1944), the Supreme Court set forth

the exhaustion doctrine as it stood at the end of its pre-

Statutory development. The Court stated:

Ordinarily an application for habeas corpus by oné

detained’ under a state court judgment of conviction

for crime willbe entertained by a federal court only

after all state. remedies: available, including all appel-

19.

m Saat & ae

* Jate remedies in the state courts and in this Court by

appeal or writ) of certiorari, have been exhausted.

821 U.S. at 116-17, -

: * o Ld ‘ ° eo

But where resort to state court remedies has failed

to afford a full and fair adjudication | of the federal

contentions raised, either. because the state affords

no remedy, see Mooney vy. Holohan, supra, 1135 or .

» because in the particy cular case the renicdy afforded by >

state law proves in practice unavailable or seriously

inadequate, ef. Moore Vo Dempsey, 261 U.S. 86: Be

parte Darts, 318 U.S. 412, a federal court) should

entertain his petition for habeas corpus, else he would

be remediless. 321 U.S. at 11k.

See, also, White v. e% 324 U.S. 760, 767 (1945)%_

Marino v. Ragen, 332 U.S. 561, 564 (1947) (Rutledge, J..

coneurring) ; Wade v. ase, 334 U: S. 672, 679 (1948);

Young.v. Ragen, 337 U.S. 235, 258 (1949); Darr v. Bur-

_ ford, 339 UTS. 200 (1950). \

* As part of the recodifieation of the Judicial Code in 1945 >

Congress added section 2254, quoted above, which gave

statutory recognition to-the exhaustion doctrine as it had

been developed in the case law. The statutory reviser’s

notes acknowledged : ,

This new section ix dvelaratory of existing law as

affirmed by the Supreme Court. (See Ex parte Hawk,

1944, 64S. Ct. 448, 321 U.S. 114, 86 L. Ed. 572.)

_H. R, Rep. No. 308, 80th Cong., Ist Sess. A180 (1947); see

Young v. Ragen, supra, at 238 n. 1; Darr v. Burford, supra,

at 10-211; Irvin v. Dowd, 359 U.S. 394, 405 (1959). See

also S. Rep. No. 1559, 80th Cong., 2d Sess. 9 Caan Hear:

te “20 ;

ings on i. R. 3914 Before a inetd of the Senate

Judiciary Committee, ‘woth Cong., 2d Sess. 28 (1948).

In the light of the case iaw incorporated into the statute,

ese Noia’s failure to appeal preclude him from federal

habeas corpus relief because of the exhaustion require-

ment in section 22541 The language of that section appears

only to require ‘a.state prisoner to exhaust those state rem-

ecies presently open to him before seeking federal habeas

eorpus. It does not suggest that federal habeas corpus

relief has been forfeited because of a failure to utilize

* some state remedy available in the past but which is no

longer available. The statute speaks of ‘‘remedies avail-

able in the courts of the State,’’ ‘‘an absence of available

State corrective process or the existence of circumstances

rendering such process ineffective,’ and ‘‘if he has the

right under the law Of the State to raise, by any available

_ procedure, the question presented.’

The Supreme Court did not announce a concept of for-

feiture in the-case law development of the exhaustion doc-—

trine. In the leading case of Mooney v. Holohan, supra,

the Supreme Court declared:

' We do pot find that petitioner has applied to the

state court for 4 writ of habeas corpus upon the grounds

stated in his petition here. That corrective judicial

process has not been invoked and it is not shown to

be unavailable. 294 U.S. at 115. :

And in Ex parte Hawk, supra, the case heralding section

2254, it'seems clear that the Court was: referring to cur-

rently available remedies, not-a forfeiture of tlhe peti-

tioner’s right to federal habeas corpus for failing to resort

‘

to previously available state remedies. In that case it

was stated:

But, as was pointed out by the Distriet Court and

Cireuit Judge, petitioner has not yet shown that he

has exhausted the remedies available to him in’ the

- state courts, and he is therefore not at this time. en-

titled to relief in a federal court or by a federal judge:

oe e e- ‘e s

Until [coram nobis 1 in the state courts | hasbeen sought

‘without avail we cannot say that petitioner’s state

remedies have been exhausted. :

; * * : e ® s | s

As petitioner does not appear to have exhausted

his state remedies his’ application will be denied with-

‘ out prejudice to his resert to the soaps indicated

. as appropriate by this opinion. 321 U.S. at 116, 11s.

Noted authority has maintained that in every case in which

the Supreme Court upheld a dismissal of the writ because

of a failure to exhaust state remedies, a state remedy was

available at the time the prisoner a federal - habe ais

corpus. But see Ex parte Spencer, 228 U.S. 652, 660 (1913).

It is conceded, however, that a Gi: to which the

Supreme Court never alluded in any of its opigions, might

have resulted, in some cases, through the runfing of the

period for the alternative remedy during the spending

habeas corpus proceedings. Hart, The Supreme Court,

‘7958 Term: Foreword: The Time Chart of the Justices.

73 Harv. L. Rev. 84, 113 n. 85 (1959).

Judge Parker, the.Chairman of the Judicial Conference

Committee that drafted the Habeas Corpus Act of which

section 2254 was a‘part, has disclosed that the purpose of

a

7s

the section- was to foreclose resort to federal habeas corpus

ouly when relief was still available in the state system. He.

- said the following: —

One of the incidents of the state remedy is [the]:

‘right to apply to the Supreme Court for certiorari. If

a petitioner has ‘failed to make such application. after

the refusal of the state court to release him, he cannot

be said to have exhausted the remedies available- to

him under. state procedure, provided he has the right

. to apply again to the state courts for relief as-a basis.

. for application to the Supreme Court for certiorari.

hg |

The fact that certiorari fronc the Supreme Court to

the state court may be called a federal remedy is not

determinative of ihe question here involved. The cru-

cial matter is that-petitioner still has a right to attack

in the-courts of the state the validity of his conviction

and, upon the record made in such attack, to petition

the highest court. of the land-for.a review. So long as

such right remains, he does not have, and ought not

have, the right to ask a revie Wy one of the lover

federal courts. (Emphasis added.)

Parker, Limiting the Abuse of :-Habeas Corpus,

8 .F. R. D. 171, 177 (1949), quoted in Darr v.

Burford, supra, at 212; n. 34.

It i is sheualtite to interpret the doctrine of exhaustion of ~~

state ‘remedies simply to mean that when both the state and 4

the federal courts are available to a particular state pris-

oner he should go énto the state court first. See Hart, supra,

at 113. If such is the proper interpretation, section 2254 is’.

nu bar to Noia’s present petition for federal habeas corpus.

He ‘has exhausted the only remedy in the state courts eur-

rently available to him, a proceeding in the nature of-

coram nobis.®

..

But we cannot assert: with confidence that section 2254

only refers to present state remedies. Language in certain

recent Supreme Court decisions indicates that interpreting

the scetion to apply only to -the exhaustion. of presently

available remedies would be erroneous. Irrin v. Dowd, 359

U.S. 394, 404-06 (1959) ; Daniels v. Allen, reported sub nom.

Brown vy. Allen, 344 U.S, 443, 486 (1953). See also United

States car rel, Kozicky v. Fay, 248 F. 2d 520 (2 Cir, 1957).

"Assuming that section 2204 doves indeed express a for-

feiture of federal habeas corpus protection as ‘a result of a

past ‘failure to utilize a particular state remedy, Noia would

still go free, if his case is sufficiently exceptional. The

statutory section attempted only to codify the existing law:

of exhaustion developed by the courts. As we pointed out

earlier, the pre-statutory case law on exhaustion did not

provide a rigid bar to. habeas corpus relief; rather, it

recognized exceptional situations permitting the. immediate

issuance of the federal writ. The language of the statute

contemplates that such unusual circumstances can occur

when it speaks of **circumstances rendering [state] process

ineffective to protect the rights of the prisouer.’’ We quote

from the Supreme Court’s opinion in Darr vy. Burford,

supra: i ie 43

tie Ex parte Hawk preseribes culy what -hould **‘ordi-

narily*” be the proper procedure; all the cifed cases

6 Although Noia could apply again for coram nuvbts reliet in the —

New York courts, he is not required to do so before seeking fed-.

eral habeas corpus. Sce footnote 3, supra, Proc v Alen, supra,

at 448-50 & n. 3.

24.

from Ex parte Royall to Hawk recognize that much

cannot be foreseen, and that ‘special circumstances”’

justify departure from rules designed to regulate the

usual case. The exceptions are few but they exist.

Other situations may develop. Compare Moore vy.

Dempsey, 261 U.S. 86. Congress has now made statu-

tory allowance for exceptions such as these, leaving

federal courts free to grant habeas corpus when there

exist ‘‘circumstances rendering such [state] process

ineffective to protect the rights of the prisoner.’’ 2s

U.S. C. §2254. 339 U.S. at 210.

The Court in Frisbie v. Collins, 342 U.S. 519 (1952) like-

wise recognized the possibility of unusual cireumstances

allowing a by-passing of the state channels of review. Mr.

Justice Black stated for a unanimous Court:

As explained in Darr v. Burford, 339 U.S. 200, 210,

this: general rule is not rigid and inflexible; district

courts may deviate from it and grant relief in special

circumstances. Whether such circumstances exist calls

‘for a factual appraisal by the court in each speeial

situation. Determination of this issue, like others, is

largely left.to the trial courts subject to appropriate

review by the courts of appeals. 342 U.S. at 520-21.

We believe that if there are facts in a case so unique as

to make an independent state ground of decision, elyew here

reasonable and adequate, inadequate in that particular case

to bar federal habeas corpus, those facts are likewise suffi-

cient to create an exceptional case within the contemplation

of section 2254 so as to permit the issuance of the federal

habeas corpus writ. Therefore, we have postponed a dis-

cussion of the exceptional nature of Noia’s case until our

consideration of the adequate nd independent state ground

concept, a coneept particularly invelyed here, and which

we pow discuss.

Tor TNoevexpesd ano Abegrate Stark Gitet spor Die aston

The presence of an independent and adequate state

ground for the decision supporting Noia‘’s detention would

les sufficient hatsis for devriving him of lis freedom: quite

apart from the federal Habeas Corpus Act or any other

federal statute. The concept of the independent and ade

quate state ground originated in cases involving direct

review of state court decisions by the® United States Su.

preme Court. Murdock vo Memphis, 87 U.S. (20) Wall)

00, 634-636 (1S75)2 In dealing with this caneept upon

ilirect review by the U.S. Supreme -Court of a state de-,

cision, where the decision of the highest state court rests

upon twe grounds, one federal, the other non-federal, the

Supreme Court has taken the positiop that it is pointless

for it tu pass on the federal issue inasmuch as the result

reached by the state ‘court can stand inviolate on the state

or regardless of the outcome reachable on the federal

point.” It would be a elear infringement of state prerogga-

7 Mr. Justice Frankiurter, dissenting. in Tesi v Dosed, supra, savl

of the Murdock opinion

This, decision bias net unjustitubiy been called one et “the

twin pillars” (the other i. Martin \ Hunter § Lessee, 1 Wheat

304) on which have been built “the mam "ines of demarcation

between the authority of the state legal systems and that ot

the federal system” Hart, The Kelations Between State and

Federal Law, 54 Col 1. Bev. 44, 5032504 (359 CS at Hs)

* The formulation of the Court om Caleforma Petedor Works \

Dacis. 181 US) 38, 303 ODA has become chaste

It ts aNtoniatic tha, in areder tee gave thas coart purasehidtacen

on writ of error to the highest court ot a Stete m which a

ia . ?

tives for the U. S. Supreme Court to ignore the state

ground and to command the result which would have been

followed had there just been a federal question in the case.

By an ‘‘independent’’ state ground is meant one in which

no elements of federal law are present. The state ground

in the present case, failure to appeal, is clearly an‘ in-

dependent ground; therefore we shall not concern our-

selves further with this requirement.® But the meaning

of the requirement that the state ground be ‘‘adequate’’

is crucial to our analysis of the present case amt willbe

discussed at greater length below. ‘To illustrate the doc-

trine of an independent: and adequate state ground in the

sphere of direct federal review, let us suppose that the

highest state court holds a contract to. be void for lack of

consideration and invalid because it violates the Sherman

‘Anti-Trust Act. The Supreme Court would decline to re-

view the -federal anti-trust question because the result

-reached by the state courts is fully supportable on the

non-federal ground of lack of consideration. Cf. Fox Film

Corp. Vv, Muller, 296 U.S. 207 (1935).

decision in the suit could be had, it must appear affirmatively

not only that a Federal question was presented for decision by

the highest court of the State having jurisdiction, but that its

decision was necessary to the determination of the. cause, and

that it was actually decided or that the judgment as rendered

could not have heen given without deciding it. And where ihe

decision complained of rests on an independent ground, not

involving a Federal question and broad enough: to maintain thé.

jucgment, the writ of error will be dismissed by this court

without considering any Federal question that may also have

been presented. |

® For a case involving a ares 5 Be ground, see Smith v.

Kansas City Title & Trust Co., 255 U.S. 180 (1921).

a

a

. 27

The next step in our analysis is to recognize that the

‘State ground: that is independent and adequate need not’

be a substantive law ground, but can be a rule of state

procedure, See, e.g., Herndon vy. Georgia, 295 U.S. 441

(1955). In inost cases a failure to raise or preserve fed-

‘eral questions in accordance. with the’ established state

procedure will result in a loss of the right to present these

issues to the U.S. Supreme Court because federal review

of federal issues is cut off by an independent and adequate

’

state procedural ground for decision. E.g., Edelman v.

California, 344 U.S. 357 (1953). For example, if a party

fails to appeal from an adverse judgment within a certain

time limit that judgment will become final as a matter of

state procedural law. If despite failure timely to appeal

the losing litigant nevertheless seeks review in the U. S.

Supreme Court, that Court will probably answer him that

regardless of his federal contentions, the result in the -

trial court must stand because. of the state>rule of proce-

dure. As is true.for state substantive rules, of course the

state procedural rules have to meet the requirement of

adequacy if they are to cut off Supreme Court determina-—

tion of the federal issues. . 2

With this background of the application of the doctrine

in cases .of direct review, we move to its relevancé in

federal habeas corpus vroceedings, Daniels vy. Allen, supra,

at 482-86 instructs us that the doctrine. also applies m

habeas corpus cases. Mr. Justice Frankfurter, dissenting

in Irvin v. Dowd, supra, stated the same proposition, and

none of the Court disagreed.

—— “\~

28

The problem presented by this case is as old ‘as the

Union and will persist as long as our society remains

& constitutional federalism. It coneerns the relation

of the United States and the courts of the United

States to the States and the courts of the States. The.

* federal judiciary. has no power. to sit in judgment ~

upon a determination of a state court unless it is

found that it must rest on disposition of a claim under

federal law. This is so whether a state adjudication

comes directly under review in this Court or reaches

‘ us by way of the limited scope of habeas corpus juris-

diction originating in a District Court. 359 U. S. at

407-408. |

& we see, the concept is just as important in cases of

federal habeas corpus for state prisoners as it is when

there is direct federal review of state court decisions. Just

as it would be an encroachment on the prerogatives ot

the state for the Supreme Court upon direct review to dis-

regard the state ground, eyually—if not more se—would

it be a trespass against the state for a lower federal court,

upon a petition for habeas corpus, to disregard the state

ground in granting rclief to the prisoner. This is our fed-

eral system in operation. In such a system certain mat-

ters are reserved for governance by the states, other matters

are to be determined according to federal law. And in such

a system of government, where two sovereignties func-

tion within the same territorial boundaries, cases, such as

the present one, will inevitably arise in which the law of

both governments will be relevant and will have to be ac-

commodated. |

Since we have shown that an adequate state ground of

_ decision will preclude relief under federal habeas corpus,

cer.

le

the question we must face is whet! -r Noia’s failure to

appeal his conviction is a state procedural ground ade ~

quate to bar his path to, freedom under the federal writ.

This question of adequacy is one to be determined by

federal law. Staub ve Basley, 355 U8. 313, 318-19 (1998) ;

see Rogers ve Alabama, 192 U.S. 226 (1904). Actually,

in deseribing the state ground, the term *‘adequate’* em-

braces two dimensions of adequacy. . First the state ground

must be sufficiently broad-based to support the total re-

sult reached by the. state court—here the relator’s con-

vi¢tion and sentence. The state round in the present

case clearly satisfies this part of the requirenient of

adequacy, The second part of the requirement is that the

state ground be free from certain infirmities so that it

will justify a foreclosing of consideration of the federal

issues Involved in the ease. This part of the requirement

of adequacy is better understood through explanation

than through Cefinition, There are at least four ways in

which the state ground can be considered inadequate, with’

the result that the federal court can consider the merits of

the federal issue. First,.if the state ground is interjected

into a-ease and relied upon by the state court in order

to evade the federal question, the state ground is inade-

quate. Rogers v. Alabama, supra, at 231 (1904); Datis v.-

Weehsler, 263 U. S.22, 24 (1923): Ellis v. Diron, 349 U.S.

458, 463 (1955) : soe Atlantic Coast Line R.R. v. Mims, 242

U.S. 582 (1917). There is no suggestidn here that -the

state, by relving upon the defendant’s failuré to appeal

his conviction, was doing so in order to evade its obliga-

tions under federal law. Second, if the state rule were

30

applied ‘so as to discriminate against this particular pris-

-oner, we could say that the ‘state ground for decision —_

_inadequate. Cf. Reitz, ‘supra, at 1337 n. 86, 1341. But ho

‘discrimination has been practiced here, as any other pris-

oner who did not appeal would also be barred from relief.

Third, -if the state rule in question were found by the

federal court not to have fair and substantial support in

state law, the rule could be termed 2g Ore Staub v.

Baxley, 355 U. S. 313 (1958) ;. Ward v./Board of County

Comm’rs, 253 U.S. 17, 22 (1920) ; see Patterson v. a wbhama,

294 U. S. 600, 604-05 (1935).. But there appears to be

sufficient support for the state rule in this case. See

People vy. Rizzo, 246 N.Y. 334, 158 N. E. 883 (1927);

People v. Sadness, 300 N. Y. 69, 89 N. E. 2d 188, cert.

denied, 338'U. S. 952 (1950); People v. Kendricks, 300

oN. Y. 544; 89 N.. E20 257 (1949). Finally, even if there is

no intention to evade the rights of the prisoner guaranteed

to him by federal law, but the rocedural rule never-

theless is an unreasonable bar to the effectuation of federal .

rights, the Supreme’ Court has declared the state ground

must not prevail. Davis v. Wechsler, 263 U. S. 22 (1923);

Williams v. Georgia, 349 U.S. 375, 399 (1955) (dissenting .

opinion); see Michel. v. Louisiana, 350 U. S. 91 (1955);

National Mutual Bldg. and Loan Assoc. v. Brahan, 193

U. S. 635 (1904); ef. Ellis v. Dixon, 349 U. 8458, 463

(1955). However; in the general run of cases no state

‘rule of procedure is more reasonable or fair than that a

conviction becomes final upon the defendant's failure to

appeal, provided, of course, that he was under no handicap

at the time of his. .wiction which prevented him from

noting the appeal. bs

31

Thus we come to the last.scene in this human drama. Is —

there an adequate state ground in this case dooming

relator to life imprisonment? Our auswer is No; the state

ground here is inadequate. We must realize that adequacy

is a term of relativity. No state ground is entitled to

unqualified deference. As we noted in the last paragraph,

for the state ground to be adequate, it must be reasonable.

Earlier in the opinion we pointed out that the Supreme

Court in habeas corpus cases has consistently recognized

that extraordinary circumstances night arise which would

permit recourse to the federal writ even though certain

state procedures were by- passed. We do not believe that’

the Courf has expressed in those cases a closed list of

exceptions.. See Frisbie v. Collins, 342 :U. S. Dd19, 520-21

(1952). We recall that the Court in Darr v. Burford, supra,

said: **The exceptions are few but they exist. Other situa-

tions'‘may develop.’* 339 U.S. at 210. i

In determining whether the releyant state ground. is a

reasonable bar to federal rights—or whether the case’ is

sufficiently exceptional so as-to excuse an earlier omission

of a state procedure—the federal court should consider

the clarity and the magnitude of the substantive federal

right violated. The reasonableness, and.hence the adequacy,

of the state procedural bar, is inversely proportYonate to”

the ‘importance of the federal right and*the clarity of its

violation. Even in the‘ease of Frank +. Mangum, supra,

which in certain respects announced a very limited, néw.

obsolete, scope for © deral habeas corpus, the Court as-

serted:

* whith the :

™=y

[T]he due process of law guaranteed by the Fourteenth

Amendment has regard to substance of right, and

net to matters of form or procedure; * * * it is open

tu the courts of the United States upon an applica-

tion for a writ of habeas corpus to look beyond forms

and. inquire into the very substance of the matter,

to the extent of deciding whether the prisoner has

been deprived of his liberty without due process of

law, and for this purpose to inquire into jurisdictional

. facty whether‘they appear upon the — or not

ee =37-U.S. at 331. oa

‘

We hasten to add that we are not wneuontia that.a dis-

trict judge should make a full review of the substantive

federal issue at the outset of each habeas corpus proceed-

ing in order to determine the adequacy of a state ground

8 asserts to be present. Such an interpreta-

tion would make the concept of an adequate state ground —

“meaningless in practice. We do assert, however that if,

us a result of a peculiar turn of events, it is obvious with-

out detailed inquiry that a prisoner has been deprived of

a significant federal right, the federal judge, in passing

on the adequacy of an asserted state procedural bar,

should give great weight to the clear violation of that

federal right. Cf. Darr v. Burford, supra, at 202, 218. And

if it should further appear without extended inquiry: that

the vindiéation of the ‘prisoner's significant federal right

would be almost certain to result in his freedom instead

of the long confinement to whieh he was sentenced, it

would be difféult indeed to conceive of any procedural

miscue gredt enough to justify the court’s refusa] to look

at the posture of the substantive case. Let us consider

Y . 33 “

the reason why a state proeedural ground is entitled to

the respect it receives. It is that the state has-a right to

administer. its criminal justice in an orderly fashion. ka

parte Spenevr supra, at 660. This is to assure to the state

and all the defendants on a ‘erowded criminal docket that

each casé will be A\fforded fair, full, and equal treatment,

lnnoce nt defendants must occasionally suffer: along with

the guilty ones in order te support this end. The age

finger of criminal justice cannot be made to stop and 1

examine the contentions.of every convicted defendant, ones

he has placed himself outside the channels of a fair state

appellate review. If this were not so, the disruptions and

confusion created by perpetual and irregular reconsidera-

tion of those claims would result in insufficient attention

to the bona fide assertions of Those who have complied —

with the procedural rules- Jt.is not inconsistent with our

notions of justice to let some ‘innocent person® suffer for

failure to be vigilant in the protectio

when we cannot identify who the innofent ones are. “But

when the unusual ease arises in which

it is obvious that on the substantive merits, as distinet

from the procedural lapse, the prisoner should not. be

‘imprisoned, and those nierits .are of constitutional magni-

tude, any explanation advanced for the purpose of justify

ing the prisoner's continued detention is much less con-

vineing. But, as we pointed out above fortunately the

_ presence of an independent state ground is not always

an absolute bar to the vindication of rights: guaranteed

by the federal Constitution. Even in our federal form of

government ir which the states make their own rules of

procedure, we do nof lose sight of the fact that the pur-

.

their rights __

t the very outset.

_7™~, pose of all procedure is to- determitie and effectuate sub-

stantive rights, and not the reverse. There is. no more

unenlightened or cruel anachronism than an unbending re-

liance upon the niceties of procedure in derogation of sub-

stantive rights. Procedures exist or ought to exist for the

_ purpose of effectuating rights, not of denying them. Cf.

‘Sheldon v. Metro-Goldwyn Pictures Corp., 106 F. 2d 45,

- 51 (1939), aff'd 309 U.S. 390 (1940). When the substan- °

tive rights are clear, we should be must hesitant to sacrifice

those rights on the altar of local. practice." 4 7

We consider the posture“of Noia’s case in the. light of

the principles discussed above. The right of the defendant

» be tried without the. introduction into evidence of

ae wrung from him against his will is a consti-

tutional right of *the greatest magnitude. In fact, since

the confession constituted the sole basis for conviction, it

eah be said that this unconstitutional deprivation pre-

sented ‘a substantial claim [going], to the very foundation.

of a proceeding.”’ Brown v. Alle n, 344U. S. 443, 508 (1953 )

(opinion of Frankfurter, J.): And’ there is no doubt but

* that the confession of this prisoner was in fact coerced.

We quote from the opinion of the district court below:

*.

[T]here is no proceeding available to him in the State, .

apart, of course, from executive clemency, which can

effect. his release from a patently unconstitutional

detention. . . a,

4

1© Cf. Davis v. Wechsler, 263 U.S. 22, 24 (1923) (Holmes, Joy: /

Whatever springes the-State may set for those who are |

°. endeavoring to-assert rights that the State confers. the asser- ~

tion of federal rights, when plainly and reasonably made, is

not to be defeated under the name of local practice.

~ Seek”,

Seeape

35

‘vet a cursory reading of the opinion of the Court

of Appeals for the Secondg-ircuit in the Caminito case

(222 F. 2d 698) indicates that all of the defendants

were cocreed, and the Court of Appeals of the State

‘of New York in the. Bonino case has recognized. this

(1 N.Y. 2d 752, 152°N. Y. S. 2d 298, 185 N. BE. 2d ld

183 F. ae at 220 & ns.

If it were not igneals tiiat this. relator’s present deten-

tion obviously rests upon a violation of his constitutional

right to a trial by due process of law, it is also virtualky

certain that Noia would remain free if-he were ever re-

live used, Often the setting aside of a prisoner’ x conviction

be ‘cause of. trial defects merely results in a new trial in

. w

which he is convicted again under proper procedures; but -

the strange turn of events in this ease appears to make it

unlikely that relator would again be convicted. We quote

again from the district judge:

[M]y dismissal of the writ leaves one codefendant

incarcerated for the: term of life imprisonment while

the other two codefendants, convicted on the basis-%f

precisely the same coereion, are virtually scot free

Even though Bonino and Caminito still remain’ under

indictment it is. most highly improbable that they will

ever be tried again since the State presented no eyi-

dence but the presently unavailable coercion eanfes-

sions in 1942. ‘The obtaining of new evidence would

appear at this late date impossible. See People

Caminito, 4+ A. D. 2d 697, T6°N. Y. 5. 2d 699. 183 F.-

Supp. at 227 & n. 6.

36

The coincidence of these factors: the undisputed violation

of a significant’ constitutionat right, the knowledge of this.

violation brought home to the federal court at the incipieney

of the habeas corpus proceeding so forcibly that the state

made no effort to contradict it, and the freedom the relator’ ~

codefendants now have by virtue of their vindications of

the identical constitutional right leads us to conclude that

the state procedural ground, that of a simple failure to

appeal, reasonablé enough to prevent federal jndicial in-

tervention in most cases, is in this particular case unrea-

sonable and inadequate. The unique fact pattern in this

case is such that few prisoners will find the release of Noia .

to have any applicability to their situations. Be ‘that as it

may, it still does not sit well on the consciences of civilized

-men that a man should spend the rest of his life in contine-

ment when it is patent to all that the only reason for the

detention is that he dig not timely appeal his convietion.

We find no precedent that compels us to deny relator’s

petition. There are two leading cases in which the Supreme

Court, because the pétitioners failed to. take certain steps

in the state appellate protess, has refused to consider their

contentions upon habeas corpus that their convictions were:

unconstitutionally obtained. These. cases are Daniels x.

Allen, supra, and Darr v. Burford, supra. In the Daniels

case the allegations of unconstitutional treatment embraced

discrimination in the jury lists, coerced confessions, the

jrocedure by which the state court determined the volun-

tariness of the confessions, and the refusal of the state

court to entertain the relator's other constitutional claims.

It was far from clear at the outset of the habeas corpus

>» 7 -

>

oe

proceeding in that Case that there was any merit: tu the

-relator’s contentions. In faetin the case of Brown v. Allen,

decided contemporaneously with Danrels vo Allen, and ap-

pealed from the same state, North Carolina, the Supreme

Court held that there Was no unconstitutional cise rimina-

tion in the selection of jury panels. Likewise in Darr vy.

Burford, the merits of the relator’s federal contentions

had not been judicially examined or settled atthe time of

his habeas corpus petition, or even later. * His contetitions

were lack of counsel and inability adequately to prepare his

defense. 7 |

In a third casey Michel ef al. v. Louisiana, supra, the

petitioners alleged they had been denied due process be-

“cause of the systematic exclusion of Negroes from the grand

jury panels. A majority of the Supreme Court refused to

consider this constitutional contention because each peti-

tioner had failed, as required bya Loutsiana statute, to file

“a motion in the state court challenging the composition of

his particular grand jury before the third Judicial day fol-

lowing the end of that ‘yrand jury's term. Though Mr.

Justice Black, in dissent, announced that it was undisputed

that only once in people’s memory had a Negro ever been

selected as a grand juror in the. particular parish involved,

this fret was not referred to in the majority opinion, Michel

is distinguishable from cour .case, for in diseussing the

petition of one of the three defendants whose petitions

were heard together, the majority of the Court stated that

Louisiana had introduced at trial admissible evidence

against the defendant which was likely to be unavailable *

to the state if a retrial were to be ordered, 350 U.S. at

_

.

38

99. In our case, on the other hand, the only evidence which

the state put in or could liave offered against Noia at the

time of his trial, his coerced confession, Was inadmissible.

The leading cases in which we of the Second Cireuit have

refused to entertain the relator’s federal contentions be-

cause of a prior failure to pursue a complete journey

through the state appellate system were Ll nited States ex

rel. Williams v. LaVallee, 276 F. 2d 645 (2 Cire 1960) and

United States ex rel. Kozicky v. Fay, 248 F.2d 520 (2 Cir.

1957). In the Jilliams case the relator alleged a coerced

confession, but it was no more than allegation in his peti-

tion when Williams sought federal. habeas corpus. In

Kozicky, similarly, the allegation was a coerced confession,

but, likewise, there was no certainty at the outset: of the

habeas corpus proceeding, as there is in the present case,

that the relator there had truly been coerced.

On the other hand, we are led to conclude from ‘our re-

view of the cases in the U.S. Supreme Court in which it

was obvious from the undisputed facts on appeal that an

important federal right had been denied a deMndaut in a

state court, and assertion was made that the defendant had

not complied with applicable state procedure-so as to avail

himself of the federal right, the Supreme Court has not

hesitated to afford some form of relief to thg appellant.

Patterson v. Alabama, 294 U. S. 600 (1935), a case that

reached the U.S. Supreme Court from a state supreme

court on a writ of certiorari, involved facts very similar to

those in the instant case. Patterson and one Clarence

Norris, Negroes, were indicted and ‘convicted of rape in an

%

3Y

Alabama state court. Norris asserted a denial of the equal

protection of the laws as guaranteed to him by the Four-

teenth Amendment on the grouud that Negroes had been

systematically excluded from jury service, As Caminito,

in the present series of cases, Norris properly preserved

his Fourteenth Amendment objection through the state

proceediigs ; and in Norris ve Alabama, 204 U.S. 3s7

(1935), the United States Supreme Court) reversed his

conviction because of this depris ation of his constitutional.

right. Meanwhile, Patterson was trying to assert the same

right. He had been tried separately from, but at the same

time as, Norris, and upon the same facts. Thus, it was

clear that Patterson, as Norris, had been denied his con-

stitutional right to equal protection of the laws, But Pat-

terson’s attorney had not made a motion for a new trial

or filed his bill of exceptions within the requisite time limits

under Alabama law; and. so the state supreme court re-

fused to consider, Patterson's contentions that his rights

under the federal Constitution had been denied him. The

U.S. Supreme Court dealt with whether these Alabama

state procedural rules presented an adequate non-federal

ground to sustain Patterson's conviction and foreclose

adjudication upon Patterson's federal right. 294 U.S. at

602. Mr. Chief: Justice Hughes, for a unanimous court,

reversed the Alabama conviction and remanded the case

to the state courts. He emphasized the exceptional situa-

tion presented by a reversal of the conviction of Patterson's

associate on constitutional grounds, a reversal that made

it clear that Patterson too had been denied his constitu-.

tional right. The Court coneluded that upon remand’ the’

+

40 °

state court might well hold that it had power to entertain

Patterson's federal contentions. In the Patterson litiga-

tion the Supreme Court remanded for further state court

consideration. Such a disposition was appropriate ins that

case. The remand secured the constitutional right to the”

petitioner with the slightest possible interference with the |

‘state’s procedures.'' Such a course fs not open to us; we

can only remand to the district court with instructions to

issue the Great Writ. But the Supreme Court's opinion

in Patterson teaches us one important truth crucially rele-

vant to the case before us. In passing upon the adequacy

of a state procedural ground asserted as a bar to a federal

adjudication upon a clear violation of a federal right, the |

Supreme Court will consider whether the alleged violation

of the federal right has already been fully proved and

therefore undeniably demonstrated. .

A similar case was Williams v. Georgia, 349.0. S. 3875

(1955), also before the Supreme Court through the grant

of a writ of certiorari. After conviction for murder and

while under sentence of death, the petitioner, a Negro. filed

an extraordinary” motion’ in the state trial court for a

new trial on the ground of unconstitutional discrimination

against Negroes in the selection of a jury panel, but the

state courts refused to entertain the motion because the

defendant had not objected to the jury panel before trial.

However, six months before Williams’ motion was ‘filed in

the Georgia court, the United States Supreme Court had

decided aflother case in which it had declared that the

1! Patterson was retried and, apparently with the constitutional

defect cured, was again convicted. Patterson v. State, 234 Ala.

342, 175 So. 371 (1937).

41

:

method of selecting jury panels in Georgia’ was’ uneonsti

tutional upon the ground asserted by Williams. deery v.

Grearqgi, 340 US. 509 (1993). In fact, upon oral argument

before the U.S. Supreme Court in Williams, the state con

eeded that Williams had been deprived of his constitutional

" rivht: Thus, the Supreme Court way again faced with the

Kind of problem presented in Patterson, on the-one hand

_a clear violationf of a consmtutional right, but, on the other,

a failure to followgpne of the procedural rales of the rele

vant state. he Supreme Court concluded that it) should

pass upon the violation of the federal rights) of . the

: petitioner,

- We conelude that the trial court and the State Su-

_preme Court declined to grant Williams’ motion though.

‘posses¢ed of power to do so under state law. Since his

motion was based upon a constitutional objection, and

one: the validity of which has in ‘prineiple been sus-

tained here, the discretionary decision to deny the mo-

tion does not deprive ‘this Court of jurisdiction to

find that the ‘substantive issue is properly before us.

349 ULS. at 389.

Beheving it wiser, however, to remand the case to the

state courts for reeonsideration of the procedural ground

used there to bar petitioner, the Supreme Court followed a

~course similar to that which it followed in’ Patterson. v.

Alabama, supra, Initially in Williams, whether to grant

the defendant’s motion for a new trial was within the dis-

cretion of the Georgia trial court. And the Supreme Court

decision in Avery was before that Georgia court when it

first considered Williams’ motion. But even though the

state Judgment’ was one within judicial diseretion, ane

whether to exercise that discretion would normally have -

been strictly a matter of state procedural law, neverthe-

less, Mr. Justice Frankfurter, for the majority. of the Snu-

preme Court, announced that federal courts could entertain

the federal issues. 5

Finally, we mention New York Cent. RR. v. New York:

and Pa. Co., 271 U.S. 124 (1926). In that case the Public

Service Comunission of Pennsylvania held that the railroad

had excessively charged the shipper and ordered the rail-

road to repay the amount of the excess. The Supreme Court

of Pennsylvania affirmed the order and the railroad sought

review by the Us S. Supreme Court. But under seetion

208(a) of the Transportation Act of 1920, 41 Stat. 464,

it was obvious that this order was impermissible without

the approval of the Interstate Commerce Commission, which |

had not been granted. Nevertheless, the shipper argued,

and the state courts agreed, that the railroad had waived

its rights under section 208(a) by not appealing a similar

earlier decision of the Public Service Commission to the

Pennsylvania Supreme Court. Stressing the clarity of the

substantive point, Mr. Justice Holmes for a unanimous

Court reversed the judgment of the state court, thus vin-

dicating the’ federal right despite the state procedural: |

point.”

12 The earlier complaint did not result ina final order, and, there-

fore, could never have reached the U.S. Supreme Court for

review. However, that litigation, although not involving a final

order, was appealable to the state supreme court. [twas the rail

road's failure to appeal to the state cou.t which presented the

potential adequate state ground. The finality of the first proceed

ing before the state commission and their chances of reaching the

U.S. Supreme Court could not have resolved the question whether

the railroad’s failure to appeal in the. state svstem. was an adecnate

ground of decision sc as to cut off federal review of the federa!

issues. }

il]

45

CONCLUSION 0

The importance of this litigation has led us to consider

* more than the single issue presented to us on appeal-—

that of the proper “interpretation of ‘the language of 2s

“T. S.-C. .§2254. . This extraordinary case required an ex-

amination of the law. involving ‘not only the | so-called

“exhaustion of remedies" concept byt also the other con-

qa cepts present in this important and difficult area.

In the light of the authorities and the precedents, we

find our duty clear. °

“The order of dismissal is reversed and the case remanded

to the district court with instructions to issue the writ

and to order that the prisoner's conviction jbe set) aside

and that he be discharged from custody unless forthwith

s

caecorded a new trial. ;

We are indebted to the Legal Aid Society. and to its

appeHate counsel for a most able presentation in‘relator’s

behalf. a ;

Moore, Circwt Judge (dissenting) :

The function of the federal courts in a habeas corpus

. proceeding’ brought to test a state court conviction chat-

lenged as invalid under the Fourteenth Amendment for

want of due process is, not to substitute their own concep-

tions of substantive and procedural justice for that of thé

state but rather-to determine whether the state has denied

the relator due process. of law. Thus. attention must be

concentrated upon those processes made available to: rela-

2° +s

—

44

tor by the state to assure him of adequate opportunities and

facilities to claim and to have adjudicated his constitu-

tional rights. The lengthy opinion of the majority, while

paying occasional lip service to certain fundamental and

well-established jurisdictional principles relating to federal

review of state convictions, actually repudiates in radical

fashion the very principles developed over the years by

the Supreme Court. The doétrine now enuneiated by the

majority is that whenever a group of appellate judges

wish to depart from previously settled principles, they

%9

may find that ‘‘extraordinary cireumstances’’ exist and

‘that such a finding entitles them to ignore on an ad hoc

basis. all‘ otherwise applicable principles. Rez alizing “that

such a declaration has alarmist implication’, it will be

necessary ‘to analyze the facts, the law and the majority

opinion rather critically lest the cry.of ‘‘walf-wolf’” rouse

‘in vain those watehful of the administration of criminal

justice.

On May 11, 1941, Noia, Bonino and Caminito were ap-

prehended and thereafter charged with. first-degree mur-

der; Upon a jury trial, they “were convicted. Cle mency

was recommended by the jury so that sentences of life

imprisonment instead of death were imposed. Bonino and

(‘aminito. appealed through the state courts and ‘sought

certiorari from the Supreme Court which was denied, Noia,

the relator here, having been advised by counsel of’ his

right to appeal, chose not to do so. Qn the habeas corpus

proceeding, there was testimony given by Noia’s trial coun-

sel that Noia did not wish to risk°an appeal which, if: sue-

cessful, might result in a re-trial upon which, if convicted,

“

issues.

: 45

the death penalty: might be imposed. Noia testified that

he had no funds to retain-ap attorney to prosveute an

appeal and. did not wish to put his family further inte

debt. The trial court made no findings on these factual

As a result of the court: procecdings set forth in the

majority @pinion, Bonino and Caminito’ tind themselves

relieved of their judgments of conviction because of deei-

sions that coerced confessions were’ used against them.

Quite naturally, Noia regrets his original decision not to

appeal-and, despite this failure, wishes to enjoy the same

benefits as his former co-defein ants. And so he now argues

that, althotfgh he has knowingly. and voluntarily failed to

appeal and no longer has the right. to appeal, he may still

substitute federal haleas corpus for the state ‘provided

appellate procedure which he chose not to pursue,

Were such an argument to be, accepted ax sound, any \-

defendant convicted in a State court after a trial, in which °

an allegedly coerced confession has been used and in which

the question of coercion has been fairly submitted-for jury

determination, can in the event of an adverse decision

obtain a new trial of the identical issue before a federal

judge merely by allowing the time to appeal to elapse and

then applying under Section 2254 for a federal writ. To

the majority, such failure is without legal significance

because:it should ‘not sit well on the consciences of civilized

men that a man should spend ‘the rest of his life in con-

finement When it. is patent to all-that the only reason for

the detention is that he did not timely appeal his convie

tion’’ (Maj. Op.,-p. 3135). — . ;

46

In order to accomplish the result they desire, the ma-. °

jority have to find that Noia’s right to habeas corpus was

not barred by any one of three well- established rules of

federal review: (1) that a party cannot seek to have a con-

viction set aside on the ground that his constitutional rights

were violated if he has intentionally waived his right to

assert that claim; (2) that federal habeas corpus is not.

available to state prisoners who have not exhausted their

state remedies, : 28 U.S. C. $2204; and (3) that state con-

victions are not subject -to federal review if there is an

adequate state ground which will sustain ‘the conviction.

Thus, ** The first question before us is Whether inasmuch

as his gonviction.was not appealed, Noia waived his un-

. deniable constitutional right of being tried without his

coerced confession in evidence’? (Maj. Op., pp. 3109- 10). In

answering this question, the. majority starts out by pur:

porting to adhere to legal principles and by coneeding

that ‘‘waiver is ordinarily ‘an intentional relinquishment

or abandonment of a known right or privilege.’ Johnson v.

Zerbst, 304-U. S. 458, 464 (1938).°" Next they recognize

that, ‘‘It would seem that & conscious and willing fatlure

to appeal aN indeed be a form of waiver. Brown v.

Allen, 344 U.S. 448, 508 (1953) (opinion of Frankfurter,

ai.” O sade Nola knew that a ‘*coerced"* confession

had been used against him on his trial. His failure to

** enough. What better

exercise of judgment than to exercise it in favor of saving

appeal was *‘conscious and willing

his life. The majority ‘‘cannot believe that Noia would

consciously and willingly have surrendered his constitu-

tional right had he known then what he knows now:".

2

47

Nor can 1. What defendant would ever plead guilty? e

waive for good cause his right to appeal if he knew in

advance that he would be acquitted or that his conviction’

would be revérsed and the indictment dismissed... Never-

theless, the decision of the majority is that ‘‘relator did.

not waive his right under the Fourteenth Ainendment not

to be tried and convicted solely upon his coereed contes-

~ sion.’’, and that despite the adequacy of State appellate

procedure, Noia was not, required to use it because ‘it was

not at all clear that Noia could convince an appellate court

of the unconstitutionality of -his treatment’*) (Maj. Op.,

p. 3112). : , A n ;

Since the question of Ww vhiethet Noia intentionally’ waived

his right to ¢laim that a-coereed confession «was used

against him involved an issue of faét, it is not proper

for the majority to substitute its speculation and its con-—

clusions as to why Noia failed to appeal for the evidence

actually presented -to the district court and to formulate a

judgment were based on facts how known rather than

on the facts existing at the time of the conviction, As pre-

viously mentioned, in the hearing before the district court

Noia’s trial counsel testified for the state that Noia did

not appeal® because’ he feared that: on retrial the death

penalty might be.impo-ed. If we accept this as true, it is

clear that Noia intentionally waived his right to claim that

‘a coerced confession was used against him.” Although this

testimony was contradicted by- Noia‘s testimony, the dis-

trict court did not make any finding 6n this question be-

cause it believed that its decision on the £2254 issue made

such a finding unneecssary. 183 F. Supp. at p. 225 n. 4.

. '

48

Thus, even if the majority were correct in holding that

Noia’s right to federal review was not barred because of

a failure to exhaust state remedies or by an adequate state

_ground, this court should not order the district court ‘to

issue the writ because there is. still a question of fact on

‘the issue of waiver that must be decided by the’ district

court. | |

The majority next turns to the question, “whether N Olas

failure to appeal hi¥ conviction precludes him from relief

are the Great Writ because of the requirement in 2S

.S. C. 62254 * * * that a petitioner exhaust’ his state

pee before seeking: federal habeas corpus.*’ While ree-

O_NiZing, that “language in certain recent Supreme Court

decisions indicates that interpreting ithe section to apply

only to the exhaustion of presently available remedies

would be erroneous” (Maj. Op., p. 3123), the majority finds

it plausible to interpret (2254 ‘simply to mean that when

both state and federal cousts-are available toa particular

staté prisoner he should go into the state eourt first.’’

Since I believe that Noia is not entitled to federal habeas

eorpus because his conviction is supported by an adequate

state ground which precludes federal review (to be dis-

eused infra) and also because he probably waived his

constitutional claim, there would be little to be gained from

my setting forth extensively. my views on whether ‘2254

applies to past as well as.present state remedies although,

in niy opinion, a-more reasonable reading of the statute

would be one which would not permit a defendant to fail

wilfully to av. il himself of the due process which the state

accords him ‘and then claim exhaustion of remedy. How-

49 ‘

‘\ :

ever, since the majority have chosen to+deal with this

question at length, they should have given some considera-

tion to the question, which will no doubt plague the dis-

trict courts, namely, how does this decision affeet our

prior ruling in United States o4 rel. Nozicky v.-Fan, 2

Cir, 1957, 248 F.2d 520. In Nosicky. a ease in which the

defendant had failed to appeal to the New York Court of

Appeals from a state court conviction, the author of the

majority opinion in this case said (for a unanimous panel),

“Tf the state provided such a remedy (i.e., an appeal)’ and

the petitioners failed to take advantage of it, we hold they

cannot obtain a writ of habeas corpus from a federal court:

This result is a necessary consequence of 28S U.S. CLA,

62254." 248 F.2d at 522. Tle continued, ** But, where the

‘failure of a prisoner te obtain relief is due to his own

inaction, 28. U.S. C. A. 62254 prohibits intervention by the

federal courts."’ 248 F.2d at 523. Does the majority wish

to overrule Nozicky comptely or would they hold that the

decision was right but the reasoning was wrong? What

of the statement in Nozicky. that “ait would be unseemly

in our dual system. of government. for a federal district

court to upset a state convigtion Without an opportunity

to the state courts (sic) to correct a constitutional viola-

tion’’ (248 F. 2d at 623, quoting from United States ex rel.

Marcial v. Fay, 20 Cir., 1957, 247 F.2d 662)?

Lastly after conceding that ‘tan adequate state ground of

decision will preclude’ rélief under federal habeas corpus,”

the majority pose the qnestion: ‘* Whether Noia’s failure

to appeal his conviction is a-state procedural ground ade-

quate to bar his path to freedom under the federal writ"”

50

(Maj. Op., p. 3128). Thus, the majority has “come. to

the last scene in this human drama’ *‘

life imprisonment.’’ Legal prinviples having failed to pro-

dooming relator to

duce the desired result, resort must be had to a tour de

force by the fiat that ‘‘No state ground is entitled to un-

qualified deference’? and ‘* adequacy **

‘ta term of relativity.”’

to be adequate, it must be reasonable,

in any event is but

After all, ‘‘for the state ground

and what could

be more unreasonable than requiring a defendant totappeal?

From here on the denouement comes rapidly. The

‘‘simple failure to appeal, reasonable enough to prevent

federal judicial intervention in mest cases, is in this par-

ticular case, unreasonable and inadequate.

%9

However, the adequate state ground doctrine, namely,

that a federal court. cannot consider the merits of a con-

stitutional claim alleged to invalidate a state conviction if

_that claim was not presentéd to the state courts by the use

of all reasonable state procedures, cannot be disregarded .:

as easily as the majority assumes. As Mr. Justie¢e Frank-.

furter said in reference to this doctrine :

Something that goes to the very structure of our fed-

eral system in its distribution of power between the

United States and the States is not a mere bit of

red tape to be cut on the assumption that this Court

has general diseretion to see justice done. Nor is it one

of those technical matters that laymen, with more con-

fidence than understanding of our ‘constitutional sYS-

tem so often disdain. [Irvin v. Dowd. 359 U.S. 394, 408,

1959 (dissenting opinion).]} ' - bata,

# The majority in /roin never questioned.the validity of the adequate

state ground rule for they read the state court decision as resting

on the federal ground.

ol

The decision of the Supreme Court in Daniels vo Allen,

decided sub nom. Brown vy. Allen, 344 US. 443, 1953, clearly

controis the issues in this ease, and requires affirmanee of

the dismissal of the writ. The petitioners in Daniels had

made timely objection to the introductioti in evidence

against them of confessions which were alleged to have been

coerced and had alxo made timely motions at their trial

to quash the indictment and challenge the array, alleging

discrimination against Negroes in the selection of the grand

and petit jurors. On appeal, the Supreme Court of North

Carolina refused to examine these constitutional claims

because the statement of the case on appeal had been filed

one day after the period of limitation for such service.

After the Supreme Court had denied certiorari and the state

court twice denied leave to apply for cordm nobis, the peti-

tions for habeas corpus were filed alleging the use of a

coerced contvssion and diserintination in the selection of the-

‘grand and petit jurors, The Supreme Court in affirming the

denial of the writ refused to pass on the substance of the

federal claims because ‘the failure to serve the statement

of the case on appeal seems to us decisive * * * "344 ULS.

at 483. In holding that the state procedural ground was

sufficient to preclude collateral review of constitutional |

claims, the Court said,

The writ°of habeas corpus in federal courts is not an-

thorized for state prisoners at the diseretion of the

federal courts. It is only authorized when a_ state

_ prisoner is in custody iit violation. of the Constitution

of the United States. 28 U.S. C. £2241. That fact is

not to be tested by the use of habeas corpus in lieu

of an appeal. (344 U.S. at 485.)

52

While the majority admit that Daniels established that

an adequate state.ground of decision will preclude relief

under. federal habeas corpus, they attempt to avoid the

application of, Daniels by claiming that there are **excep-

tional circumstances”’ in this case which justify the disre-

garding of the adequate state ground for decision. How-

ever, an examination of the facts in the Daniels case and in

Michel v. Louisiana, 350 U.S. 91, 1955, shows that the rigor

with which the Supreme Court has applied the adequate

state ground rule precludes the making of an exception.

In Daniels the petitioners who were under sentence of

_ death did not fail to appeal at all (as in this case) but were

merely one day late in serving the case on appeal. On the

last day for serving the case on appeal, petitioner's attorney

had called at the prosecuting attorney’s office to serve him

but the prosecutor was out of town; had petitioner's attor-

ney mailed the statement on that day instead of delivering

it on the next official day, the service would have been ade-

quate.

In Michel v. Louisiana, despite the fact that the petitioner

was under sentence of death in Louisiana, the Supreme

“Court refused to pass upon his constitutional claim because

of a failure to comply with state procedure. Michel, a Negro,

claimed that he had been denied due process of law because

there had been a systematic exclusion of Negroes from the

grand jury panel which indicted him. Louisiana law re-

quired that objections toa grand jury be raised before the

expiration of the third judicial day following the end of

the grand jury’s term but Michel’s motion to quash the in-

dictment had not been filed until the fifth judicial day after

the expiration of ‘the term, This procedural ground was

found adequate to prevent review of the constitutional claim °

even thoagh Michel's counsel was not appointed until the

day the grand jury's term expired and did not receive

formal noti® of appointment until three days later. It

is also significant that in Miehed it was clear that there had

been a violation of Michel's constitutional rights. Mr. Jus-

tice Black, dissenting, pointed out that in the memory of

people living in the parish there had beem only one Negro

selected to serve on a grand jury in that parish and he

happened to look like id white man. Sou b LS. at 102,

A comparison of the facts of the Daniels and Michel Gases

with those in the present case shows that the, adequate

~ oxtate ground rule does not vield to exceptional cases as the

| majority contends :

(1) In both Panels and Michel, the appellants. were

under sentence of death, while here the appellant is sub. -

ject only to imprisonment. |

(2) In both Daniels and Machel the petitioners attempted

to avail themselves of state procedures and came within

days of doing so; here the petitioner Hever sought to ap

peal and did not raise his claim in the state court. until

fourteen years after his conviction.

(3) In both) Dantels and Miche! there were extenuating

circumstances Which could have been considered as supply

ing a reason for the appellants’, failure te comply with

the state procedures.

,

o4

aw

(4) In Michel, it was, at least, as clear as it is here that —

there had been a denial ot constitutional rights.

I do not contend that state procedural grounds for deny-

ing a hearing to federal claims must always be considered

adequate to preclude federal review of that claim. Cer-

tainly, a procedural ground will not bar federal review if

the state procedure discriminates against the assertion of

federal claims, Wiliams vz Georgia, 349 UL OS. 375, 1955:

Ward v. Love County, 2538 U.S. 17, 1920; NAACP y. Ala.

bama, 357 U.S. 449, 1958, or unreasonably prevents the

assertion of federal rights, Davis v. Wechsler, 263 US

+B 1923 ; Rogers v . Alabama, 192. U.S. 226, 1904: Reece v.

Georgia, B00 UT S285, 1955; Stauk ve City of Barleu, 355

U.S. 318, 1958. However, inadequacy must be determined

according to principles established by the Supreme Court.

Since Daniels v, Allen has established that the failure to

take an appeal is a reasonable ground for a state’s refusal

to entertain constitutional claims, We should not now hold

that the failure to appeal is not a reasonable ground for

denying a hearing to such claims unless the petitioner did

not have an *‘opportunity to appeal because of lack of coun

sel, incapacity, or some interference by officials.” Daniels

ve Allen, 344 UL Scat 485. However, the petitioner here had

a hearing before the district court at which he was atforded

_ an opportunity to present facts which might have excused

his failure to appeal. After weighing the proof, the district

court fonnd that ‘tthe hearing utterly failed to reveal any

such circumstances.

The rehance of the majority on the ‘ex xeeptional cir-

cumstances” language in Darr v. Burford. 330 US. 20

ay)

(19oHg and’ brisbie ve Coffins, S42 USS. O19 61952), both

of which were concenned with the exhaustion problem

under (2204. 1s misplaced. it is interesting te note that.

the majority recokiizes that the exhaustion of state rete.

dies doctrine under 2254 is distinet from the adequate state”

ground doctrine; vet without discussion, they. timed that, if

there are exceptions to the exhatigtion doctrine, there are

like exceptions to the adequate state crounds doet rine, How

ever, In IY Opinion. a proper analyst of these doetrines

shows that fhe exception rules of the one are not applicable

to the other.

The majority. ia recogmizins that ‘ali the cited eases from -

hiv parte Royall to Hawk recognize that much cantiot be

foreseen, and that ‘speeial cireumestauces’ may justify de

parture from rules designed to regulate the usual case,"

Darr v. Burford, 333 US. at 210. shoul? also have noted

that the Supreame Court’ has always reeounized that at

had the power to hear these exhaustion cases without re

quiring resort to the state courts. Thus, the Supreme

Court said in Darr v. Burtord: .

Ex parte-Reyall, decided in 1886. held that a federal!

elistriet canned dial suriscdiction fe release before trial

a state prisoner who was held in vielation of federal

constitutional rights but it approved denial of the writ

as A matter of discretion, 330 U.S. at 205. ( Himphasi-~

added. )

Although the requirement of exhaustion of state remedies

isa matter of diseretion and ‘special crreumstances"" might

require the exercise of that discretion so as to heareghe

federal claim on che merits eventhough state procedures

06

are not exhausted, in cases in which an adequate state

procedural ground for decision has been. held to cut off

federal review, the Supreme Court has often stated that

the fact that the judgment of conviction was supported By

a procedural ground for decision deprived tt of the power

to set aside the conviction. Whitney vy. California, 24S

mde, die, 1927 (Brandeis, J. concurring); [erndon vy.

Georgia, 295 U.S. 441, H2 (1935) : Edelman v.. California,

344 U.S. 357, 1953; Irein v. Dowd, 309 U.S. 394, 412-13

(1959) (Harlan,. J., dissenting); Wolfe v. North aotgiran

M4 US. 177, 196, 1960; see Cecenta vy. cena 357 UL Sa,

WT n. 2. Although all of these cases except [rrin vy, on

involved cirect review, Mr. Justice Harlan pointed out in

Irvin that the same rule applies in habeas corpus cases :

It is clear that the Federal courts would be without

jurisdiction to »consider petitioner's constitutional.

claims on habeas corpus if the Supreme Court of. In-

diana rejected those claims because irrespective of

their possible merit, they ‘were not presented to if_in

compliance with the State’s ‘‘adequate and easily-

complied-with method of appeal."’) Brown v. Allen, -

344 U.S. 448, 485 [359 U.S. at 412-13]? °

Neither Patterson v. Alabama, 294 U.S. 600 (1935), aor

Williams v. Georgia, supra, support the proposition that

\

2 Although this, statement appears ina dissenting opment appears

that a majortty of the Court agreed on this pot. Justices Frank

furter, Clark and Whittaker concurred in Mr. Justice Harlan’-

dissent, and it would seem that Mr. Justice Stewart would agree

with this statement for he concurred with the majority “wath che

. understanding that the Court does not depart from the principles

announced in Brown v. Allen, 844 U2 8. 443° [350 US at 407)

ona. clear showing of a constitutional deprivation, the

federal courts can ignore an adequate state ground. In

Patterson, supra, the Supreme Court recognizes that even

“though the federal right was clear, the state could refuse

hear that claim ge of a- failure to comply with

state procedures, 294 U.S. at 605. The Court decided to

remand, however, because it Was not certain that the state

court: would have considered itself powerless to consider

the constitutional claim if it had been aware of the merit

of that claim. A reading of: Patterson implies that the

state on remand could have again rested its decision on

the state procedural ground and that the Supreme Court

would not the an have reviewed that decision. Since in this

case the state court was fully aware of the validity of the

constitutional claim whefi it: asserted that) Noia‘s failure

to appeal precluded review of his federal claim, see 3.N. Y.

Od, at 598-09, the reasoning of Patterson is inapplicable

here. |

Willams not only does not support the proposition that

the federal courts ¢an ignore an adequate state ground,

Init shows the reluctance of the Supreme Court to interfere

with state court proceedings. In Willams the court found...

the procedural ground of the decision inadequate heeause

the state court had discretion to hear the’ constitutional

claim even though there was a failure to comply with the

proper procedure and the state court: had consistently vX-

ereised that discretion so as to hear the merits of appeal-

in similar cases. The inadequacy of Williams, therefore,

arose from the fact: Urat—-the state court: had refused to

exereise its diseretion “to entertain a constitutional claim

’ while ‘passing upon similar issues raised in the same man-

58

ner.’’ 349 U.S. at 883; see Wolfe v. North Carélina, 364

U.S. 177, ae Note, Supreme Court Treatment of State

Procedural Grounds Relied on ‘in State Courts to Preclude

Decision of Federal Questions, 61 Colum. L. Rev. 255,

266-67 (1961). Even though the Court had jurisilietion to

hear the merits of the ease in Williams, and did, in fact,

~ find a denial of a constitutional right, out of deference

to the State courts it did not reverse the conviction, but.

‘instead remanded the case to the state court--because in

the argument before the Supreme Court the State At-

torney General conceded that there had been a. constitu-

tional violation, although he+ad insisted before.the Georgia

Supreme Court that there had been no such’ violation.

This refusal of the Court to ‘reverse a. conviction even

though it had jurisdiction to do so weil illustrates the

deference which the Court pays to state proceedings.

Thg opinion of the majority could have been written in

one sentence substantially, as follows: ‘‘In any criminal

case in a State court wherein a confes¥on Was introduced

and a conviction resulted, the defendant may, at any time

thereafter without appealing such conviction or exhausting

any other available state remedy, claim upon petition for

_a writ of habeas corpus that such confession was coerced

and, upon a finding. to that effect by a: federal judge, a

writ shall issue to the State directing the defendant's

release from custody (citing cases if there’ be any)."" If

this is to be the rule of. law, is not a reappraisal of our

criminal procedure in this field called for? If the delicate

balance of the State-Federal relationship is to be upset,

possibly. the majority’s approach is best, namely: upset it

drastically. If each case is to be decided on its own ‘‘ex-

a9

ceptional situation®’* basis, let this principle be declared

so that consideration of the scores of habeas corpus ap-

peals whieh come before this court: every vear can be

unfettered by legal principles. No longer ‘will it be neces-

sary, after due_ liberation to write “Failure to exhaust

State remedies’’ or ‘‘No federal question."* And in fair-

ness to the two distinguished appellate courts in. New.

York, would it not be better to advise them that-in any

‘ase before them involving ‘a coerced confession they are,

but. puppets whose strings may be cut at-any time by the

keen edge of the “Great Writ.’’ It may well be that there.

should be. a definite rule that no case involving an al-

logedly coerced confession should be tried in a state court

or, stated differently, that such’ a case should be tried

only before a federal judge. Whether, this should be is

for those far more learned’ in such matters than I] to de-

termine. 4 point out only that such is not the law at the:

present time—at least until the filing ‘of: the majority

opinion. iy |

I would affirm.