In an Indiana State Court, petitioner was convicted of murder
and sentenced to death. He escaped from custody and, while he was
still at large, his counsel made a timely motion for a new trial,
specifying 415 grounds of error constituting an alleged denial of
federal constitutional rights. The trial court, in denying the
motion, noted that petitioner was an escapee when the motion was
made and decided. After his return to custody, petitioner filed a
timely appeal to the State Supreme Court from the judgment of
conviction, assigning as the only error the denial of the motion
for a new trial. Under Indiana law, the appeal presented the State
Supreme Court with two issues: (1) Whether the motion for a new
trial was correctly denied because petitioner was an escapee at the
time it was made, or (2) whether it was correctly denied because
the trial did not, as petitioner alleged, deprive him of his
constitutional rights. The Indiana Supreme Court discussed both
issues in its opinion affirming the denial of the motion for a new
trial. Subsequently, petitioner applied to a Federal District Court
for a writ of habeas corpus under 28 U.S.C. § 2241. The
District Court dismissed the writ on the ground that petitioner had
not exhausted his state remedies, as required by 28 U.S.C. §
2254, and the Court of Appeals affirmed. Both Courts considered
that the judgment of the Indiana Supreme Court rested on a holding
that petitioner's motion for a new trial was properly denied
because he was an escapee at the time it was made.
Held:
1. The opinion of the Indiana Supreme Court is more reasonably
read as resting the judgment on the holding that the petitioner's
constitutional claim is without merit. In this way, the State
Supreme Court discharged its obligation to "guard, enforce, and
protect every right granted or secured by the Constitution of the
United States."
Robb v. Connolly, 111 U.
S. 624,
111 U. S. 637.
Pp.
359 U. S.
403-404.
2. The doctrine of exhaustion of state remedies, which was
codified in 28 U.S.C. § 2254, does not bar resort to federal
habeas
Page 359 U. S. 395
corpus if the petitioner has obtained a decision on his
constitutional claims from the highest court of a State, even
though, as here, that court could have based its decision on
another ground.
Brown v. Allen, 344 U.
S. 443, distinguished. Pp.
359 U. S.
404-406.
3. The question is not reached whether federal habeas corpus
would have been available to petitioner had the Indiana Supreme
Court rested its decision on the escape ground. P.
359 U. S.
406.
4. The judgment of the Court of Appeals is reversed, and the
case is remanded to that Court, which may decide the merits of
petitioner's constitutional claim or remand to the District Court
for further consideration of that claim. Pp.
359 U. S.
406-407.
251 F.2d 548, reversed.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Petitioner brought this habeas corpus proceeding in the District
Court for the Northern District of Indiana under 28 U.S.C. §
2241, [
Footnote 1] claiming
that his conviction for murder in the Circuit Court of Gibson
County, Indiana, was obtained in violation of the Fourteenth
Amendment.
Page 359 U. S. 396
The District Court dismissed the writ,
153 F.
Supp. 531, under the provision of 28 U.S.C. § 2254, that
habeas corpus "shall not be granted unless it appears that the
applicant has exhausted the remedies available in the courts of the
State. . . ." [
Footnote 2] The
Court of Appeals for the Seventh Circuit affirmed. 251 F.2d 548. We
granted certiorari, 356 U.S. 948. [
Footnote 3]
The constitutional claim arises in this way. Six murders were
committed in the vicinity of Evansville, Indiana, two in December,
1954, and four in March, 1955. The crimes, extensively covered by
news media in the locality, aroused great excitement and
indignation throughout Vanderburgh County, where Evansville is
located, and adjoining Gibson County, a rural county of
approximately 30,000 inhabitants. The petitioner was arrested on
April 8, 1955. Shortly thereafter, the Prosecutor of Vanderburgh
County and Evansville police
Page 359 U. S. 397
officials issued press releases, which were intensively
publicized, stating that the petitioner had confessed to the six
murders. The Vanderburgh County Grand Jury soon indicted the
petitioner for the murder which resulted in his conviction. This
was the murder of Whitney Wesley Kerr allegedly committed in
Vanderburgh County on December 23, 1954. Counsel appointed to
defend petitioner immediately sought a change of venue from
Vanderburgh County, which was granted, but to adjoining Gibson
County. Alleging that the widespread and inflammatory publicity had
also highly prejudiced the inhabitants of Gibson County against the
petitioner, counsel, on October 29, 1955, sought another change of
venue, from Gibson County to a county sufficiently removed from the
Evansville locality that a fair trial would not be prejudiced. The
motion was denied, apparently because the pertinent Indiana statute
allows only a single change of venue. [
Footnote 4]
The
voir dire examinations of prospective jurors began
in Gibson County on November 14, 1955. The averments as to the
prejudice by which the trial was allegedly environed find
corroboration in the fact that, from the first day of the
voir
dire, considerable difficulty was experienced in selecting
jurors who did not have fixed opinions that the petitioner was
guilty. The petitioner's
Page 359 U. S. 398
counsel therefore renewed his motion for a change of venue,
which motion was denied. He renewed the motion a second time, on
December 7, 1955, reciting in his moving papers:
"in the
voir dire examination of 355 jurors called in
this case to qualify as jurors, 233 have expressed and formed their
opinion as stated in said
voir dire that the defendant is
guilty. . . ."
Again the motion was denied. Alternatively, on each of eight
days over the four weeks required to select a jury, counsel sought
a continuance of the trial on the ground that a fair trial at that
time was not possible in the prevailing atmosphere of hostility
toward the petitioner. All of the motions for a continuance were
denied. The State Prosecutor, in a radio broadcast during the
second week of the voir dire examination, stated that "the unusual
coverage given to the case by the newspapers and radio" caused
"trouble in getting a jury of people who are not [
sic]
unbiased and unprejudiced in the case."
The petitioner's counsel exhausted all 20 of his peremptory
challenges, and, when 12 jurors were ultimately accepted by the
court, also unsuccessfully challenged all of them for alleged bias
and prejudice against the petitioner, complaining particularly that
four of the jurors, in their
voir dire examinations,
stated that they had an opinion that petitioner was guilty of the
murder charged. [
Footnote
5]
Page 359 U. S. 399
Also at the trial, the State's Prosecuting Attorney took the
stand as part of his presentation of the State's case, and, over
petitioner's objection, was allowed to testify that the petitioner,
five days after his arrest, on April 13, 1955, had orally confessed
the murder of Kerr to him. The Prosecuting Attorney was also
permitted in summation, again over petitioner's objection, to vouch
his own testimony by commenting to the jury, "I testified myself
what was told me."
The opinions of the Indiana Supreme Court and the District Court
held the constitutional claim to be without merit.
Irvin v.
State, 236 Ind. 384, 392-394,
139 N.E.2d
898, 901-902;
Irvin v. Dowd, 153 F.
Supp. 531, 535-539. On the other hand, Chief Judge Duffy of the
Court of Appeals, concurring in the affirmance of the dismissal by
the District Court, reached a contrary conclusion:
"Irvin was not accorded due process of law in the trial which
resulted in his conviction and death sentence. In my judgment, he
did not receive a fair trial, because some of the jury had
preconceived opinions as to defendant's guilt, and also because of
the conduct of the prosecuting attorney."
251 F.2d 548, 554.
The Gibson County jury returned its verdict on December 20,
1955, and assessed the death penalty. Indiana law allows 30 days
from the date of the verdict within which to file a motion for a
new trial in the trial court. Burns' Ind.Stat.Ann., 1956
Replacement Vol.,
Page 359 U. S. 400
§ 9-1903. The petitioner's counsel, on January 19, 1956,
the 30th day, filed such a motion specifying 415 grounds of error
constituting the alleged denial of constitutional rights. However,
the petitioner had escaped from custody the night before, January
18, 1956, and, on January 23, 1956, the trial court overruled the
motion, noting that the petitioner had been an escapee when the
motion was filed and was still at large. The petitioner was
captured in California about three weeks later, and, on February
17, 1956, was confined in the Indiana State Prison.
Under Indiana law the denial of the new trial was not
appealable, but was reviewable by the Indiana Supreme Court only if
assigned as error in the event of an appeal from the judgment of
conviction. The State Supreme Court has held:
"The statute [providing for appeal] does not authorize an appeal
from every ruling which a court may make against a defendant in a
criminal action, but only authorizes an appeal 'from any judgment .
. . against him,' and provides for review, upon such appeal, of
decisions and rulings of the court made in the progress of the
case. This court has construed the statute as authorizing an appeal
only from a final judgment in a criminal action. The action of a
trial court in overruling a motion for a new trial may be reviewed
upon an appeal from a judgment of conviction rendered against a
defendant, but the overruling of a motion for a new trial must be
assigned as error. In such case, the appeal is from the judgment of
conviction, and not from the ruling upon the motion for a new
trial. The overruling of a motion for a new trial does not
constitute a judgment, and an appeal does not lie from the court's
action in overruling such motion."
Selke v. State, 211 Ind. 232, 234, 6 N.E.2d 50,
571.
Page 359 U. S. 401
The judgment of conviction imposing the death sentence was
entered January 9, 1956. The petitioner was entitled to appeal, as
a matter of right, from that judgment, provided, in compliance with
a State Supreme Court rule, [
Footnote 6] the appeal was perfected by filing with the
Clerk of the Supreme Court a transcript of the trial record and an
assignment of errors within 90 days of the judgment. The Supreme
Court may, in its discretion, extend the time on proper motion made
within the 90-day period. The questions before the Supreme Court
are those raised by the appellant in his assignment of errors.
Page 359 U. S. 402
On March 22, 1956, the petitioner applied for an extension of
time within which to file the trial transcript and his assignment
of errors. This was after he was returned to the custody of the
State and well within 90 days from January 9, 1956, the date of the
judgment of conviction. We were advised on oral argument that the
State objected to this motion "because he [petitioner] had
escaped," and a hearing was held on the objection by the State
Supreme Court. Petitioner's motion was granted, and the time was
extended to June 1, 1956. The assignment of errors, timely filed
with the trial transcript of some 5,000 pages, assigned only one
ground of error -- that "the [trial] Court erred in overruling
appellant's motion for new trial." The petitioner's brief of over
700 pages opened by advising the State Supreme Court that,
"Under this single assignment of error, the appellant has
combined all errors alleged to have been committed prior to the
filing of the motion for a new trial."
In short, the form of the assignment was a shorthand way of
specifying the 415 grounds stated in the motion for new trial as
constituting the claimed denial of constitutional rights. Indeed,
the only arguments made in the lengthy brief related to the
constitutional claim. The State's brief devoted some 70 pages to
answering these contentions, and, in 7 additional pages, argued
that, in any event, the Circuit Court had not erred in denying the
motion for a new trial, because the petitioner was an escapee at
the time it was filed and decided.
The case before the Indiana Supreme Court was thus an appeal
perfected in full compliance with Indiana procedure; therefore, the
court was required under Indiana law to pass on the merits of the
petitioner's assignment of error. That the assignment of error was
sufficient to present the constitutional claim is evident from the
court's acceptance of it as the basis for considering the 415
grounds of alleged error constituting that claim.
Page 359 U. S. 403
However, under the single assignment of error, the judgment of
conviction could be affirmed by the State Supreme Court if, for any
reason finding support in the record, the motion for a new trial
was properly overruled. The State argued that the overruling should
be upheld on either of two grounds: one, because the petitioner was
an escapee at the time the motion was made and decided, and two,
because the trial itself was fair, and without error. Petitioner's
appeal clearly raised both of these issues, and the Indiana Supreme
Court discussed both in its opinion.
We think that the District Court and Court of Appeals erred in
concluding that the State Supreme Court decision rested on the
ground that the petitioner was an escapee when his motion for a new
trial was made and decided. On the contrary, the opinion, to us, is
more reasonably to be read as resting the judgment on the holding
that the petitioner's constitutional claim is without merit. As we
have shown, under the state procedure, the State Supreme Court
could have rested its decision solely on the federal constitutional
claim. [
Footnote 7] This, we
think, is what the Indiana high court did. The opinion discusses
both issues. The discussion of the escape issue concludes with the
statement, "No error could have been committed in overruling the
motion for a new trial under the circumstances." 236 Ind. at 392,
139 N.E.2d at 902. But the opinion proceeds:
"Our decision on the point under examination makes it
unnecessary for us to consider the other contentions of the
appellant; however, because of the finality of the sentence in the
case, we have reviewed the evidence to satisfy ourselves that there
is no miscarriage of justice in this case."
236 Ind. at 392-393, 139 N.E.2d at 902. The conclusion reached
after discussion of the merits is:
"It does not appear from the record and argument had,
Page 359 U. S. 404
that the appellant was denied due process of law under the
Fourteenth Amendment. . . ."
236 Ind. at 394, 139 N.E.2d at 902. The court's statement that
its conclusion on the escape point made it "unnecessary" to
consider the constitutional claim was not a holding that the
judgment was rested on that ground. Rather, the court proceeded to
determine the merits "because of the finality of the sentence" and
"to satisfy ourselves that there is no miscarriage of justice." In
this way, in our view, the State Supreme Court discharged the
obligation which rests upon
"the state courts, equally with the courts of the Union, . . .
to guard, enforce, and protect every right granted or secured by
the constitution of the United States. . . ."
Robb v. Connolly, 111 U. S. 624,
111 U. S. 637.
We thus believe that the opinion is to be read as rested upon the
State Supreme Court's considered conclusion that the conviction
resulting in the death sentence was not obtained in disregard of
the protections secured to the petitioner by the Constitution of
the United States.
In this posture, 28 U.S.C. § 2254 does not bar the
petitioner's resort to federal habeas corpus. The doctrine of
exhaustion of state remedies in federal habeas corpus was
judicially fashioned after the Congress, by the Act of February 5,
1867, greatly expanded the habeas corpus jurisdiction of the
federal courts to embrace "all cases where any person may be
restrained of his . . . liberty in violation of the constitution,
or of any treaty or law of the United States. . . ." 14 Stat. 385.
Although the statute has been reenacted with minor changes at
various times, the sweep of the jurisdiction granted by this broad
phrasing has remained unchanged. [
Footnote 8]
Since there inhered in this expanded grant of power, beside the
added burden on the federal courts, the potentiality
Page 359 U. S. 405
of conflict between federal and state courts, this Court,
starting with the decision in
Ex parte Royall,
117 U. S. 241,
developed the doctrine of exhaustion of state remedies, a
"rule . . . that the . . . courts of the United States, while
they have power to grant writs of habeas corpus for the purpose of
inquiring into the cause of restraint of liberty of any person in
custody under the authority of a State in violation of the
Constitution, . . . yet, except in cases of peculiar urgency, ought
not to exercise that jurisdiction by a discharge of the person in
advance of a final determination of his case in the courts of the
State. . . ."
Tinsley v. Anderson, 171 U. S. 101,
171 U. S.
104-105. The principles are now reasonably clear.
"Ordinarily, an application for habeas corpus by one detained
under a state court judgment of conviction for crime will be
entertained by a federal court only after all state remedies
available, including all appellate remedies in the state courts and
in this Court by appeal or writ of certiorari, have been
exhausted."
Ex parte Hawk, 321 U. S. 114,
321 U. S.
116-117. The principles of the doctrine have been
embodied in 28 U.S.C. § 2254, which was enacted by Congress to
codify the existing habeas corpus practice.
See Darr v.
Burford, 339 U. S. 200,
339 U. S.
210-214;
Young v. Ragen, 337 U.
S. 235,
337 U. S. 238,
note 1;
Brown v. Allen, 344 U. S. 443,
344 U. S.
447-450. As is stated in the Reviser's Note: "This new
section is declaratory of existing law as affirmed by the Supreme
Court." [
Footnote 9]
The petitioner in this case plainly invoked "all state remedies
available," and obtained "a final determination" of his
constitutional claim from the Indiana Supreme Court. Certainly
Brown v. Allen, 344 U. S. 443,
relied
Page 359 U. S. 406
upon by the Court of Appeals, does not bear on his situation. In
that case, the two petitioners in
Daniels v. Allen had 60
days in which to make and serve a statement of the case on appeal
from a conviction in the state trial court. Counsel failed to serve
this statement until 61 days had expired, and the trial judge
struck the appeal as out of time. The pertinent North Carolina rule
provided that the time limitation was "mandatory," and precluded an
appeal to the State Supreme Court. The State Supreme Court
dismissed petitioners' attempted appeal on the ground that no
appeal had been filed. This Court held that, under the doctrine of
exhaustion of state remedies, habeas corpus ought not be granted,
since petitioners had sought too late to invoke North Carolina's
"adequate and easily complied-with method of appeal." 344 U.S. at
344 U. S. 485.
In contrast, the petitioner's appeal from his judgment of
conviction to the Indiana Supreme Court raising the constitutional
claim was timely and was accepted by that court as fully complying
with all pertinent procedural requirements. Furthermore, the State
Supreme Court did reach and decide petitioner's federal
constitutional claim.
We therefore hold that the case is governed by the principle
that the doctrine of exhaustion of state remedies embodied in 28
U.S.C. § 2254 does not bar resort to federal habeas corpus if
the petitioner has obtained a decision on his constitutional claims
from the highest court of the State, even though, as here, that
court could have based its decision on another ground.
Wade v.
Mayo, 334 U. S. 672. In
this view, we do not reach the question whether federal habeas
corpus would have been available to the petitioner had the Indiana
Supreme Court rested its decision on the escape ground.
The judgment of the Court of Appeals is reversed and the case is
remanded to that court. The Court of Appeals
Page 359 U. S. 407
may decide the merits of petitioner's constitutional claim, or
remand to the District Court for further consideration of that
claim, as the Court of Appeals may determine.
It is so ordered.
MR. JUSTICE STEWART concurs in the judgment and the opinion of
the Court, with the understanding that the Court does not here
depart from the principles announced in
Brown v. Allen,
344 U. S. 443.
[
Footnote 1]
Section 2241 provides in pertinent part:
"(a) Writs of habeas corpus may be granted by the . . . district
courts . . . within their respective jurisdictions . . ."
"
* * * *"
"(c) The writ of habeas corpus shall not be extended to a
prisoner unless . . ."
"
* * * *"
"(3) He is in custody in violation of the Constitution or laws
or treaties of the United States. . . ."
[
Footnote 2]
The full text of § 2254 is as follows:
"An application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted unless it appears that the applicant has exhausted
the remedies available in the courts of the State, or that there is
either an absence of available State corrective process or the
existence of circumstances rendering such process ineffective to
protect the rights of the prisoner."
"An applicant shall not be deemed 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 procedure, the question presented."
[
Footnote 3]
The case was here previously on Irvin's petition seeking direct
review on certiorari to the Indiana Supreme Court from that court's
decision in
Irvin v. State, 236 Ind. 384,
139 N.E.2d
898. Certiorari was denied "without prejudice to filing for
federal habeas corpus after exhausting state remedies." 353 U.S.
948. The Indiana Assistant Attorney General, on the oral argument
here, advised that there was not then, nor is there now, any state
procedure available for the petitioner to obtain a determination of
his constitutional claim.
[
Footnote 4]
Burns' Ind.Stat.Ann., 1956 Replacement Vol., § 9-1305,
provides:
"When affidavits for a change of venue are founded upon
excitement or prejudice in the county against the defendant, the
court, in all cases not punishable by death, may, in its
discretion, and in all cases punishable by death, shall grant a
change of venue to the most convenient county. The clerk must
thereupon immediately make a transcript of the proceedings and
orders of court, and, having sealed up the same with the original
papers, shall deliver them to the sheriff, who must, without delay,
deposit them in the clerk's office of the proper county, and make
his return accordingly: Provided, however, That only one (1) change
of venue from the judge and only one (1) change from the county
shall be granted."
[
Footnote 5]
The trial judge qualified the jurors in question under the
authority of Burns' Ind.Stat.Ann., 1956 Replacement Vol., §
9-1504, which provides:
"The following shall be good causes for challenge to any person
called as a juror in any criminal trial:"
"
* * * *"
"Second. That he has formed or expressed an opinion as to the
guilt or innocence of the defendant. But if a person called as a
juror states that he has formed or expressed an opinion as to the
guilt or innocence of the defendant, the court or the parties shall
thereupon proceed to examine such juror on oath as to the ground of
such opinion; and if it appears to have been founded upon reading
newspaper statements, communications, comments or reports, or upon
rumors or hearsay, and not upon conversation with witnesses of the
transaction, or reading reports of their testimony, or hearing them
testify, and the juror states on oath that he feels able,
notwithstanding such opinion, to render an impartial verdict upon
the law and evidence, the court, if satisfied that he is impartial
and will render such verdict, may, in its discretion, admit him as
competent to serve in such case."
[
Footnote 6]
Rule 2-2 of the Supreme Court of Indiana, Burns' Ind.Stat.Ann.,
1946 Replacement Vol. 2, pt. I, p. 8, provides:
"Time for appeal or review. -- In all appeals and reviews, the
assignment of errors and transcript of the record must be filed in
the office of the clerk of the Supreme Court within 90 days from
the date of the judgment or the ruling on the motion for a new
trial, unless the statute under which the appeal or review is taken
fixes a shorter time, in which latter event the statute shall
control. If, within the time for filing the assignment of errors
and transcript, as above provided, it is made to appear to the
court to which an appeal or review is sought, notice having been
given to the adverse parties, that, notwithstanding due diligence
on the part of the parties seeking an appeal or review, it has been
and will be impossible to procure a bill of exceptions or
transcript to permit the filing of the transcript within the time
allowed, the court to which the appeal or review is sought may, in
its discretion, grant a reasonable extension of time within which
to file such transcript and assignment of errors. When the
appellant is under legal disability at the time the judgment is
rendered, he may file the transcript and assignment of errors
within 90 days after the removal of the disability."
The statutory provision for appeal is Burns' Ind.Stat.Ann., 1956
Replacement Vol., § 9-2301, which provides:
"Appeal by defendant -- Decisions and orders reviewed. -- An
appeal to the Supreme Court . . . may be taken by the defendant as
a matter of right, from any judgment in a criminal action against
him, in the manner and in the cases prescribed herein, and, upon
the appeal, any decision of the court or intermediate order made in
the progress of the case may be reviewed."
[
Footnote 7]
This conclusion was also expressed on the oral argument in this
Court by the State's Assistant Attorney General.
[
Footnote 8]
The substance of the original Act of 1867 is now found in 28
U.S.C. § 2241,
see note 1 supra.
[
Footnote 9]
For the legislative history,
see H.R.Rep. No. 2646,
79th Cong., 2d Sess., p. A172; H.R. 3214, 80th Cong., 1st Sess.;
H.R.Rep. No. 308, 80th Cong., 1st Sess., p. A180; S.Rep. No. 1559,
80th Cong., 2d Sess., pp. 9-10.
MR. JUSTICE FRANKFURTER, dissenting.
The problem represented by this case is as old as the Union, and
will persist as long as our society remains a constitutional
federalism. It concerns 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
Page 359 U. S. 408
review in this Court or reaches us by way of the limited scope
of habeas corpus jurisdiction originating in a District Court.
(Judicial power is not so restrictively distributed in other
federalisms comparable to ours. Neither the Canadian Supreme Court
nor the Australian High Court is restricted to reviewing Dominion
and Commonwealth issues respectively. The former reviews decisions
of provincial courts turning exclusively on provincial law, and the
latter may review state decisions resting exclusively on state
law.) To such an extent, is it beyond our power to review state
adjudications turning on state law that, even in the high tide of
nationalism following the Civil War, this Court felt compelled to
restrict itself to review of federal questions, in cases coming
from state courts, by limiting broadly phrased legislation that
seemingly gave this Court power to review all questions, state and
federal, in cases jurisdictionally before it. It refused to impute
to Congress such a "radical and hazardous change of a policy vital
in its essential nature to the independence of the State courts. .
. ."
Murdock v.
Memphis, 20 Wall. 590,
87 U. S. 630.
This decision has not unjustifiably been called one of "the twin
pillars" (the other is
Martin v. Hunter's
Lessee, 1 Wheat. 304) on which have been built "the
main lines of demarcation between the authority of the state legal
systems and that of the federal system." Hart, The Relations
Between State and Federal Law, 54 Col.L.Rev. 489, 503-504.
Something that thus goes to the very structure of our federal
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 discretion to see justice
done. Nor is it one of those "technical" matters that laymen, with
more confidence than understanding of our constitutional system, so
often disdain.
Page 359 U. S. 409
In view of so vital a limitation on our jurisdiction, this Court
has, until relatively recently, been very strict on insisting on an
affirmative showing on the record, when review is here sought, that
it clearly appear that the judgment complained of rested on the
construction of federal law and was not supportable on a rule of
local law beyond our power to question. Particularly in cases where
life or liberty is at stake, the Court has relaxed this insistence
to the extent of giving state courts an opportunity to clarify a
decision that could fairly be said to be obscure or ambiguous in
establishing that it rested or could rest on an interpretation of
state law. No doubt this procedure makes for delay in ultimate
decision. But it ensures that there is no denial of the right to
resort to this Court for the vindication of a federal right when a
state court's adjudication leaves fair ground for doubt whether a
federal right controlled the issue. Experience shows that this
procedure for clarification at times establishes that it was, in
fact, federal law on which the state decision rested, while, in
other instances, the state court removed all doubt that state law
supported its decision, and there was an end of the matter.
Compare Whitney v. California, 274 U.
S. 357,
and Herb v. Pitcairn, 324 U.
S. 117,
325 U. S. 325 U.S.
77,
with State Tax Commission of Utah v. Van Cott,
306 U. S. 511,
and Van Cott v. State Tax Commission, 98 Utah 264;
Minnesota v. National Tea Co., 309 U.
S. 551,
and National Tea Co. v. State, 208
Minn. 607, 294 N.W. 230;
Williams v. Georgia, 349 U.
S. 375,
and Williams v. State, 211 Ga. 763,
88 S.E.2d
376.
Even the most benign or latitudinarian attitude in reading state
court opinions precludes today's decision. It is not questioned
that the Indiana Supreme Court discussed two issues, one
indisputably a rule of local law and the other a claim under the
Fourteenth Amendment. That court discussed the claim under the
Fourteenth Amendment rather summarily, after it had dealt
Page 359 U. S. 410
extensively with the problem of local law. If the Indiana
court's opinion had stopped with its lengthy discussion of the
local law, and had not gone on to consider the federal issue,
prefacing its consideration with the introductory sentence that
"[o]ur decision on the point under examination makes it
unnecessary for us to consider the other contentions of the
appellant; however, because of the finality of the sentence in the
case we have reviewed the evidence to satisfy ourselves that there
is no miscarriage of justice in this case. . . ."
(
Irvin v. State, 236 Ind. 384, 392-393,
139 N.E.2d
898, 902), it is inconceivable that, on the proceeding before
us, we would entertain jurisdiction. What this Court is therefore
saying, in effect, is that it interprets the discussion of the
Fourteenth Amendment problem which follows the elaborate and
potentially conclusive discussion of the state issue not as resting
the case on two grounds, state and federal, but as a total
abandonment of the state ground, a legal erasing of the seven-page
discussion of state law. Concededly, if a state court rests a
decision on both an adequate state ground and a federal ground,
this Court is without jurisdiction to review the superfluous
federal ground. For, while state courts are subject to the
Supremacy Clause of the United States Constitution (Art. VI, cl.
2), they are so subject only if that Clause becomes operative, and
they need not pass on a federal issue if a relevant rule of state
law can dispose of the litigation.
It may be that it is the unwritten practice of the Indiana
Supreme Court to have an "unnecessary" consideration of a federal
issue wipe out or displace a prior full discussion of a controlling
state ground. Maybe so. But it is surely not a self-evident
proposition that discussion of a federal claim constitutes
abandonment of a prior disposition of a case on a relevant and
conclusive state ground. The frequency with which state court
opinions indulge in the superfluity of dealing with a federal
issue
Page 359 U. S. 411
after resting a case on a state ground affords abundant proof
that we cannot take judicial notice of an inference that a federal
question discussion following a state ground disposition spells
abandonment of the latter. Perhaps, if counsel had documented such
an Indiana practice, had supplied us with a basis for drawing that
conclusion regarding the appropriate way of reading Indiana
opinions, this Court itself would be entitled to find that such is
the way in which Indiana decisions must be read. But we cannot
extemporize the existence of such an Indiana practice as a basis
for our jurisdiction. Restricted, as we are restricted, to the text
of what the Supreme Court of Indiana wrote in 236 Ind. 384,
139 N.E.2d
898, in ascertaining what it is that the Indiana Supreme Court
meant to do when it first enlarged upon a controlling state ground
and then,
ex gratia, dealt with an "unnecessary" federal
ground, we are not free to pluck from the air an undocumented state
practice on the strength of which we are to ignore the bulk of the
state court's opinion and treat it as though it had not been
written or its significance had been discredited by the Indiana
Supreme Court.
In the most compassionate mood, all we are entitled to do in a
case like this, where life is at stake, is to afford an opportunity
for the Indiana Supreme Court to tell us whether, in fact, it
abandoned its state ground and rested its decision solely on the
"unnecessary" federal ground. Thus only could this Court acquire
jurisdiction over the federal question. Such a remission to the
Indiana Supreme Court, by an appropriate procedure, for a
clarification of its intention in writing this double-barreled
opinion would be in full accord with the series of cases in which
the state court was given opportunity to clarify its purpose. To
assume, as the Court does, that the Indiana Supreme Court threw
into the discard an elaborately considered local law rule is, I
most respectfully submit, to assume a jurisdiction that we do not
have. This assumption of
Page 359 U. S. 412
jurisdiction cannot help but call to mind the admonition of
Benjamin R. Curtis, one of the notable members in the Court's
history, that "questions of jurisdiction were questions of power as
between the United States and the several States." 2 Cliff. 614
(1st Cir.).
With due regard to the limits of our jurisdiction, there is only
one other mode of reading the opinion of the Indiana Supreme Court,
one other mode, that is, by which the meaning of its opinion is to
be decided by that court, and not this. That is the mode which my
brother HARLAN has explicated, and it is entirely consistent with
the governing considerations which I have tried to set forth for me
also to join, as I do join, his dissenting opinion.
* The formulation by Mr. Chief Justice Fuller, for the Court, of
this jurisdictional
sine qua non in
California Powder
Works Co. v. Davis, 151 U. S. 389,
393, represents the undeviating practice of the Court until
today:
"It is axiomatic that, in order to give this court jurisdiction
on writ of error to the highest court of a state in which a
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 been given without deciding it. And where the decision
complained of rests on an independent ground, not involving a
federal question, and broad enough to maintain the judgment, the
writ of error will be dismissed by this court without considering
any federal question that may also have been presented."
MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER, MR. JUSTICE
CLARK, and MR. JUSTICE WHITTAKER join, dissenting.
Although I agree that federal consideration of petitioner's
constitutional claims is not foreclosed by the decision of the
Supreme Court of Indiana, I think that the Court's disposition of
the matter, which contemplates the overturning of petitioner's
conviction without the necessity of further proceedings in the
state courts if his constitutional contentions are ultimately
federally sustained, rests upon an impermissible interpretation of
the opinion of the State Supreme Court (236 Ind. 384,
139 N.E.2d
898), and that a different procedural course is required if
state and federal concerns in this situation are to be kept in
proper balance.
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 Indiana rejected those claims
because, irrespective of their possible merit, they were not
presented to it in compliance with the State's "adequate and easily
complied-with
Page 359 U. S. 413
method of appeal."
Brown v. Allen, 344 U.
S. 443, 344 U. S. 485.
The first question that concerns us, therefore, is whether the
state court's judgment affirming the conviction rests independently
on such a state ground.
At the outset, we must keep in mind several aspects of Indiana
criminal procedure, and the manner in which petitioner's attorneys
presented his appeal to the Indiana Supreme Court, all as noted in
this Court's opinion. The procedural aspects are (1) that no appeal
lies from an order denying a new trial as such, that kind of an
order being reviewable only in connection with an appeal from the
final judgment in the case; (2) an escapee, such as this petitioner
was, has no standing to make a motion for a new trial, at least if
he is at large throughout the period available for the making of
such a motion, 236 Ind. at 386-392, 139 N.E.2d at 898-901; and (3)
an appellant must perfect his appeal by filing assignments of error
and a transcript of the record. In the taking of petitioner's
appeal from the judgment of conviction, the only assignment of
error filed related to the trial court's denial of the motion for a
new trial. While that assignment was supported by a detailed
specification of petitioner's constitutional claims, none of such
claims was independently filed as an assignment of error.
Had the State Supreme Court declined, without more, to reach
petitioner's constitutional contentions because (1) his motion for
a new trial had been forfeited by reason of escape, and (2) such
claims had not independently been assigned as error, the federal
courts would not, as has been said, be entitled to consider them.
The difficulty here is that the state court did not stop at this
juncture, but, after pointing out that petitioner had assigned as
error only the denial of his motion for a new trial and holding
that such denial was not error because of petitioner's escape, went
on to consider and find without merit petitioner's constitutional
claims.
Page 359 U. S. 414
This Court infers from the fact that the Indiana court
considered petitioner's constitutional contentions that its
affirmance of his conviction rested entirely on the denial of those
claims. It reads the state court's opinion as saying that, although
that court could, under state law, properly rest its affirmance of
the conviction on petitioner's failure to assign as error anything
but the denial of his motion for a new trial, which, as we have
seen, was held to have been properly denied under the State's
"escapee" rule, it would not do so, but would treat petitioner's
constitutional claims as if they had themselves been presented as
assignments of error, rather than only as grounds supporting the
error assigned to the trial court's order denying a new trial. I
think this reading of the state court's opinion defies its plain
language.
The state court devotes no less than seven pages of its
nine-page opinion to an exhaustive discussion of the rule of state
law which requires denial of a new trial motion made by an escapee
still at large. At the close of this discussion, it says:
"The action upon which the appellant predicates error in this
appeal is based solely upon the overruling of a motion for a new
trial. There is no other error claimed. Since appellant had no
standing in court at the time he filed a motion for a new trial,
the situation is the same as if no motion for a new trial had been
filed, or he had voluntarily permitted the time to expire for such
filing. His letter reveals he was aware of this right, and had
talked with his attorneys about a new trial and an appeal."
"No error could have been committed in overruling the motion for
a new trial under the circumstances."
"Our decision on the point under examination makes it
unnecessary for us to consider the other
Page 359 U. S. 415
contentions of the appellant; however, because of the finality
of the sentence in the case, we have reviewed the evidence to
satisfy ourselves that there is no miscarriage of justice in this
case. . . ."
236 Ind. at 392-393, 139 N.E.2d at 901. The opinion then reviews
the petitioner's constitutional contentions, and concludes with the
statement:
"It does not appear from the record and argument had that the
appellant was denied due process of law under the Fourteenth
Amendment, or due course of law under the Bill of Rights, Const.
art. 1, § 12, or that there was any miscarriage of justice
when he was convicted and given the death penalty."
Id., 236 Ind. at 394, 139 N.E.2d at 902.
This Court's reading of the Indiana opinion makes the exhaustive
discussion in that opinion of the status of an escapee under
Indiana law entirely unnecessary and meaningless. While I agree
with the Court that the Indiana Supreme Court reached a
"considered conclusion that the conviction resulting in the
death sentence was not obtained in disregard of the protections
secured to the petitioner by the Constitution of the United
States,"
it is fully apparent that the state court ultimately rested its
judgment of affirmance squarely on the ground that the petitioner's
sole assignment of error, the denial of his motion for a new trial,
was without merit because he was an escapee when that motion was
made, and when it was denied. The fact that the Indiana court also
reached a conclusion that petitioner's claims of constitutional
deprivation were not made out does not entitle us to ignore the
fact that it was on a point of state procedure that it ultimately
rested.
Nevertheless, I do not think that, in the circumstances of this
case, the State's contention that the federal courts
Page 359 U. S. 416
lack jurisdiction to deal with petitioner's constitutional
points can be accepted. The State has conceded that its Supreme
Court was empowered, in its discretion, to disregard the procedural
defects in petitioner's appeal. That being so, the state court's
constitutional discussion takes on, for me, a vital significance in
connection with its procedural holding under state law, namely,
that affirmance of petitioner's conviction was rested on this state
ground only
after the Indiana court, displaying a
meticulous concern that state procedural requirements should not be
allowed to work a "miscarriage of justice," particularly in view of
"the finality of the sentence," had satisfied itself that
petitioner's constitutional contentions were untenable. Such a
reading of the state court's opinion is required to give meaning to
its constitutional discussion, for, if petitioner's procedural
failures inexorably prevented the state appellate court from
reaching his constitutional claims, their discussion in its opinion
would appear to have been wholly pointless. At the same time, this
view of the opinion deprives Indiana's procedural holding of
vitality as a bar to consideration of petitioner's constitutional
claims by the federal courts on habeas corpus, for the decision as
to those claims was inextricably a part of that holding. I
therefore think that the two courts below should have dealt with
the merits of petitioner's constitutional points.
However, even were the federal courts ultimately to hold that
petitioner was denied due process, it would not be within their
province thereupon to order his release. At that point, it would
unmistakably be the prerogative of the Indiana Supreme Court to
decide whether, on different postulates of federal constitutional
law, it would nevertheless hold that, under Indiana law, petitioner
would still be barred from being heard because of his failure to
comply with the State's procedural rules. For, just as it
Page 359 U. S. 417
is the federal courts' responsibility and duty finally to decide
the federal questions presented in this case, it belongs to the
Indiana Supreme Court finally to decide the state questions
presented in the light of federal decision as to the commands of
the Fourteenth Amendment. Hence, if petitioner ultimately prevails
on his constitutional claims, further proceedings in the state
courts will be unavoidable.
In this state of affairs, I think our proper course should be to
proceed ourselves to a decision of the constitutional issues,
rather than remand the case to the Court of Appeals. If the
judgment of the Indiana Supreme Court is potentially going to be
called into question because of a federal court's conclusion that
it is based in part on erroneous constitutional postulates, I
believe that Indiana is entitled to have that conclusion
authoritatively pronounced by this Court. Moreover, the District
Court, and one judge of the Court of Appeals, have already given
clear (and conflicting) statements of their views as to the merits
of such issues. The questions have been exhaustively briefed and
fully argued before us. And this course would avoid further
protracted delay.
Were we to conclude that the Indiana Supreme Court was correct
in its premise that petitioner's constitutional points are without
merit, the judgment of the Court of Appeals dismissing the writ of
habeas corpus should, of course, be affirmed. If, on the other
hand, we should decide that petitioner was in fact deprived of due
process at trial, I would hold the case and give petitioner a
reasonable opportunity to seek, through such avenues as may be open
to him, a determination by the Indiana Supreme Court as to whether,
in light of such a decision, it would nevertheless hold that
petitioner's failure to comply with the State's procedural rules
required affirmance of his conviction.
Cf. Patterson v.
Alabama, 294 U. S. 600;
Page 359 U. S. 418
Williams v. Georgia, 349 U. S. 375.
Should no such avenues be open to petitioner in Indiana, it would
then be time enough to decide what final disposition should be made
of this case.
For these reasons, I concur in the view that federal
consideration of petitioner's constitutional claims is not
precluded, and in all other respects dissent from the Court's
opinion.