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SUPREME COURT OF THE UNITED STATES
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No. 91-1030
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PAMELA WITHROW, PETITIONER v. ROBERT ____
ALLEN WILLIAMS, JR.
ON WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
[April 21, 1993]
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in part and
dissenting in part.
The issue in this case - whether the extraordinary remedy of federal habeas
corpus should routinely be available for claimed violations of Miranda rights - _______
involves not jurisdiction to issue the writ, but the equity of doing so. In my ____________ ______
view, both the Court and JUSTICE O'CONNOR disregard the most powerful equitable
consideration: that Williams has already had full and fair opportunity to
litigate this claim. He had the opportunity to raise it in the Michigan trial
court; he did so and lost. He had the opportunity to seek review of the trial
court's judgment in the Michigan Court of Appeals; he did so and lost. Finally,
he had the opportunity to seek discretionary review of that Court of Appeals
judgment in both the Michigan Supreme Court and this Court; he did so and review
was denied. The question at this stage is whether, given all that, a federal
habeas court should now reopen the issue and adjudicate the Miranda claim anew. _______
The answer seems to me obvious: it should not. That would be the course
followed by a federal habeas court reviewing a federal conviction; it mocks our _______
federal system to accord state convictions less respect. 91-1030 - CONCUR/DISSENT
2 WITHROW v. WILLIAMS ____
I
By statute, a federal habeas court has jurisdiction over any claim that a
prisoner is "in custody in violation of the Constitution or laws" of the United
States. See 28 U. S. C. SS2241(c)(3), 2254(a), 2255. While that jurisdiction
does require a claim of legal error in the original proceedings, compare Herrera _______
v. Collins, 506 U. S. ___ (1993), it is otherwise sweeping in its breadth. As _______
early as 1868, this Court described it in these terms:
"This legislation is of the most comprehensive character. It brings within
the habeas corpus jurisdiction of every court and of every judge every ______ ______
possible case of privation of liberty contrary to the National Constitution,
treaties, or laws. It is impossible to widen this jurisdiction." Ex parte ________
McCardle, 6 Wall. 318, 325-326 (1868). ________
Our later case law has confirmed that assessment. Habeas jurisdiction extends,
we have held, to federal claims for which an opportunity for full and fair
litigation has already been provided in state or federal court, see Brown v. _____
Allen, 344 U. S. 443, 458-459 (1953); Kaufman v. United States, 394 U. S. 217,_____ _______ _____________
223-224 (1969); to procedurally defaulted federal claims, including those over
which this Court would have no jurisdiction on direct review, see Fay v. Noia, ___ ____
372 U. S. 391, 426, 428-429 (1963); Kaufman, supra, at 223; Wainwright v. Sykes, _______ _____ __________ _____
433 U. S. 72, 90-91 (1977); Coleman v. Thompson, 501 U. S. ___, ___ (1991) (slip _______ ________
op., at 24-25); and to federal claims of a state criminal defendant awaiting
trial, see Ex parte Royall, 117 U. S. 241, 251 (1886). _______________
But with great power comes great responsibility. Habeas jurisdiction is
tempered by the restraints that accompany the exercise of equitable discretion.
This is evident from the text of the federal habeas statute, which provides that
writs of habeas corpus "may be granted" - not that they shall be granted - and ___ _____
enjoins the 91-1030 - CONCUR/DISSENT
WITHROW v. WILLIAMS 3 ____
court to "dispose of the matter as law and justice require." 28 U. S. C. ___ _______
SS2241(a), 2243 (emphases added). That acknowledgment of discretion is merely
the continuation of a long historic tradition. In English law, habeas corpus
was one of the so-called "prerogative" writs, which included the writs of
mandamus, certiorari, and prohibition. Duker, The English Origins of the Writ
of Habeas Corpus: A Peculiar Path to Fame, 53 N. Y. U. L. Rev. 983, 984 n. 2
(1978); 3 W. Blackstone, Commentaries 132 (1768). "[A]s in the case of all
other prerogative writs," habeas would not issue "as of mere course," but rather
required a showing "why the extraordinary power of the crown is called in to the
party's assistance." Ibid. And even where the writ was issued to compel _____
production of the prisoner in court, the standard applied to determine whether
relief would be accorded was equitable: the court was to "determine whether the
case of [the prisoner's] commitment be just, and thereupon do as to justice
shall appertain." 1 id., at 131. ___
This Court has frequently rested its habeas decisions on equitable principles.
In one of the earliest federal habeas cases, Ex parte Watkins, 3 Pet. 193, 201 ________________
(1830), Chief Justice Marshall wrote: "No doubt exists respecting the power [of
the Court to issue the writ]; the question is, whether this be a case in which
it ought to be exercised." And in Ex parte Royall, the Court, while affirming __ _____ ______
that a federal habeas court had "the power" to discharge a state prisoner
awaiting trial, held that it was "not bound in every case to exercise such a
power," 117 U. S., at 251. The federal habeas statute did "not deprive the
court of discretion," which "should be exercised in the light of the relations
existing, under our system of government, between the judicial tribunals of the
Union and of the States," ibid. ____
This doctrine continues to be reflected in our modern cases. In declining to
extend habeas relief to all cases of state procedural default, the Court in Fay ___
v. Noia said: ____ 91-1030 - CONCUR/DISSENT
4 WITHROW v. WILLIAMS ____
"Discretion is implicit in the statutory command that the judge . . . `dispose
of the matter as law and justice require,' 28 U. S. C. S2243; and discretion
was the flexible concept employed by the federal courts in developing the
exhaustion rule." 372 U. S., at 438. See also Wainwright v. Sykes, supra, at __________ _____ _____
88. In fashioning this Court's retroactivity doctrine, the plurality in Teague ______
v. Lane, 489 U. S. 288, 308-310 (1989), also relied on equitable considerations. ____
And in a case announced today, holding that the harmless-error standard for
habeas corpus is less onerous than the one for direct review, the Court carries
on this tradition by expressly considering equitable principles such as
"finality," "comity," and "federalism." Brecht v. Abrahamson, ___ U. S. ___, ______ __________
___ (1993) (slip op., at 14-15). Indeed, as JUSTICE O'CONNOR notes, this
Court's jurisprudence has defined the scope of habeas corpus largely by means of
such equitable principles. See ante, at 2-4. The use of these principles, ____
which serve as "gateway[s]" through which a habeas petitioner must pass before
proceeding to the merits of a constitutional claim, "is grounded in the
`equitable discretion' of habeas courts." Herrera v. Collins, supra, at ___ _______ _______ _____
(slip op., at 12-13).
II
As the Court today acknowledges, see ante, at 4-5, the rule of Stone v. ____ _____
Powell, 428 U. S. 465 (1976), is simply one application of equitable discretion. ______
It does not deny a federal habeas court jurisdiction over Fourth Amendment
claims, but merely holds that the court ought not to entertain them when the
petitioner has already had an opportunity to litigate them fully and fairly.
See id., at 495, n. 37. It is therefore not correct to say that applying Stone ___ _____
to the present case involves "eliminating review of Miranda claims" from federal _______
habeas, ante, at 11, or that the Court is being "asked to exclude a substantive ____
category of issues from relitigation on habeas," ante, at 4 (opinion of ____
O'CONNOR, J.). And it is therefore unnecessary to discuss at length the value
of Miranda _______ 91-1030 - CONCUR/DISSENT
WITHROW v. WILLIAMS 5 ____
rights, as though it has been proposed that since they are particularly
worthless they deserve specially disfavored treatment. The proposed rule would
treat Miranda claims no differently from all other claims, taking account of all _______ ________________
equitable factors, including the opportunity for full and fair litigation, in
determining whether to provide habeas review. Wherein Miranda and Fourth _______
Amendment claims differ from some other claims, is that the most significant
countervailing equitable factor (possibility that the assigned error produced
the conviction of an innocent person) will ordinarily not exist.
At common law, the opportunity for full and fair litigation of an issue at
trial and (if available) direct appeal was not only a factor weighing against _
reaching the merits of an issue on habeas; it was a conclusive factor, unless __________
the issue was a legal issue going to the jurisdiction of the trial court. See
Ex parte Watkins, supra, at 202-203; W. Church, Habeas Corpus S363 (1884). ________________ _____
Beginning in the late 19th century, however, that rule was gradually relaxed, by
the device of holding that various illegalities deprived the trial court of
jurisdiction. See, e.g., Ex parte Lange, 18 Wall. 163, 176 (1874) (no ____ _ ______________
jurisdiction to impose second sentence in violation of Double Jeopardy Clause);
Ex parte Siebold, 100 U. S. 371, 376-377 (1880) (no jurisdiction to try________________
defendant for violation of unconstitutional statute); Frank v. Mangum, 237 U. S. _____ ______
309 (1915) (no jurisdiction to conduct trial in atmosphere of mob domination);
Moore v. Dempsey, 261 U. S. 86 (1923) (same); Johnson v. Zerbst, 304 U. S. 458,_____ _______ _______ ______
468 (1938) (no jurisdiction to conduct trial that violated defendant's Sixth
Amendment right to counsel). See generally Wright v. West, 505 U. S. ___, ___ ______ ____
(1992) (slip op., at 6-7) (opinion of THOMAS, J.); Fay, supra, at 450-451 ___ _____
(Harlan, J., dissenting). Finally, the jurisdictional line was openly abandoned
in Waley v. Johnston, 316 U. S. 101, 104-105 (1942). See P. Bator, D. Meltzer, _____ ________
P. Mishkin & D. Shapiro, Hart and Wechsler's 91-1030 - CONCUR/DISSENT
6 WITHROW v. WILLIAMS ____
The Federal Courts and the Federal System 1502 (3d ed. 1988) (hereinafter Hart
and Wechsler).
But to say that prior opportunity for full and fair litigation no longer
automatically precludes from consideration even nonjurisdictional issues is not_____________
to say that such prior opportunity is no longer a relevant equitable factor.
Reason would suggest that it must be, and Stone v. Powell, 428 U. S. 465 (1976), _____ ______
establishes that it is. Thus, the question before us is not whether a holding
unique to Fourth Amendment claims (and resting upon nothing more principled than
our estimation that Fourth Amendment exclusion claims are not very important)
should be expanded to some other arbitrary category beyond that; but rather,
whether the general principle that is the only valid justification for Stone v. _____
Powell should for some reason not be applied to Miranda claims. I think the______ ___ _______
answer to that question is clear: Prior opportunity to litigate an issue should
be an important equitable consideration in any habeas case, and should ___
ordinarily preclude the court from reaching the merits of a claim, unless it
goes to the fairness of the trial process or to the accuracy of the ultimate
result.
Our case law since Stone is entirely consistent with this view. As the Court _____
notes, ante, at 5-6, we have held that the rule in Stone does not apply in three ____ _____
cases. Kimmelman v. Morrison, 477 U. S. 365 (1986) involved alleged denial of _________ ________
the Sixth Amendment right to counsel, which unquestionably goes to the fairness
of the trial process. Rose v. Mitchell, 443 U. S. 545 (1979) involved alleged ____ ________
discrimination by the trial court in violation of the Fourteenth Amendment. We
concluded that since the "same trial court will be the court that initially must
decide the merits of such a claim," and since the claim involved an assertion
that "the state judiciary itself has purposely violated the Equal Protection
Clause," no opportunity for a full and fair state hearing existed. Id, at 561; __
see also id., at 563. And Jackson v. Virginia, 443 ___ _______ ________ 91-1030 - CONCUR/DISSENT
WITHROW v. WILLIAMS 7 ____
U. S. 307 (1979) involved a claim that "no rational trier of fact could have
found proof of guilt beyond a reasonable doubt," id., at 324, which is obviously ___
a direct challenge to the accuracy of the ultimate result.
III
The rule described above - or indeed a rule even somewhat more limiting of
habeas review than that - is followed in federal postconviction review of
federal convictions under 28 U. S. C. S2255. In Kaufman v. United States, 394_______ _______ _____________
U. S. 217 (1969), which held that res judicata does not bar S2255 habeas review
of constitutional issues, we stated that a district court had "discretion" to
refuse to reach the merits of a constitutional claim that had already been
raised and resolved against the prisoner at trial and on direct review. Id., at ___
227, n. 8. Since Kaufman, federal courts have uniformly held that, absent _______
countervailing considerations, district courts may refuse to reach the merits of
a constitutional claim previously raised and rejected on direct appeal. See,
e.g., Giacalone v. United States, 739 F. 2d 40, 42-43 (CA2 1984); United States____ _ _________ _____________ _____________
v. Orejuela, 639 F. 2d 1055, 1057 (CA3 1981); Stephan v. United States, 496 ________ _______ _____________
F. 2d 527, 528-529 (CA6 1974), cert denied sub nom. Marchesani v. United States, ________ __________ _____________
423 U. S. 861 (1975); see also 3 C. Wright, Federal Practice and Procedure
S593, p. 439, n. 26 (1982); Note, Developments in the Law - Federal Habeas
Corpus, 83 Harv. L. Rev. 1038, 1064-1066 (1970). Thus, a prior opportunity for
full and fair litigation is normally dispositive of a federal prisoner's habeas
claim. If the claim was raised and rejected on direct review, the habeas court
will not readjudicate it absent countervailing equitable considerations; if the
claim was not raised, it is procedurally defaulted and the habeas court will not
adjudicate it absent countervailing equitable considerations (e.g., actual ____ _
innocence or cause and prejudice, see United States v. Frady, 456 U. S. 152 _____________ _____
(1982)). 91-1030 - CONCUR/DISSENT
8 WITHROW v. WILLIAMS ____
Because lower federal courts have not generally recognized their discretion to
deny habeas relief in state cases where opportunity for full and fair litigation
was accorded, the peculiar state of current federal habeas practice is this:
State courts routinely see their criminal convictions vacated by federal
district judges, but federal courts see their criminal convictions afforded a
substantial measure of finality and respect. See Hart and Wechsler 1585. Only
one theory can possibly justify this disparity - the theory advanced in Fay v. ___
Noia, that a federal forum must be afforded for every federal claim of a state____
criminal defendant. (Ftnote. 1) See 372 U. S., at 418. In my view, that theory (Ftnote. 1)
is profoundly wrong for several reasons.
First, it has its origin in a misreading of our early precedents. Fay ___
interpreted the holding of Ex parte Royall - that federal courts had discretion _______________
not to entertain the habeas claims of state prisoners prior to the conclusion of
state court proceedings - as containing the implication that after conclusion of _____
those proceedings there would be plenary federal review of all constitutional ___
claims. 372 U. S., at 420. In fact, however, Royall had noted and affirmed the ______
common-law rule that claims of error not going to the jurisdiction of the
convicting court could ordinarily be entertained only on writ of error, not on
habeas corpus. 117 U. S., at 253. See Fay, 372 U. S., at 453-454 (Harlan, J., ___
dissenting). See also Schneckloth v. Bustamonte, 412 U. S. 218, 255 (1973) ___________ __________
(Powell, J., concurring). Royall contained no hint of a suggestion that a ______
federal habeas court should afford state court judgments less respect than
federal court judgments. To the contrary, it maintained the traditional view
that federal
____________________
1) Of course a federal forum is theoretically available in this Court, by 1)
writ of certiorari. Quite obviously, however, this mode of review cannot be
generally applied due to practical limitations. See, Stone v. Powell, 428 U. S. _____ ______
465, 526 (1976) (Brennan, J., dissenting). 91-1030 - CONCUR/DISSENT
WITHROW v. WILLIAMS 9 ____
and state courts have equal responsibility for the protection of federal
constitutional rights. The discretion of the federal habeas court "should be
exercised," it said, "in the light of the relations existing, under our system
of government, between the judicial tribunals of the Union and of the States,
. . . courts equally bound to guard and protect rights secured by the
Constitution." 117 U. S., at 251. And in describing the proper disposition of
a federal habeas petition filed after state conviction, Royall cited Ex parte ______ ________
Lange, 18 Wall. 163 (1874), which involved a federal habeas attack on a federal_____ _______
conviction. See 117 U. S., at 253. Thus, Royall is properly understood as ______
saying that the federal habeas statute guaranteed state prisoners, not a federal
forum for all their federal claims, but rather the same rights to federal habeas
relief that federal prisoners possessed.
Worse than misreading case precedent, however, the federal right/federal forum
theory misperceives the basic structure of our national system. That structure
establishes this Court as the supreme judicial interpreter of the Federal
Constitution and laws, but gives other federal courts no higher or more
respected a role than state courts in applying that "Law of the Land" - which it
says all state courts are bound by, and all state judges must be sworn to
uphold. U. S. Const., Art. VI. See Robb v. Connolly, 111 U. S. 624, 637 ____ ________
(1884); Ex parte Royall, supra, at 251; Brown, 344 U. S., at 499 (opinion of _______________ _____ _____
Frankfurter, J.). It would be a strange constitution that regards state courts
as second-rate instruments for the vindication of federal rights and yet makes
no mandatory provision for lower federal courts (as our Constitution does not).
And it would be an unworkable constitution that requires redetermination in
federal courts of all issues of pervasive federal constitutional law that arise
in state-court litigation.
Absent indication to the contrary, state courts should be presumed to have
applied federal law as faithfully as 91-1030 - CONCUR/DISSENT
10 WITHROW v. WILLIAMS ____
federal courts. See Ex parte Royall, supra, at 252; Brecht v. Abrahamson, ___ _______________ _____ ______ __________
U. S., at ___ (slip op., at 15). A federal court entertaining collateral attack
against a state criminal conviction should accord the same measure of respect
and finality as it would to a federal criminal conviction. As it exercises
equitable discretion to determine whether the merits of constitutional claims
will be reached in the one, it should exercise a similar discretion for the
other. The distinction that has arisen in lower-court practice is unsupported
in law, utterly impractical and demeaning to the States in its consequences, and
must be eliminated.
* * *
While I concur in Part III of the Court's opinion, I cannot agree with the
rest of its analysis. I would reverse the judgment of the Court of Appeals and
remand the case for a determination whether, given that respondent has already
been afforded an opportunity for full and fair litigation in the courts of
Michigan, any unusual equitable factors counsel in favor of readjudicating the
merits of his Miranda claim on habeas corpus. _______
