Oshinsky, John

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University of Baltimore School of Law

University of Baltimore Law ForumVolume 10Number 2 Spring 1980 Article 124-1-1980Supreme Court Decisions: Habeas Corpus-ADilemma RevisitedJohn OshinskyFollow this and additional works at: http://scholarworks.law.ubalt.edu/lfThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information,please contact snolan@ubalt.edu.Recommended CitationOshinsky, John (1980) "Supreme Court Decisions: Habeas Corpus-A Dilemma Revisited," University of Baltimore Law Forum: Vol. 10:No. 2, Article 12.Available at: http://scholarworks.law.ubalt.edu/lf/vol10/iss2/12AlLSUPREME COURTDECISIONSHabeas Corpus-A DilemmaRevisitedby John OshinskyDespite the trend toward limitation of habeas corpusreview,' the Supreme Court, in Rose v. Mitchell, 99 S. Ct.2993 (1979), widens the scope of review by holding thatfederal habeas corpus review may be used to redeter-mine constitutional questions adjudicated in state court.Rose began in November, 1972 in Tipton County, Ten-nessee, where a grand jury indicted black defendants formurder. Before trial, defendants filed a plea in abatementseeking dismissal of the indictment. They contended thatblacks had been systematically excluded from serving asgrand jury foremen. Three former Tipton County grandjury foremen testified at a March 18, 1973 evidentiaryhearing. At the conclusion of the inquiry, the judge de-nied the plea in abatement. The Tennessee Court ofCriminal Appeals affirmed. The Supreme Court of Ten-nessee denied certiorari and the defendants then filed ahabeas corpus petition in the United States Federal Dis-trict Court.Dismissing the petition, the Federal District Courtfound that the State had effectively refuted the defend-ants' prima facie case of discrimination in the grand juryforeman selection process. The United States Court ofAppeals for the Sixth Circuit reversed, holding that theState had failed to refute the respondants' claim of dis-crimination in the selection process.The United States Supreme Court granted certiorari.On July 2, 1979, in a split decision, the court held thatdefendants had failed to make a prima facie case of dis-crimination violative of the Fourteenth Amendment'sEqual Protection Clause in selection of a grand jury fore-man.The Court affirmatively answered the questionwhether claims of discrimination in the selection of thegrand jury foreman are cognizable on an application for awrit of habeas corpus by a defendant judged guilty at'In Wainwright v. Sykes, 433 U.S. 72 (1977), the adequate stateground doctrine, that state courts that have decided not to considerclaims for a nonconstitutional reason, was held to be nonreviewableon federal habeas corpus. This amounted to a rejection of Fay v. Noia,372 U.S. 391 (1973) with regard to this point. In Swain v. Pressley,430 U.S. 372 (1977), the Court, in a per curium decision, upheld thepower of Congress to remove habeas jurisdiction from federal courts,replacing it with an adequate remedy to be used in the local District ofColumbia courts. Both of these cases stem from Stone v. Powell, 428U.S. 405 (1979), which held first, that a forfeiture standard renews theadequate state ground doctrine, and second, to prevent habeas reliefwhen the state has provided an adequate post-conviction procedure.proceedings otherwise free of constitutional error. TheCourt recognized that a negative response would beviewed as a lack of fairness contrary to our system's prin-ciples of justice. The Court reached this conclusion de-spite its awareness of the costs associated with hearing acase. 2Justice Blackmun pointed out that the Supreme Court,in a continuous line of cases extending back to Strauderv. West Virginia, 100 U.S. 303 (1880), has held that "acriminal conviction of a Negro cannot stand under theEqual Protection Clause of the Fourteenth Amendment ifit is based on an indictment of a grand jury from whichNegroes were excluded by reason of their race ... Wheresufficient proof of discrimination in violation of the Four-teenth Amendment has been made out and not rebutted,this Court uniformly has required that the conviction beset aside and the indictment returned by the unconstitu-tionally constituted grand jury be quashed." Rose, supraat 2997-98. The Court in Rose, however, uses Strauderto justify extending the writ of habeas corpus eventhough Strauder involved a writ of error. 100 U.S. at 304.A writ of error is in no way analagous to the writ ofhabeas corpus. Habeas corpus seeks release of a pris-oner while a writ of error seeks to set aside a judgment onan alleged error of law. Neal v. Delaware, 103 U.S. 370(1881).Justice Blackmun noted that prior to Rose, only formerSupreme Court Justice Jackson had felt convictionsshould not be set aside because of discrimination in thegrand jury selection process. In his dissenting opinion inCassell v. Texas, 339 U.S. 282, 293 (1950), Justice Jack-son stated that discrimination in the grand jury selectionprocess is not connected with guilt or innocence becausethe grand jury does not make a final determination ofguilt or innocence. While acknowledging the harm of dis-crimination in the selection of grand juries, Justice Jack-son concluded that "however great the wrong towardqualified Negroes of the community," it was harmless tothe defendant. Id. at 304 (Jackson, J., dissenting).Although the issue as to the exclusion of blacks fromgrand and petit juries was raised as far back as 1880, thequestion of whether to review convictions on a writ ofhabeas corpus because of these exclusions has not yetbeen clearly resolved. As Justice Walter V. Schaefer ofthe Illinois Supreme Court has pointed out, "The prob-lem has remained an important and, to a degree, anunresolved one." Schaefer, Federalism and State Crimi-nal Procedure, 70 HARv. L. REV. 1, 3 (1956) [hereinafterSchaefer].2 These costs include time, money and, most important, its effect uponthe federal structure. The grant of habeas corpus by federal courts sapsthe justices' vitality and strains the already overtaxed budget, whileaccomplishing nothing. Pollack, Proposals to Curtail Federal HabeasCorpus for State Prisoners: Collateral Attack on the Great Writ, 66YALE L.J. 50 (1956).FORUMIn In re Wood, 140 U.S. 278 (1891), Wood, a blackman, was convicted of murder by a New York court.Following his conviction, Wood argued that the grandand petit juries before which he appeared excludedblacks from jury service. Affirming dismissal of the writ ofhabeas corpus. Justice Harlan stated that whether thegrand or petit jury was .discriminatorily selected "was aquestion which the trial court was entirely competent todecide and its determination could not be reviewed....upon a writ of habeas corpus, without making that writserve the purpose of writ of error." Id. at 286.The position of Justices Jackson and Harlan receivedsupport from other members of the Court in Rose. Jus-tices Stewart, Rehnquist and Powell agreed that inten-tional discrimination in the selection of the grand juryforeman was not reason enough to cast aside an other-wise error-free conviction. Additionally, Justice Powellstated that issuance of the writ of habeas corpus in Rosewas unsupported by the writ's history and purpose. Thewrit was intended to be limited to those instances inwhich the trial court lacked jurisdiction to render a com-petent judgment.Justice Powell agreed with the petitioner's view thathabeas corpus review has been extended too far, becom-ing, in fact, a continuation of the state appellate process.Thus, in Rose, the alleged discrimination in selecting agrand jury foreman did not create sufficient grounds forgranting habeas corpus review because the subsequenttrial was free from reversible constitutional error andthere had been a complete and impartial litigation in statecourt. As Justice Powell mentioned, Rose cast aside thetraditional purpose of the writ by allowing federal districtcourts to review state decisions "in criminal cases as therule, rather than the exception that it should be." ' 99S.Ct. at 3013 (Powell, J., concurring).As it had frequently done since Brown v. Allen, 344U.S. 443 (1953), the Supreme Court took for grantedthat the function of federal habeas corpus review was toredetermine the merits of federal issues previously liti-gated in state court. Brown allowed all constitutional is-sues to be reviewed under a writ of habeas corpus with-out considering the competency of the state court's adju-dication of the claim. Yet this writ should be used onlywhere the state court did not provide full and conscien-tious adjudication of federal claims.4 The administrationof justice would be better served by returning to the pre-3Justice Powell carefully pointed out that in such cases as Pierre v.Louisiana, 306 U.S. 354 (1939). Hill v. Texas, 316 U.S. 400 (1942),and Alexander v. Louisiana, 405 U.S. 625 (1972), "the question ofdiscrimination in selection of the grand jury was presented on directappeal, and there was no occasion to consider the proprity of federalcollateral attack." 99 S. Ct. at 3013 (Powell, J., concurring).'Judge Henry J. Friendly of the United States Court of Appeals for theSecond Circuit, sees no reason to single out claims of a constitutionalBrown federal habeas review standard. This attitude waslargely reflected in the Court's opinions in In re Wood,and in Frank v. Magnum, 237 U.S. 309 (1951), whichserved to reiterate Wood.There are significant problems arising from the expan-sion of federal habeas jurisdiction. While existence of ha-beas corpus serves as an ever-present reminder that fed-eral law is superior to state law, its expanded use hasintensified the rift between state and federal courts.'The concept of federalism necessitates that conflictsresulting from federal interference with the states' per-formance in adjudicating claims be outside the federaldomain in the absence of need, where the urgency forhabeas relief is as uncertain as it was in Rose. Accordingto one commentator, the desire for finality and settle-ment, legitimate goals of the criminal process, are under-mined by the continuous reexamination of questions as away of insuring that no errors were committed. 6 It is gen-erally acknowledged that it is inappropriate for a lonefederal district court judge to reexamine the correctnessof a state court conviction, especially where the convic-tion has been affirmed by the state's highest court andcertiorari has been denied by the United States SupremeCourt. Schaefer, supra at 17-18. Consequently, it hasbeen suggested that the use of federal habeas corpus hasretarded the administration of state criminal sanctions. Id.at 17.While Brown v. Allen, supra, involved problems relat-ing to federalism, it would be inappropriate to view theseproblems as simply a source of friction between state andfederal judges when state judges' decisions are reversed.Habeas review taxes the resources of the state judiciary,the State's Attorney's Office as well as the PublicDefender's Office. The process of justice falters becauseof the span of time between conviction in the trial courtand final habeas corpus relief, all attribut-able to the indiscriminate review of cases taken up onhabeas. While we should not be restricted by the fact thatthese resources are not available in unlimited supply, weshould be sensitive to this.The Brown decision opened the gates to a myriad ofhabeas petitions from state prisoners. Justice Jacksonspells out some of the resulting problems judges facenature as grounds for collateral attack where these questions havebeen completely addressed under equitable state proceedings. Ac-cording to Judge Friendly. it makes "good sense" to deny prisonersthe use of collateral attack following proper adjudication of claims instate court, for it would deter frivolous petitions. Friendly, Is InnocenceIrrelevant? Collateral Attack on Criminal Judgements, 38 U. CHI. L.REV. 142, 156-157 (1970) [Hereinafter Friendly].Wright and Sofaer, Federal Habeas Corpus for State Prisoners: TheAllocation of Fact Finding Responsibility, 75 YALE L.J. 895, 899(1966).6 Bator, Finality in Criminal Law and Federal Habeas Corpus for StatePrisoners, 76 HARV. L. REV. 4A1, 505 (1963) [Hereafter Bator].Friendly, supra at 148.when deluged by these petitions. The "frivolous and rep-etitious petitions ... prejudice the occasional meritoriousapplication to be buried in a flood of worthless ones. Hewho must search a haystack for a needle is likely to endup with the attitude that the needle is not worth thesearch." 334 U.S. at 536-537.One commentator is careful to point out that were theBrown decision overturned, this would not guaranteethat petitions lacking merit would disappear.' But giventhe physical limitations associated with our legal system, itmakes little economic sense and lacks reasoned institu-tional justification to redetermine the merits of a particularcase. There is, or should be, according to the commenta-tor, a presumption that if a job can be performed once itneed not be done twice.9Another side of this problem surfaces as a result ofinsufficient post-conviction remedies offered by manystates. Another commentator maintains that in such in-stances, collateral attack is the only avenue available topreserve a state prisoner's federal constitutional rights. " Ifno collateral attack were made available, then therewould be no sufficient remedy should facts be unearthedafter conviction. Both Alcorta v. Texas, 355 U.S. 28(1957), where the prosecution concealed evidence favor-able to the defendant, and Mooney v. Holohan, 294 U.S.103 (1935), where perjured testimony was introduced,illustrate the commentator's assertion. He recognizes theneed for habeas relief when courts are derelict in theirduty to insure a fair hearing.11 However, he fails tofathom the superfluousness connected with the extensionof the writ after state trial courts have thoroughly andfairly adjudicated constitutional questions. Brown.8 Bator, supra at 507.9 Id. at 450.10 Reitz, Federal Habeas Corpus: Post Conviction Remedy for StatePrisoners, 108 U. PA. L. REV. 461, 464 (1960)."Id. at 524.12 Of course, not all persons view relitigation as superfluous in nature.Some suggest that redundancy, with respect to a relitigation of erroralleged by the defendant, increases the probability that constitutionalrights will be protected. Robert M. Cover and T. Alexander Aleinikoff,Dialectical Federalism: Habeas Corpus and the Court, 86 YALE L. J.1035 at 1045, (1978). Aleinikoffs and Cover's views are acknowl-edged by Professor Pye, who feels that the expanded scope of ha-beas review, has led to the "implementation of constitution rightswhich have existed only in theory in the past." Pye; The WarrenCourt and Criminal Procedure, 67 MICH. L. REV. 249, 258 (1968).This article does not presume to suggest that trial courtsshould have the final say in all cases, nor does it recom-mend the reduction of federal guarantees for state pris-oners, which would surely make the administration ofjustice on the state level less consistent and more prone tomistake. It simply advocates the reduction of habeas ap-peal of claims fully adjudicated in state courts. The bur-den should be on the state courts to insure the safeguardsthat had previously been guaranteed through habeascorpus relief. This will serve the best interests of justice bypermitting the majority of state decisions, which are con-scientiously and constitutionally made, to stand. Onlywhere states do not provide full and conscientious adjudi-cation of federal claims and constitutional questions is it inthe interest of justice to grant habeas corpus review."Maybeit willgo away.The five most dangerous wordsin the English language.American Cancer Societ 4THIS SPACE CONTRIBUTED BY THE PUBLISHER AS A PUBLIC SERVICE

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