Rose v. Lundy Court Opinion

    l1l_11\: 1il? __ r'he t|nitetr .srrrrts r,Aw wriuK :t-z-tJz

pal. ciet'k. agent or. servunt to slll an,v itcms. effect,
lrarapher.nulia, itc(,essor.\' or thing u hich is rkrsignerl or
rnlrketerl Ii.'r.use sith illegal c:rnlurbis or rlrugs, as rle,-
finerl b,l' Illinois Rer.iserl Statutes, u-ithr,rut obtaining a Ii-
cense therefor. Such licenses shall be in acltlition to any
or all other licenses held by applicant.
B. Application:
Application to sr:ll arr.v item, efl'ect, parapher.nrrlia, acces_
sory or thing rvhich is tlesignetl or ntarketed for use with
illegal cannabis or drugs shall, in acldition to require-
ments of Article &1, be accompanied by affidavits b.v ap-
plicant and each and ever1, emplo.vee authorizecl to sell
such items that such pefson has ner.er been convictec.l of
a rlrug-related offense.
C. Nlinols:
It shatl be unlarrful to sell or give items as desctibecl in
Section 8-7-I(iA in an.r' form to an1' male or female chilcl
under eighteen years of age.
D. Records:
Everl' licensee must keep a recor(l of er.erf item, effect,
paraphernalia, accessorv or thing s.hich is clesigner.l or
marketed lor use u'ith illegal cannabis or cin:gs *hich is
sold and this recorrl shall be open to the inspection of any
police officer at anv time dur.ing the houls of business.
Such record shall contain tlie name ancl adclress of the
purchaser, the name ancl quantit.v of the procluct, the
date and time ofthe sale. and the licensee oragent ofthe
licensee's signature. such recortls shall be retainecl for
not less than trvo (2) years.
E. Regulations:
The applicant shall comply rvith all applicable regulations
of the Department of Health Services ancl the police
Department.

Scctiorr l: Th:,rt the Hoflnran Estates )Iuncipal Cocle be
anrenrlerl b1'arlrling to Sec. li-2-l Fees: llerchanis (proclucts)
the arlditional language as follou.s:

Itenrs rlesignecl ur marketed for use t-ith illegal cannabis
or drugs $150.00

Spr'lir.rrr .i: Penalt-,-. An.v ;ter.son violati.g an;' provision of
this orclinance shall be finetl not less than ten clolLrs ($10.00)
n()r mol'e than five hundred dollars ($500.00) for the first of-
fense and succeeding offenses during the sarne calendar ),ear,
and each da1' that such r.iolation shall continue shall be
deemed a separate and distinct offense.
Secliorr j: That the Village Clerk be ancl is hereby authorized
to publish this orclinance in panrphlet form.
Scclir.rrr 5: That this orrlinance shall be in full force and effect
Mal' I, l9?8, after its passage, appr.or.al ancl publication ac-
coxling to larv.

Jusrtcu Wrrrre , concurring in the judgment.
I agrere that the jurlgment of tle Courl of Appeals nrust be

reverserl. I do not, horvever, believe it necessary to riiscuss
the overbreatlth problem in order to t.cach this result. The
Court ofAppeals hekl the ordinance to be void for vagueness;
it dir.l not discuss any problem of overbreadth. That opinion
should be reversed simpty because it errerl in its analysis of
the vagueness problem presentecl bl,the <lrrlinance.

I agree u'ith the nrajorit.r' that a facial valfucness challenge
to an eeononric regulation must denronstrate that "the enact-
ment is irnpermissibly vague in all rtf its applications." In/'ro,
at l-r. I also agree with the majority's statemerlL that the
"nrarketed for use" standard in the orrlinance is "sufficiently
clear." There is, in my vierv, no nee,l tt.r go any further: lf it
is "transparently clear" that some particular contluct is re-

stricterl liy thc orrlinanr:e, thc ordinance survives a facial
challenge on vagueness groun(ls.

'fechnically, overbreatlth is a standing rirrctrine that per-
nrits parties in cases involving First Amendnrent challeriges
t(, government restr.ictions on noncommercial speech to argue
that the regulation is invalirt because of its effect orr ,he First
Amendment tights of others, nr.rt pr.c,sently before the Clourl,
['troaLlick v. Oklahonur, 4ll] U. S. d0l, (il:]-6lir Og?B).
Whether the appellees may make use of thc overbrearlth rloc-
trine depends, in the first instance, on u,hether or not they
have a colorable claim that the ordinance infringes un .on-
stitutionaily protected, noncommercial speech of others. Al-
though appellees claim that the ordinance does have such arr
effect, that argument is tenuous at best and should be left to
the lower courts for an initial determination.

Accordingly, I concur in the juclgment reversing the deci-
sion below.

RICIIARD n\. WII.LIAMS. Holfnran fisratcs, lll., for appcltrnrs; Ml-C-'llAIi l_. pRtTZKt:R. Chicago, Iil. (R. BRF.Ni o,rxlUf_ iia lutntrx t..SULLIVn N, with him on rhc b;ief) for appcllec.

No.8G&16 r rr

JII,I ROSE, WARDEN, PETITIONER u. NOAH
HARRISON LUNDY

ON WRIT OF CERTTORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT

fottouxd Lr otlr c,45&,r-
No.80-846. Argued October 14, l98t-Decided March B, 1982

Title 28 U. S. C. {$ 25.1(b) and (c) provide that a srate prisoner's applica-
tion for a srit of habeas corpus in a fetleral distnct court ba^sed on an
alleged federal constitutional violation *ill not be gr.anted unless the ap-
plicant has exhausted the remedies available in the state courts. A-ft,er
respondent was convicted of cenain charges in a Tennessee state coun
and his convictions were affirmed, he unsuccessfully sought postconvic-
tion relief in a stare court. He then filed a petition in Federal District
Coun for-a writ of habeas corpus under $ 225.1. alleging four specified
grounds ofrelief. The District Court granted the writ, norwithstanrling
that the petition included both claims that had not been exhausted in the
state coufts and those thar had been. The Court of Appeals aflirmed.

Held; The judgment is reversed and the case is remanded.
624 F. 2d 1100, reversed and remanded.

JusTIcE O'CoHNon delivered the opinion of the Court $ith respect io
Parts I, II, III-.q,, III-B, and IV, concluding that.ir disrrict court rrtqst dis-7

ii=,!"rut*+:tttt"PA rule requiring exhaustion of all claims in state courts promotes comity-
and furthers the purposes underlfing the exhaustion doctrine, as corlified
in S$225{(b) and (c), ofprotecting the state courts,role in the enforcement
of federal larv and preventing disruption of state judiciai proceedings.

JusrrcE O'CoNNoR, joined by CrrrEF JusrrcE BuRcER, JusTrcE
PowELL, a:rd Jusrrcs Rruxqursr, concluded in pan III-C that the total
exhaustion r.rle rvill not impair the state pnsonels interest in obtaining
speedy federal r.elief on his claims, since, rather than returning to state i
court to exhausr all uf his claims, he can always amend the petitir_rn to de- [
Iete the une.rhausted claims. aithough by tloing so he wouid risk rlismissal 

lof subsequent federal petitions.
O'CoNNoR, J., announced the Court's judgment and delivered an opinion

of the Court with respect to Parts I, II, III-A, III-B, and IV, in u'hich
BURGER, C. J., and BRENNATv, IIARSIIALL, powELL, and RrHxqursr,
JJ., joined, and an opinion uith respcct to Part IU-C, in which BuRcER,
C. J., and Poweu- end Renrqursr, JJ., joined. BL^oLyuN, J., filed an
opinion concurring in the judg'rnent. BRENNAN, J.. filed an opiniun con-
curring in prrt an(l dissenting in J,art, in l.hich Melsruu.t, J., joined.
Wtltte, J., filed an opinion concurring in part and dissenting in part. Sre-
vuxs, J., liled a disscnting opinion.

Jusucr O'CoNxon delivered the opinion of the Court ex-
cept as to Part [II-C.

ln this case we consider whether the exhaustion rule in 28

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U. S. C. $$225a(bHc) requires a fetleral district court to
dismiss a petition for a writ of habeas corpus containing any
claims that have not been exhausted in the staLe courts. Be-
cause a rule requiring exhaustion of all claims furthers the
purposes underlying the habeas statute. we hold that a dis-
trict court must dismiss such "mixed petitions," leaving the
prisoner with the ehoice ofreturning to state court to exhaust
his elaims or of amending or resubmitting the habeas petition
to present only exhausted claims to the district court.

I
Following a jury trial, respondent Noah Lundy was con-

victed on charges of rape and crime against nature, and sen-
tenced to the Tennessee State Penitentiary.' A-fter the
Tennessee Court of Criminal Appeals afflrmed the conrric-
tions and the Tennessee Supreme Court denied review, the
respondent filed an unsuccessful petition for post-conviction
relief in the Knox County Criminal Court.

The respondent subsequently filed a petition in federal Dis-
trict Court for a writ of habeas corpus under 28 U. S. C.
$2254, alleging four grounds for relief: (1) that he had been
denied the right to confrontation because the trial court lim-
ited the defense counsel's questioning of the victim; (2) that
he had been denied the right to a fair triai because the pros-
ecuting attorney stated that the respondent had a violent
character; (3) that he had been denjed the right to a fair trial
because the prosecutor improperly remarked in his closing
argument that the State's evidence was uncontradicted; and
(4) that the trial judge improperly instructed the jury that
every witness is presumed to swear the truth. After re-

'viewing the state court records, horvever, the District Court
concluded that it could not consider claims three and four "in
the constitutional framework" because the respondent had
not exhausted his state remedies for those grounds. The
court nevertheless stated that "in assessing the atmosphere
of lhe cause taken as a whole these items may be referred to
collaterally. "'

Apparently in an effott to assess the "atmosphere" of the
trial, the District Court reviewed the state trial transcript
and identified l0 instances of prosecutorial misconduct, only
five of which the respondent had raised before the state
coutts.r In addition, although purportedly not ruling on the

'The court sentenced the respondent to consecutive terms of 120 years
on the rape charge and from five to l5 years on lhe crime against nature
charge.

'The Tennessee Criminal Court of Appeals had ruled specifically on
grounds one and two, holding that although the trial court erred in restrict-
ing cross examination of the victim and the prosecuting attorney improp

(l) misrepresented that the defense attorne)'rvas guilty of illegal and
unethical misconduct in interviewing the victirn before trial.

(2) "testified" that the victim wa| telling the tnrr.h on the stand.
(3) stated his view of the proper method for the defense attorney lo in-

terview the victim.
({) misrepresented the law regarding interviewing government

rvitnesses.
(5) misrepresented that the victim had a right for both private counsel

and the prosecutor to be present when inten'ieu'ed by the tlefense counsel.
(6) represented that because an attorney was not present, [he defense

counsel's conduct was inexcusable.
(7) represented that he could validly file a grievance u'jth the Bar Asso-

ciation on the basis of the defense counsel's conduct.
(8) objtcted to defense counsel'g cross e-ramination of the rrctim.
(9) conrmented that the defendant had a violent narure.
( l0) gave his personal evaluation of the State's proof.
'l'he petitioner concedes that the state appellate court considered in-

stances 1,3, {. 5, and 9, but states without contradiction that the respond-

respondent's fourth ground for relief-that the state trial
judge improperly charged that "every witness is presumed to
srvear the truth"-the coutt nonetheless held that the jury
instruction, coupled with both the restriclion of counsel's
cross examination of the victim and the prosecutoy's "per-
sonaj testimonv" on the weight ofthe State's evidence, see n.
3, su,pra, violated the respondent's right to fair trial. In con-
clusion, the District Court stated:

"Also, subject to the qqestion ofexhaustion ofstate rem-
edies, where there is added to the trial atmosphere the
comment of the Attorney General that the only story
presented to the jury was by the state's witnesses there
is such mi-xture of violations that one cannot be sepa-
rated fi'om and considered independently of the others.

Under the charge as given, the iimitation of cross exami-
nation of the victim, and lhe flagrant prosecutorial mis-
conduct this court is compelled to find that petitioner did
not receive a fair trial, his Slxth Amendment rights were
violated and the iurv ooisoned bv the Drosecutorial
mrsconouct."'

ln ,t oilIiltrict Court considered several instances of
prosecutorial misconduct never challenged in the state trial
or appellate courts, or even raised in the respondent's habeas
petition.

In an unreported order, the Sifih Circuit affirmed the
judgment of the District Court, concluding that the couft
properly found that the respondent's constitutional rights
had been "seriously impaired by the improper [mitation of
his counsel's cross-examination of the prosecutrlx and by the
prosecutorial misconduct." The court specifically rejected
the State's argument that the District Court should have dis-
missed the petition because it included both exhausted and
unexhausted claims.

II
The petitioner urges this Court to apply a "total exhaus-

tion" n:le requiring district courts to dismiss e@taEEIs

See
and

corpus petition that contains both exhausted and unex-
hausted claims.i The petitioner argues at length that such a

ent did not object to the prosecutors statement that the victim \vas telling
the truth (#2) or to any of the several instances where the prosecutor, in
summation, gave his opinion on the weight ofthe evidence (#10). The pe-
titioner also notes that the conduct identified in #6 and #7 did not occur in
front of the jur"v, and that the conduct in #8, which was only an objection to
cross examination, can hardly be labelled as misconduct.

'The court granted the writ and ordered the respondent discharged
from custody uniess within 90 days the State initiated steps to bring a new
triai.

s adopted a "total exhaustion" rule
1978) (en banc

the courts of appeals, however, have permitted the district courts to re-
view the exhausted claims in a mixed petition containing both exhausted
and unexhausted claims. See. e. o., Katzv. King,627 F. 2d568, 574 (CAl
1980\; Cameron v. Fasto.lf ,5.13 t'. 2d 971, 976 (CA2 1976); United States ex
reL. Tratino v. Hatrack,563 F. 2d 116, 9l-95 (CAB 1977). cert. denied, 435

U. S. 928 (197$; Hetcett v. North Carolina,4It F. 2d l31ti, 1320 (CA4
1969); .}feeics v. Jago,548 F. 2d l3^1, 137 (CA6 1976), cert. denied, .134

U. S. &14 (1977"); Brou,n v. lf iscorrsirr State Dep't of PubLic Welfare, 157 F .

2d 25i, ?59 (CA?), cen. denied, .109 U. S. 862 (19i2): Tyler v. Srtenson,
{83 F. 2d till. 6l{ (CA8 l9?3); Whiteley v. Meacham,4f6 F. 2d 36, 39
(CAl0 1969), rev'd on other grounds, 401 U. S. 5{j0 (1971).

In Gooding v. iVilsoz, {05 U. S. 518 (19?2), this Court reviewed the
merits of an exhausted claim after expressly acknowledging that the pris-
oner had not e.x}austed his state remedies for all of the claims presented in
his habcas petition. Crtoding does not control the present case, however,
since the question of total exhaustion was not before the Court. Trvo
years later, in Francisco v. Gathright, {19 U. S. 59, 63-6.1 (1974) (per
cunom), the Court expressly resen'ed the question of whether $ 2254 re-
quires total exhaustion of claims.

erly alluderl to the
prejudiced by these

's violent nature, the respondent was not
v. Slole, 521 S.W-zd 591, 59L5fti

(Tenn. Crim. Aoo. 1974).

rict Court found that the prosecutor improperly:



5l) l,W .l'27,1 'I'ho llnitctl Srarr,.,r l,AW WIiIiK :l.Z-ll2

nrle furthers the policy of comily underlying the e.xheus[ion
doctrine because it gives the state courts the first opportu-
nity to correct fetleral constitutional errors and minimizes
federal interference and dismption of state judicial proceed-
ings. The petitioner also believes that uniform adherence to
a total exhaustion mle reduces the amount of piecemeal ha-
beas litigation.

Under the petitioner's approach, a clistrict court rvould dis-
miss a petition containing both exhausted and unexhausted
claims, giving the prisoner the choice of returning to state
court to litigate his une.xhausted claims, or of proceeding
with only his exhausted claims in federal courl. The petii

I tioner believes that a prisoner would be reluctant to ch-oose
j the latter route since a district court could, in appropriate cir-
/cumstances under Habeas Corpus Rule g(b), 2g U. S. C.

I $2254. dismiss subsequent federal habeas petitions as an
Gbuse of the writ.' In other words, if the prisoner amended

the petition to delete the unexhausted claims or immeriiately
refiled in federal eourt a petition aileging only his exhausted
claims. he could lose the opportunity to litigate his presently
unexhausted claims in federal court. This argument is ad-
dressed in Part C, infra, of this opinion.

In order to evaluate the merits of the petitioney's argu-
ments, we Lurn to the habeas sta tive history,
and the polici "'

crl,ly applied the e.xhaustion doctrine to habeas petitions con-
taining both exhausted and unexhausted claims.

In 1948, Congress codified the exhaustion doctrine in 2g

Y S 9. 9?254: citing Or parte Hawk as correcly staring
the principle of exhaustion.s S_ection 22b4,, horvei.er, doei
not directly address the problem of mixetl Jretitions. To be
sure, the provision states that a remeciy is-rri:c exhausted if
there e-dsts a state procedure to raise ,,the question pre-
sented," but we believe this phrase to be too arnbiguous t<.,

sustain the conclusion that Congress intende<.I to either per-
mit or prohibit review of mixed petitions. Because the legis-
lative history of,9D54, as well as lhe pre-1g48 cases, contiins
no referencg to the problem 9f mixed Le.!i!i9"n-s_,0 in all lik_eli-
hood Congress never thought of thg prqblemJ"^ Conse-
quently, we must analyze tle policies underlying the statu-
tory provision to determine its proper qcope. philbrook v.
Glodgett, 42L U. S. 707, 713 (19TS) (,,,[i]n expounding a srat-
ute, we must. . .look to the provisions of the rvhole larv, and
to its object and poliey.' [citations omitted],'): United States
v. Bacto-Unidisk,394 U. S. 78.1, ?99 0969) (,,where the stat-
ute's language seem[s] in-sufficiently precise, the ,naturai
way' to draw the line 'is in light of the statutory purpose' [ci-
tation omitted)"); United Stotes v. Sisson, Bgg U- S. 267,
297-298 (i970) ("[t]he axiom that courts should endeavor to
give statutory language that meaning that nurtures the poli-

rpj bar relief where the state remedies are inadequate or fail to ..atTord 
a

full and fair adjudication of the federal conrentions raised." E,t parte
Hauk,32l U. S. 114, 118 (1944).

"The Revisey's Notes in the appendlx ofthe House Repoft states: ,,This

new section [$ 25a] is declaratory of eristing law as affirmed by the Su-
preme court. (see Etparte Horu&, 19.14, 0l s. ct. 4.t8,321 u. s. 114. gg
L. Ed. 572.)." H.R. Rep. No. 808,80th Cong., lsr Sess., Al80 (1947).
See also Donv. Burford. 339 U. S. 200, 210 (1950) (,.1n !2&i4 of the l94t]
recodification of the Judicial Code, Congress gave legislative recognitron to
lhe Ha**k ru.le for the exhaustion of remedies in the state courts and this
Coun."); Brou,tr. v. Allen, SM U. S. 44i], 44HS0 0953); {gC.-". l'r.lS.!!guE rgl"-l&t (1e60.

'Section 325{ in part provides:
"(b) .{n appiication for a writ of habeas corpus in behalf of a person in

custody pursuant to the judgment of a State court shal.l not be granted un-
Iess it appears that the applicant has exhausted the refrEdies available in
the courts of the Stare. gI that there is either an absence of available State
correctlve process or th'e e.ristence of circumstances rendering such pro-
cess ineffective to prot€cr the rights of the prisoner.

(e) Ar applicant shall not be deemed to have exJiausred rhe remedies
avai.lable in the courts of the State, within the meaning of this section. if he
has the right under the law ofthe State to raise, by an_,- available proce-,/
dure, the question presented." v

'o Section 2*1 u'as one small par.t of a comprehensive revision of the Ju- \

dicial Code. The o.ng11al veplo1of $ 22Sf , as passed b1r the House, pro- I

vided that:
"ila appl.ication for a *rit of habeas corpus in behalf of a penon in custody
pursuanr to the judgment of a State cowt or authority of a Sute officer I
shall not be granted unless it appears that the applicant has exhausted the
remedies available in the courts ofthe State, or that there is no adequateA
Lellggy syal]&l:. in such courts or that such couts have denled irim i-fE' 

'

adjudication of the lega[ty of his detention under the Constitution and laws
of the United States."

Thc Senatc amended the House bill. changrng the House version of 0 21|54
to its prcsent form. The Senate Report accompanying the bill states that
one purpose of the amendment was ,'to substitute detailed and specific lan-
guage for the phrase 'no adequate remedy available.' That phrase is not
sufficiently specific and precise. and its meaning should, therefore. be
spelled out in more detail in rhe section as is done by the amendment.,, S.
Rep. No. 1559, 8fth Cong., 2d Sess., l0 0948). The House accepted rhe
Senate version of the Judicial Code without further amendment.
In 1966, Congress amended the $2254 to adcl subsection (a) and rerjes-
ignate the existing paragraphs as subsecLions (b) and (c). See pub. L.
E9-7r1, $ 2 (e), 80 Stat. 1105.

" See Note, Habeas Petitions rvith Exhausted and Unexhausted Claims:
Speedy Release, Comity and Judicial Eticiencl., J7 B.U.L. Rev. g6{. 36?
n. 30 (1977) (suggesting that before lg{8 habeas peritions did not contain
multiple claims).

IA

III
A

The exhaqqtion doctrine existed lons before its codification
Uy Congr-ffi-f5lE-ii7 r parte Roiatt.ltT U. S. Z4t,ZSt
(1886), this Court wrote that as a matter of comity, federal
courts should not consider a claim in a habeas corpus petition
until after the state courts have had an opportunity to act:

"The injunction to hear the case summarily, and there-
upon 'to dispose of the party as law and justice require'
does not deprive the court of discretion as to the time
and mode in which it will exert the powers conferred
upon it. That discretion should be exercised in the light
of the relations existing, under our system of govern-
ment, between the judicial tribunals of the Union anci of
the States, and in recognition of the fact that the public
good requires that those relations be not disturbed by
unnecessary conflict bettveen courts equally bound to
guard and protect rights secured by the Constitution."

Subsequent cases refined the principle that state remedies
must be exhausted except in unusual circumstances. See,
e. 9., United States, ex rel. Kennedy v. Tyler,269 U. S. 18,
17-19 (1925) (holding that the lower court should have dis-
missed the petition because none of the questions had been
raised in the state courts. "In the regular and ordinaqv
course of procedure, the porver of the highest state court in
respect of such questions should frst be exhausted."). In
Et parle Hawk,'321U. S. 114, fiZ tt9++1, this Court reit-
erated thatlggiin@as the basis for the exhaustion doctrine:
"it is a priniiple c()ntrolling all habeas corpus petitions to the
federal courts, that those courts will interfere with the ad-
ministration ofjustice in the state courts only 'in rare cases
where exceptional circumstances of peculiar urgency are
shown to exist."'? None of these cases, horvever, specifi-

'Rule 9 (b) provides that:
"A second orsuccessive petition may be dismissed ifthejudge finds that it
fails to allege new or different grounds for relief and the prior determina-
tion was on the merits or, if new and different grounds are alleged, the
judge finds that the failure of the petitioner to assert those grounds in a
prior petition constituted an abuse of the srit."

'The Court also made clear, however, that the exlaustion doctrine does

^
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eics underlying the legislation is o,re that guides us when cir-
cumstances not plainly covered by the terms of the statuto
are subsumed by the underlying policies to which Congress
was committed"); Llnercell,ed Chemical Crtrp. v. United
States,345 U. S. 59, 64 (1953) ("[a]rguments of policy are rel-
evant when for example a statute has an hiatus that must be
filled or there are ambiguities in the legislative language that
must be resolved").

B

The exhaustion doctrine is principally designed to protect
the state courts' role in the enforcement of federal Iaw and
prevent disruption of state judicial proceedings. See
Braden v. 30th Judicial Circuit Cou,tl of Kentucky, 410
U. S. 4&1, 490-191 (1973)." Under our federal system, the
fetleral and state "courts [are] equally bound to guard and
protect rights secured by the Constitution." Ea parte Roy-
all, su,pra, aL 251. Beeause "it would be unseemly in our
dual system of governntent for a federai district court to
upset a state court conviction without an opportunity to the
state courts to correct a constitutional violation," federal
courts apply the doctrine of comity, which "teaches that one
court should defer action on causes properly within its juris-
diction until the courts of another sovereignty with concur-
rent powers, and already cognizant ofthe litigation, have had
an opportunity to pass upon the matter." Darr v. Bzr,rford,
339 U. S. 200, 204 (1950). See Du.ckworth v. Senano, 451
U. S. 

- 
(1987) (per uriam.) (noting that the exhaustion re-

quirement "serves to minimize friction between our federal
and state systems of justice by alloutng the State an initial
opportunity to pass upon and correct alleged violations of
prisoners' federal rights").

A rigorously enforced total e.xhaustion rule will encourage
state prisoners to seek full relief first from the state courts,

.. thus giving those courts the first opportunity to review all
claims of eonstitutional error. As the number of prisoners
who exhaust all of their federal claims increases, state courts
may become increasingly famiiiar with and hospitabie toward
federal constitutional issues. See Braden v. 30th Judicial
Circuit Court of Kentucky, supra, at 490. Equally as impor-
tant, federal claims that have been fully exhausted in state
courts will more often be accompanied by a complete factual
record to aid the federal courts in their review. Ct. 28
U. S. C. $ 2254 (d) (requiring a federal court reviewing a ha-
beas petition to presume as correct factual flndings made by a
state court).

The facts ofthe present case underscore the need for a rule
encouraging exhaustion of all federal claims. In his opinion,
the district court judge wrote that "there is such mlrture of
violations that one cannot be separated from and considered

\ independently of the others." Because the trvo unexhausted

I claims for relief were intertwined with the exhausted ones,
I the judge apparently considered all of the claims in ruling on

the petition. Requiring $ismissal of petitions containing
both exhausted and unexhausted claims will relieve the dis-
trict courts of the difficult if not impossible task of deciding
rvhen claims are related, and will reduce the temptation to
eonsider unexhausted claims.

In his dissent, JUSTtcr Srevrus suggests that the District
Court properly evaluated the respondent's trvo exhausted
clainrs "in the context of the entire trial." Post, al 4. Un-

, questionably, however, the District Court erred in consicler-

I ing unexhausted claims, for $2251(b) expressly requires the
I prisoner to e.xhaust "the remedies available in the court of
I the State." See n. 9, supro. Moreover, to the extent that

''Ste alsu l)evclopments. l.'crloral Il:rbca-s Corpus, 33 Huv. L. Rcv.
l0lJ8, 109.1 (1970) (cited favorably in Bratlenl.

exhausted and une.xhauste<l claims are interrelaled,
efal ruleJ.mons the ?u.ts,of apleg.ls is,to.dismiss
beaqg4ilt-qgq_for exhLustion of all such claimsj
r ri6tn : Ifr n"i c k. 549 F. ffi tm3-i9mi :mi
oea!_Lel]:ll-9nlror elnw bee €. 9.,
rriFt;tn : Ifri"ick, 54s F. ffileIF-lf,fiiffiiter v. Hiu,
536 F. 2d 967 (CAl l9i6); Hewett v. North CaroLina, 4L5 F.
2d 1316 (CA4 1969).

Rather than an "adventure in unnecessary lawmaking"
(StnveNs, J., post, at 1), our holdings today reflect our inter-
pretation of a federal statute on the basis of its languago and
legislative history, and consistent u'ith its uncierlying poli-
cies. There is no basis to believe that today's holdings will
"compiicate and delay" the resolution of habeas petitions
(Srnvoxs, J., post, at 13), or uill serve to "trap the unwary
pro se prisoner." (BlacxltuN, J., post, at g). 0n the con-

to use t machinery, so too should lhey
be able to master this stlaightfonilald e$gslion__Iggilg-
menL Those prisoners rvho misunderstand this requirement /
and submit mixed petitions nevertheless are entitled to re- [
submit a petition with only e.xhasuted claims or to exhaust I
the remainder of their claims.

Rather than increasing the burden on federal coufts, strict
enforcement of the exhaustion requiremenl u'i1l encourage
habeas petitioners to
and to present the feder
To the e.xtent that the exhaustion requirement reduces piece-
meal litigation, both the courts and the prisoners should ben-
efit, for as a result the distlicl court u'ill be more likely to
review all of the prisoner's claims in a single proceeding, thus
providing for a more focused and thorough revierv.

C

The prisoner's principal interest, of course, is in obtaining
speedy federal relief on his claims. See Braden v. J?th J tLdi-

cial Cirutit Court of Kentucky, supra, at 490. A total ex-
haustion rule will not impair that interest since he can always
amend the petition to delete the unexhausted claims, rather
than returning to state court to exhaust ail ofhis claims. By
invoking this procedure, however, the prisoner would risk
forfeiting consideration of his unexhausted claims in federal
court. Under 28 U. S. C. $2254 Rule 9(b), a district court
may dismiss subsequent petitions if it finds that "the failure
ofthe petitioner to assert those [new] grounds in a prior peti-
tion constituted an abuse ofthe wdt." See n. 6, szpro. The
Advisory Committee to the Rules notes that Rule 9 (b) incor-
porates the judge-made principle governing the abuse of the
writ set forth in Sanders v. United States,373 U. S. 1, 18
(1963), where this Court stated that

"if a prisoner deliberately withholds one of two grounds
for federal collateral relief at the time of flIing his first
application, in the hope of being granted two hearings
rather than one or for some other such reason, he may be
deemed to have rvaived his right to a hearing on a second
application presenting the withheld ground. The same
may be true if, as in ll/otg Doo, the prisoner deliberately
abandons one of his grounds at the first hearing. Noth-
ing in the traditions of habeas corpus requires the fed-
eral courts to lolerate needless piecemeal litigation, or to
entertain collateral proceedings rvhose only purpose is to
vex, harass, or delay."'r

'' ln lfrrrro Doo v. United Sla/r.r, 2li5 U. S. 239 (192{), the petitioner
brought trvo hubra.r co4rus petitions to obtain release from the custo(ly oft
deportation order. The ground for relief contained in the second petition

/

claims to)lalms to Ieoeral coun, De sure [nal you nrst have taken
one to state coq4l11Just as pl'o se petitioners have man-



I->0 LW ,1.27(r Tlrc linitctl Srarcs LAW WEIIK 3-2-82

See Advisory Committee Note to Habeas Corpus Rule 9(b),
28-U. S. C., p. 273. Thus a prisoner rvho decides to proceed
only u'ith his exhausted claims and deliberatelv sets aside his
unexhausted claims risks dismissal of subsequent federal
petitions.

IV
In sum, because a total e.rhaustion rule promotes comity

and does not unreasonably impair the prisoner,s right to re-
Iief. we hold that a district court must dismiss habeas peti-
tions containing both unexhausted and exhausted claims.,n
Accordingly, the judgment of the Court of Appeals is re-
versed and the case remanded to the District Court for pro-
ceedings consistent with this opinion.

/t is so ordered.

Jusncr BlecxuuN, concurring ln the judgment.
The important issue before the Court in this case is

whether the conservative "total exhaustion" rule espoused
norv by t'wo Courts of Appeals, the Fifth and the Ninth Cir-
cuits, see ante, at 4. n. 5, is required by 28 U. S. C.
$$ 2254(b) and (c), or whether the apprygg.!_qg!-o,plsdhfeielt

A
The Courl correctly observes, ante, aL ?-8, that neither

the language nor the legislative history ofthe exhaustion pro- ,

visions of $$ 2251(b) and (c) mandates dismissal of a habeas
petition containing both e.xhausted and unexhausted claims.
Nor does precedent dictate the resuit reached here. In pi. j

card v. Connor,404 U. S. 270 (1971), for example, the Court
ruled that "once the federal clairn has been fairly presented
to the state courts, the exhaustion requirement is satisfied.,'
Id., at 275 (emphasis supplied). Respondent complied with
the direction in Picard with respect to his challenges to the
trial court's limitation of cross-examination of the victim and
to at least some of the prosecutoy's ailegedly improper
comments.

ate treatment of mixed habeas petitions, thei' plainly suggest
that state courts need not inevitably be given every opportu-
nity to safeguard a prisoner's constitutional rights and to pro-
vide him relief before a federal court may entertain his ha-
beas petition.'

B

In reversing the judgment of the Sixth Circuit, the Court
focuses, as it must, on the purposes the exhaustion doctrine
is intended to serve. I do not dispute the importance of the
exhaustion requirement or the validity of the policies on
rvhich it is based. But I cannot agree that those concerns
rvill be sacrificed by permitting district courts to consider er-
lnusted habeas claims.

The first interest relied on by the Court involves an off-
shoot of the doctrine of federal-state comity. The Court
hopes to preserve the state courts' role in protecting con-
stitutionai rights, as well as to afford those courts an op-
portunity to correct constitutional errors and-somewhat
patronizingly-to "become increasingly familar with and
hospitabie toward federal constitutional issues." Ante, at
10. My proposal, however, is not inconsistent with the
Court's concern for comity: indeed, the state courts have oc-
casion to rule first on every constitutional challenge, and
have ample opportunity to correct any such error, before it is
considered by a federal court on habeas.

In some respects, the Cour!'s ruiing appears more destruc-
tive than soiicitous of federal-state comity. Remitting a ha-
beas petitioner to state bourt tr-r e.xhaust a patently frivolous
claim before the federai court may consider a serious, ex-
hausted ground for relief hardly demonstrates respect for the
state courts. The state judician/s time and resources are

'ln Brou'n v. Allen,3J4 U. S. 4,{.3, 147 (1953), the Court made clear that
the eiFausiiofrfl6tiffi'e does not foreclose federal habeas relief rvhenever a
state remL,dy is available; once a prisoner has presented his claim to the
highcst state cou-rt on direct appeal, hlneed not seek colleterel ralial fren
the State. Additionallffi-Fidai v. ,toth Jrtdicial Ctrcuit Court of Ky.,
{ l0 U. S. .184 ( 1973). the Court permitted consideration of a $ 25.1 petition
seeking to force the State to afford the prisoner a speedy trial. Although
the defendant had not 1'et been conlicted, and therefore obviously had not
utilized all available state procedures, and although he could have raised
his Sixth Amendment claim as a defense at trial. the Coun found the inter-
ests underlfing the exhaustion doctrine satisfled because the petitioner
had presented his existing constitutional claim to the state courts and be-
cause he \\'as no! attempting to aboft a state proceeding or disrupt the
Statesjudicial process. See id.. ar.l9I. Finally, in Rohertsv. LaVallee,
&-'t9 U. S. -10 (I967). t)re Courl held that an inren'ening change in the rele--]
vrnL state larr'. whtch ha<l occurred subseouent to the orisoner's e-rhaustion /
of state remerlies anrl rrhiclr suggesrefiFf-[h-8.,.," .or*. rvoul<l look fa- |
vorably on the request tbr relief, (lid not necessitate a return to strte coun. /

I

other Courts o!l@ mar:eyierr:
the erhau.sted claims of a m!5ed-petilio.ru-isthe ploper int_ej-
prititi6n ofttra r1-atute. dThis ba.i. issue, i-flrmtv agree

Ao nofdi6F'uitthe value of comlty rvTren it is applicable
and prodl.rctive of harmony betrveen state and federal couns,
nor do I deny the principle of exhaustion that 992254(b) and
(c) so elearly embrace. What troubles me is that the "tdtal
exhaustion" rule. now adopted by this Court, can be read into
the statute, as the Court concedes, ante, at 8, only by sheer
frrrce; that it operates as a trap for the uneducated and indi-
gent pro se prisoner-applicant; that it delays the resolution of
claims that are not fi'ivolous: and that it tends to increase,
rather than to alleviate, the caseload burdens on both state
anrl federal courts. To use the old e.xpression, the Court,s
ruling seems to me to "throw the baby out with the
bathrvater. "

Although purporting to rely on the policies upon rvhich the
exhaustion requirement is based, the Court uses that doc-
trine as "a blunderbuss to shatter the attempt at litigation of
constitutional claims without regard to the purposes that un-
derlie the doctrine and that called it into existence." Braden
v. J}tlt JudiciaL Circuit Couri of Ky.,4L0 U. S. 484, 490
(1973). Those purposes do not require the result the Court
reaches; in fact, they support the approach taken by the
Court of Appeals in this case and call for dismissal of only the
unexhausted claims of a mixed habeas petition. Moreover,
to the extent that the Court's ruling today has any impact
rvhatsoever on the workings of {ederal habeas, it will alter, I
fear, the litigation techniques of'very few habeas petitioners.

was also contained in the first petition. but had not been pulsued in the
first habeas proceetling. The Court held that because the petitioner "had
full opponunity to offer proof in the first hearing, the lorver court should
not consider the second petition. Itl., at 2lL. The present case, rtf
course. is not controlled by Wong Doo because the respondent could not
have litigated his unexhaustetl claims in federal coun. Nonetheless, the
case provirles some guidance for the situation in tvhich a pnsoner deliber-
ately decides not to exhaust his claims in state court before filing a habeas
corpus petition.

'' Because of our disposition of this case, we do not reach the petitioner's
claims that the grounds offered by the respondent do not men! habeas
relief.

Coq{ fails to note, moreover, thal
utilize everv a

e.xhaustion rement. Although this

n



:t-2-tt2 'Ilrc lirtit?tJ st(tte.s l,AIir WI,ltlK .50 r.w 4277

a-
then spent rc,jecting the obviously meritless unexhausttd
claim, rvhich doubtless will receive littie or no attention in the
subsequent fer-leral proceeding that focuses on the substantial
e.xhausted claim. I can "conceive of no reason why the State
would wish to burden its judicial calendar with a narrow issue
the resolution of which is predetermined by established fed-
erul principles." Roberts v. LallaLlee, 369 U. S. 40, J3
( 1967).'

The second set of interests relied upon by the Court in-
volves those of federal judicial administration--ensuring that
a $2254 petition is accompanied by a complete factual record
to facilitate review and relieving the district courts of the
responsibility for determining.when e-xhausted and unex-
hausted claims are interrelated.'jJf a prisoner haS presented
a particulai challenge ln lhe stite .ourts, howevei, the ha-
beas court will have before it the complete factual record re-
lating to that claim.' And the Court's Draconian approach is
hardly necessary to relieve district courts of the obiigation to
consider exhausted grounds for reiief when the prisoner also
has advanced interrelated claims not yet reviewed by the
state courts. When the district court believes, on the facts
of the case before it, that the record is inadequate or that full
consideration of the exhausted claims is impossible, it has _a]-
wqyp_been free to dismiss the entire_heb*s pqlilr_ql pgndgg
resolution of unexhausted ciaims in the state courts. Cer-
tainly,itmakesieniii'GTarnmrTlfe-stddEGlons1o-ttrediscre-
tion of the lower federal courts, which will be familiar with
the specific factual context of eactllase*

The federal courts that have addressed the issue of inter-
relatedness have had no dfficulLy distinguishing related from
unrelated habeas claims. Mixed habeas petitions have been
dismissed in toto when "the issues before the federal court
logically depend for their relevance upon resolution of an un-
exhausted issue." Miller v. Hall, 536 F. 2d 967, 969 (CAl
1976), or when consideration of the exhaustecl claim "wouid
necessarily be affected . . ." b)' the unexhausted claim,
United Stales er rel. tllcBride v. Fay,370 F. 2d 547, 5.18
(CA2 1966). Thus, some of the factors to be considered in
determining rvhether a prisoner's g:r"ounds tbr collaterai relief
are interrelated are whelLher the claims are based on the
sameconstitutional-1.,gtGfi-Cfrglt*^rg,_qndrvhetherthey
rqqqire an underslanrtingof.lhe _totality_oI fhe_cireumstances
e4 qg!@of-t he.eqtile record.
C o m pari 7o /r,t s o n v . 

-dfr E dS t a t;{ Di'sli.i;l e ifu,rt, ffia
738. 740 (CAS 1975) (prisoney's challenge to the voluntariness
of his guilty plea intertrvined with his claims that at the time
of the plea he was mentally incompetent and rvithout effec-
tive assistance of counsel); United States ex rel. DeFlumer v.
JIanutsi,380 F. 2d 1018, 1019 (CA2 1967) (dispute regarding

'The Court fails to mention trvo related state interests relied upon by
the petitioner warden-ensuring finality of conr-ictions and avoiding the
mooting of pending state proceedings. The finality of a conviction in no
rvay depends, horvever. on a feileral court's treatment of a mixed habeas
petition. If a State is concemed with finality, it may adopt a rule directing
defendants to present all their claims at one time; a prisoner's failure to
adherc to that proeedural requirement, absent cause and prejudice, would
bar suhsequent federal habeas relief on arlditional grounds. See Wnin-
unight v..Sir/res, 43:l U. S. 72 (1977): .I/rrrclr v. ,lloltxnn, {09 U. S. {l
( l1)?ll). As long as the State permits a prisoner to continue challengrng his
conviction on alternative grounds, a federal court's (lismissal ofa mi-red ha-
beas petition rvill provide no particular incentive for consolidation of all po-
tential claims in a single state proceeding.

A pending state proceeding involving claims not included in the prison-
ers federal habeas petition rvill be mooted only if the federal coun grants
the applicant relief. Even in those cases, though. the state couns rnll be
saved the trouble of undenaking the useless exercise of ruling on unex-
hausted claims that are unnecessar), to the disposition of the case.

'The distnct court is free, ofcourse. to order expansion oithe record.
See 23 U. S. C. I 225{ Rule 7.

the voluntariness of the prisoney's guilty plea "'would neces-
sarily affect the consideration ofthe coerced confession claim,
because a voluntary guilty plea entered on advice of counsel
is a rvaiver of ail non-jurisdictional defects in any prior stage
of the proceedings"); United States er rel. McBritle v. Fay,
370 F. 2d. at 548; and United States ex rel. f,Iartin v.
McMann,,ll.l8 F. 2d 696, 898 (CAz 1905) (defendant's chal-
lenge to the voluntariness of hie confecsion reisted to his
ciaim that the confession was obtained in violation of his right
to the assistance of counsel and without adequate warnings),
with Miller v. HaLl,536 F. 2d, at 969 (no problem of interre-
lationship when exhausted claims involved allegations that
the police lacked probable cause to search defendant's van
and had no justification for failing to secure a search warrant,
and unexhausted claim maintained that the arresting officer
had committed perjury at the suppression hearing); and
United States er reL. Leug v. McilIantt,394 F. 2d 402,404
(cAz 1968).

The Court's interest, in efficient administration of the fed-
eral courts therefore does not require dismissal of mired ha-
beas petitions. In fact, that concern militates against the
approach taken by the Court today. In order to compiy with
the Court's ruling, a federal court now will have to review the
record in a $ 254 proceeding at least summarily in order to
deterznine whether all claims have been exhausted. In many
cases a decision on the merits will involve only negligible ad-
ditional effort. And in other cases the court may not realize
thal one of a number of claims is unexhausted until after sub-
stantial rvork has been done. If the district court must nev-
ertheless dismiss the entile petition until all grounds for re-
Iief have been exhausted, the prisoner wiil likely retunl to
federai court eventually, thereby necessitating duplicative
examination of the record and consideration of the exhausted
claims-perhaps by another district judge. See Justlcp
SrevBNs' dissenting opinion, post, at7-3. Mo-reover, whery
the $ 2254 petition does find its rvay back to federal court, thd
record on the exhausted grounds for relief malllye[ be" stale
and resolution of the merits more difficult.' 1- 

The interest of the prisoner and of society in "preserv[ing]
the writ of habeas corpus as a 'swifb and imperative remedy
in all cases of illegal restraint or confinement,"' Braden v.
30tlr Ju.dicial CirctLit Court of Ky.,410 U. S., at 490, is the
final policy consideration to be weighed in the balance.
Compelling the habeas petitioner to repeat his journey
through the entire state and federal legal process before re-
ceiving a ruling on his exhausted claims obviously entails sub-
stantial delay.' And if the prisoner must choose between
undergoing that delay and forfeiting unexhausted claims, see

ante, aL 11-13, society is likewise forced to sacrifice either
the swiftness of habeas or its availability to remedy all uncon-

'A related federal interest mentioned by the Court is avoiding piece-
meal litigation and encouraging a prisoner to bring all challenges to his
state court conviction in one $ 22.lil proceeding. As discussed in part II,
irr/io, however, the Court's approach cannot promote that interest because
Congress has expressly permitted successive habeas petitions unless the
suhsequent pctitions constitute "an abuse of the writ." 28 U. S. C. $ 2254
Rule 9(bt.

'ln [.]nited. States ex rel. lning v. Cossc/es, .148 F. 2d 711, 712 (CA2
l97l), cert. denied. .ll0 U. S. 925 (1973), and United States er rel.
DeFlurner v. .l/onarsi, 380 l'. 2d 1018, l0l9 (CA2 1967), for example,
mixed habeas peritions wcre tlismissed because the exhausted and unex-
hausted cla.ims rvere interrelated. In each case, the prisoner rvas unable
to obtain a federal court judgment on the merits of his e.xhausted claims for
5'ears. See United States et rel. ln'ing v. Henderson,37l F. Supp. 1266
(SDNY 197{): L'nited States et rcI. DeFLu.mer v. )lanaLsi,4.i3 F. 2d 940
(CA2). cert. denied. .104 U. S. 9l{ (1971).

any (

ll('l:i'n
llte P'
I t,



5t) t,\\/ ,l27tB T'hc lJnitetl Srarcs l,A\v WIIEK :t-2-82
stitutional imprisonments., Dismissing only une.rhausted
grounds for habeas relief, while ruling ori'the rnerits of all un_
related exhausted claims, will diminlih neither the prompt-
nes.s nor the efficacy of-the remecly and, at the same tirie,will serve the state and federal interesis described by the
Court.T

II
. 

Thc (lourt's misguided approach appears to be premised onthe spectre of ,,the sophijticated hiigiou, prisoner intent
upon a strategy of piecemeal litigation . . . ,"ivhose aim is to
have more than one day in couit. Galtieri v. Wainwright,
582 F'. 2d 348, 369 (CAS l9Z8) (en banc) (dissenting opinion).
Even if it could be said that the Courtis vierv accurately re_
flects realit;r, its ruling today will not frustrate the perry Ma-
sons of the. prison populations. To avoid dismissai, they will
simply include only exhausted claims in each of many suc-
cessive habeas petitions. Those subsequent petitions may
be disnrissed, as Justtcp BRrurseN ob."*.., only if thlprisoner has "abused the. rwit,, by deliberately choosing, for
purposes of delay, not to include all his craims in one petition.
See posl, at 4-5 (opinion concurring in par! and dissenting inpaft). And successive habeas petiiions that meet the ,,ab"use
of the writ" standard have ahviys been subject to dismissal,
irrespective of the Court,s treaiment of mi.xed petitions to_day. The Court's ruling in this case therefore provides no
additional incentive whatsoever to conso[date all groutrds forrelief in one $ 2254 petition.

,Insteld of deterring the sophisticated habeas petitioner
u'ho understands, and wishes to circumvent, the rules of ex-
haustion, the Court,s mling will serve to trap the unwary pro
se prisoner who is not knorvredgeable about the intricaciei ofthe exhaustion doctrine and rv-hose only aim is to secure a
new trial or release from prison. He will consoiidate all con-
ceivable grounds for reiiefin an attempt to accelerate review
and minimize costs. But, under the iourt,s approach, if he
unwittingly includes in a g 2254 motion a claim not yet pre_
sented to the state courts, he risks dismissal oftne entlre pe_
tition and substantial cielay before a ruling on lhe mer.its ofhis e.xhausted claims.

'The petitioner warden insists, however, that improved judicial effi-
ciency will benefit those prisoners u'ith meritoriou. 

"1"i.. because theirpetitions will not be lost in the floorl of fivolous $ 22&l petitions. Even ifthe court's approach were to contributerto the emci*i aaministration ofjustice, the contours of the exhaustion doitrine have no relationship to the
merits of a habeas pet ltion: a prisoner with one substantial exhaustetl claimwill be forcerl to return to state court to litigate his ramatning challenges,
rvherears a petitioner with frivolous, but exhaustetl, claims will ieceive, it isto be hoped. a prompt ruling on the merits from the fer.rerar court, See
STEYENS. J., rlissenting, pdsr, at g.

'Even the Fifth and Ninth Circuits, rvhich require rlismissal of mixed
habeas petitions in the tl.pical crse, rlo not follorv itu o*ii.rn" position the
c-ourt tnkes to(lay. The Ninth circuit permits <ristric! courts to consi(rer
the exhausterl grounds in a mixed petition if the p,i.or". h". a reasonable
explanation for failing to exhaust the other claiins or if the state cou.rts
have delayed in mling on those claims. See Gortzalts rl. Storr. 546 F. 2d807, 810 (CAg 1976). The t'ifth Circuit rvill revierv the menrs of ex-
hausted claims contained in a mixed petition if the District Court has con-
sideretl those claims. See Galtiei v. V,ainmgltt,;SZ i. :a 3.1g, 3rjl_J62(CA5 1978) (en bancr.

t:ourt itself to djsmiss une.xhausterl grountls tbr rel.iet.I fear, howcver, that prisoners-who mistakeniy-g1r[ryft
rdxed pelirions mav nor be_trsrr,ed_udforinly. e pionJ,
opportunity to amend a $ 2251 petition may depenci on his
awareness of the existence of that alternatir e or on a sympa_
th.etic.district judge who informs him of the option 

"rd 
p"r_

mits the amendrnent. See Fed. Rule Ctu. giog.&Grj if
lfe prisoner-is re$rired roffi;lhE-peurror mr ffikncttsge,.t *gted .!4q!s, hL r_nar_t eyglsi%I" Ib;iffi
3-YiE-Jhus encounter suhst;ii;i eJ,y1"r^"" ht" 

-""*
plaint agai! comes to ,the district court,s attention. See
STEVENS, J., post, at &9, n. lb.

Aclopting a ruje that will afford knowledgeable prisoners
more favorable treatment is, I believe, 

"nlith"ti.ul to the
purposes of the habeas writ. Instead of requiriag a habeas
petitioner to be familiar with the nuances of the Jxhaustion
doctrine and the process of amending a complaint, I tvould
simply permit the district court t; dismiss unexhaustecl
grounds ior relef and consider exhausted claims on the
qeritsr..

III
. Although I would affirm the Court, of Appeals, ruiing that

the exhaustion doctrine requires dismissal of only theinex-
hausted claims in a mi-xed habeas petition, I u,ouid remand
the case for reconsideration of the merits of'.e*p-61-- ,il
stitqlionel -qrgrrment5. As the Court notes, the bistr.ict
Court erred in considering both exhausted and unexhausted
claimsrvhen ruling on Lundy's $2254 petition. See ante, a,t

?j. . 
Th: Court of Appeals artempted to recharacterize theDistrict Court's grant of reijef as premised on only the ex_

h.austed claims and ignored the District Court,s conclusionthat the exnausted and unexhausted claims were interre_lated. See App. 95-96.r
Even were the Court of Appeals, recharacterization accu-

rate, that cout affirmed the District Court on the ground
that reipondent's constitutional rights t"J Uu.n ,.seriously
impaired by the improper limitation of his counsel's cross-
examination of the prosecutrlx and by the prosecutorial mis-
conduct." Id., at g6. The court does not appear to have
specified rvhich allegations of prosecutorial misconduct it con-
sidcred in reaching this conciusion, and the record does not
reflect rvhether the court improperly took into account in_
stanres of purported misconduct that respondent has never
challenged in state court. See ante, at 2 n. B. ,This ambigu-
ity is of some importance because the court's general sta-te-
ment does not indicate whether the court would*have granted
habeas relief on the confrontation claim aione, or whether its
judgment is based on the combined effect of the limitation of
cross-examination and the asserted prosqcutoriai miscon{,ucl.I therefore would remand the case, directing tfraf'lfre
courts below dismiss respondent,s unexhausted claims and
examine those that have been properly presented to the state
courts in order to determine whether they 

"re 
interrelated

with th.e unexhausted grounds and, if not, *h.th"" they war_
rant collaterai relief.

Jusrrcp BneNxeru, u'ith whom Jusuce MensHell joins,
concurring in part and dissenting in part.

I join the opinion of the Court (parts I, II, III-A, III-B,

.'This Coun implies approval of the District Court,s finding ofinterrelat-
eclness, see ante, at l(). but I arn not convinced that the District Court,s
conclusion rvas compelleti. Conceivably, habeas relief couid be justified
only on the basis ofa determrnation that the cumulative impact ofihe four
alleged errors so inl'ecred the rrial as to violate respondeni,s clue process
rights' But Lundys four elaims. on rheir face, are <iistinct in terms of the
factua.l allegations and legal conclusions on rvhich they depend.



3-2-lt2 'l'ho llrtitetl ,5/arcs LA\V WliUl( .50 t.\\/ 427.)

6
anrl IV, arlr1, l;ut I rlo not join in the opinion of the plurali'.y
(l'art III-C, rur/e). I:rgree rvith the Crrurt's holding that the
exhaustion requireme-nt of 28 U. S. C. $?251(b)-(c) obliges a

tbrleral rli-.stricl court to dismiss, without consideration on the
merits, a habeas corpus petition from a state prisoner rvhen
that petition contains clainrs that have not been exhausted in
the state coults, "leaving the prisoner with the choice of re-
turrring t() state coult to e.xhaust his claims or of amending or
resubmitting the habeas petiti.on to present only exhausted
claims to the district court." Arte, at L. But I disagree
rvith the plurality's vierv. in Patt III-C, that a habeas peti-
tioner nrust "risk forfeiting consideration of his unexhaus[etl
claims in iederal court" if he "decides to proceed only r.rith his
exhausted claims and deliberately sets aside his unexhausted
claims" in the face of the district court's refusal to consider
his "mixed" petition. Ante, at 12. The issue of Rule 9(b)'s
proper application to successive petitions brought as the re-
sult of our tlecision today is nol bofore us-it was not itlnollll
the tlucstions presented by pc.titioner, nor was it brieletl anrl
argued b1' the parties. Therelirre, the issue should not be

adch'essed until u'e have a case plesenting it. In any event,
I rlisagree rvith the pluralit.,-'s proposed clisposition of the
issue. In my view, Rule 9(b) cannot be reacl to permit clis-

, missal of a subsequent petition uncler the circumstances de-
r scribed in the plurality's opinion.

I

The pluralitl' recognizes, as it must. that in enacting Rule
9(b) Congless explicitly adopt-gd the-'labusq of the ri'rit" stan-
rlard announced in falrlers v. L'rrited Slnles'\ 373 U. S. I
( 1963). Ante, at 12. T&--ie.ru.la!-ir:e histqryrof Rule 9(b) il-
lustrates the meaning of that standard. As transmitteti b1'

this Court to C-onetress, Rule 9(b) read 
-as 

follou's:

"succrsstve PeurIous. A seconcl or successive pe-

tition may be dismissed if the judge fincls that it fails to
allr.,ge nerv or different pp'ounrls for relief and the prior
rletermination \\'as on the merits g, if new and different
glounrls are alleged, the judge firids that the failure of
the petitioner to assert those glounds in a prior petition
is rrol e.r'crrsob/e." H. Rep. No. 94-1471, p. I (1976) (em-

phasis arlcled).

The interpretive gloss placed upon proposed Rultl 9(b) by
this Court's Advisorl' Committee on the Rules Governing
$ 225.1 Cases in the United States District Courts rvas that:

"With reference to a successive application assefting a

ruerv ground or one not previously decicled on the merits,
the court in Snrrders noted:

In either case, fqll consideration of the merits of the
new application can be avoiclecl only if there has

been an abuse of the utit {< 'i 'j3 and this the Govern-
ment has the burrlert t,f pleatting. :k :! *

Thus, for exaryrple, if a prisoner rleliberately lvith-
Itokls one of tu'tigrrrun,l.s lbr fecleral collateral relief
at the time of filing his tirst application. * 'k * he

mav be deemetl to have rvaived his right to a hearing
qri'i second appliEation presentint the rvithlield
gt'ound., 373 U. S., at 17-18'

Subdivision tb) [of Rule 9] has incorporated this principle
anrl rerluires that the judge find petitioner's failure to
have asserted the neru g1'ounds in the prior petition to be

inercusablei' Advisory Committee Note to Rule 9(b),
* u. s. C., p. 273 (emfihasis atltlecl).

But Congress tlid not believe that this Court's trallsmitte(l
language, and the Advisory Llomnrittee Note explaining it,
rvent far enough in protecting a state prisoner's right to gain

habeas relief. In its Report on proposetl Rule 9(b), the
House Judiciary Conrmittee stated that, in its view, "the 'not
excusable' Ianguage Iof the proposed Rule] created a nerv and

untleflned standard thttt 11uL'e a judyle too bt'otttl a tLiscretion to

disrliiss a second ot' slcce,ssiue peti.tir-tn." H. Rep. No.
94-1.171, srr2rc, al p. 5 (emphasis arlded). The Judiei4ry
Cpmmittee thus recommencled that the w'ords, "is not excus-
able," be replaced b1'the rvords, "constitutetl an abuse ot'the
\\1jt.\. Id., at 5, 8. This change, the Committee believed,
rvould bring Rule 9(b) "into conformity rvith existing larv."_
1d., at 5. It rvas in the Jucliciarl' Committee's revised/
form-employing the "abusive" stanclarcl for clismissal-that I

Rule 9(b) became latr'. \

II
It is plain that a proper consttuction of Rule 9(b) must be

consistent rvith its legislative history. This necessitt'il1' en'
tails an accurate interprctation of the Srrtrdar,s stanrlarrl, on

rvhich thc Ilule is basetl. It also rctlttires cotrsitlerlliotr of
the explanalor."- language of the Advisorl' Conrniittee, :rnd

Congtess' subsequent strengthening amenilment to the text,
of th"e Rule. Bui tne pluraliiy. entirell' rnisreacling Sutrcletsl]
embraces an interpretation of the Rule 9(b) standard that is I

manifestlf incou'ect, ancl patentlf inconsistent uith the Ad- |
visory Committee's exposition and Congress' expressed 

I

expectations. ---l
The relevant language from Scirdels, quoted by the plural-

ity, ante, at 12, is as follorvs:

"[I]f a prisoner cl-ellbgIalg-ly rvithholds one of two
grounds ior reae.aiEl]lIE-uirelief at the tiile of filing
his first application, in the hope of being gtanted trvo
hearings rather than one or for some other such reason,
he may be tleemed to have rvaivecl his right to a hearing
oB a second application plesenting the withheld gqou4-cl.

The same may be true if, as in l1'orrg Doo, the prisoner
deliberatel.v abandons one of his grouncls at the first
hearing. Nothing in the traditions of habeas corpus.lg
quires the fetleral coulls to tolerate neetlless piecemeal
---ii[[ation, or to enLertain collateral proceetlings whose
only purpose is to vex, harass, or delay." 373 U. S. 1,

18.

From this language the plurality conclucles, "Thus a prisoner
rvho decicles to proceed only rvith his exhausteil claims and

deiiberately sets aside his unexhausted claims ttls -d!S-qts-s-al
o*l;glSgquent fecleral petitions." Ante, at 13.

The plurality's conclusion simply distorts the meaning of
the quoled language. Sarrders rvas plainly concerned with "a
prisoner dLljLqrSlglu withholdtingl one of two grounds" for
relief "in the hope of being glanted tu'o hearings rather than
one or for some-other,such reason.'l Sartders also notes that

"6i*r mlght bE lnibrrecl rvhere "the prisoner tleliberatelu
abundons one of his grouncls at the first heat'ing." Finally,
Snrrrlers states that dismissal is appropriate either rvhen the
court is facetl rvith "neetlless piecemeal litigation" or rvith
"collateral proceedings tt'ltose ottlry pttt"pose is to t'e'r, ltct'n.ss,

or delay." Thus Scrrrrlels matle it crystal clear that dismissal
flrrr "abuse of the rrrit" is rrrrlrl appropliate s'hen a pt'isotter
lvas free to include all of his claims in his first petition, but
ktrott'ingly and deiiDertrtely chose not to do so in order to get

more than "<lne bite at the apple." The plurality's interpre-
tation obviously rvould allorv dismissal in a much broader
class of cases than Sanrlers permits,

This Court is free, of course, to overrule Snrrders. But'
even that course u'oulcl not support the plurality's conclusion.
For Congrless incotltoratetl the "judge-made" .Soltiers princi'
ple into positive larv u'hen it enacted Ilule 9(b). That princi-
ple, as explained b."- the Advisory Conrmittee's Note, ot leasl



50 Lw ,1.280 Thc lJnited Stares LAW WEEK 3-2-82
"requires that the thabe4sl igllge firrrl petitioner,s failure rohave ass.er-ted_ttre nffi?1iTn the p.i,o-p.iirion to be iri-e.r'ez.so61e.'\ Indeerl, Congress u,ent 

'be1,oncl -ih" 
Adui.o.,

Committee's- langrage. believing rt 
"t't-i,u' 

;;il;;l;';
standard made the dismissal of.su-ccessive puiition. too easy.Congress instead requirecl the habeas'.,,,i"t to find asuccessive. pg i-EgheJ&L.,abusive" before the drasticremed]' ol rlrsmissal coukl be emlllol.edo That is horv Con-gress understood the Sorrtiers principle,"ancl ihe plurality issimply 

1ot.fre9 to ignore that'unde;stanaing,-Uecause it isnow embeddecl in the statutory language of frule 9(b).

q.uent incorporation of the higher, ,,abusive,, standard intothe.Rule. The plurality,s conciusion, in ;;;;;, has no sup_

111| yllTl:r from any of these sources. Nor, of course,
ooes tt have the support of a majority of the Court.*

*,rusrlcE WHITE rejects the plurality's conclusion in parl III-C, ante,
see p. l, posl, as does Justtce Bl,rcx.rtux, see pp. g_9, poo-t. JusrIcE
Sruvr:Ns does not reach this issue.

. 
rAt.trial, the prosecutor questioned the eyewitness conceraing ,.difficul-

ties" that her sistcr had encountered s.hile riating the respondt,nt. ln re-
sponse to an objection to the materialitl.of the inquin,, the prosecutor es_plainerl' in the presence of the jury, that "r wouitr ttrint< tne defenrlant,s
!'iolent neture \r'ould be material to this case in the light ofwhat the victim
has testified to." .{pp. l?. The trial court excuserlihe;ury to determine
the admissibility of the evidence: it rule<l that the collateral inquiry rvas"too far removed to be material antl relevant.,' App. 22. Aftei the jury
had returned. the court instructed it to tlisregard the p.osecuio"ls
remarks.

. 
Ilespondent objected to the prosecutor,s statement on direct appeal.

After reciting the challenged events, the Tennessee Court of Criminai ep-
peals recognizetl that .,State,s counsel macle.orn. .urrrka in the presence
of the jury that.u'ere overll. zealous in support of this incompetent tine ofproof, and in a different case coulcl constitute prejudicial error.,, Lr,rrdy v.Slale,.l2lS.lV.2rl J9l.i9J(197.1). Thecounmled,horrerer,ttrat,,initrEl
context of the undisputed facts of this case rve hold any error io i,".." U"., Ihermless beyond a reasonable rloubt." /bid. '- - ---"-]

Jusrlce Wgnu. concurring in paft and clissenting in part.
I agree with most of Jusucr BRrxteN,s opinion; but likeJusricn BLACKMUN, I would not require , .mi.*.,i,, petition

to be dismissed in its entirety, u,ith leave to resubmit the ex-hausted claims. The triaj judge cannot rule on the unex_
hausted issues ancl shoukl cliimiss them. nuf f,. shoulcl rule
on the exhausted claims unless they are intertwined rvith
those he must dismiss or unless the habeas putiiioner prefers
to have his entire petition dismissecl. ln 

"ny 
.rlntl'rh[judge rules on those issues that are ripe 

""J 
.ii.ri.r", ti"r[

that are not, I iyoulri not ta.x the petitioner wil;il; ;'Iiiwrit if he returns with the latteri claims afler seeking staLe
rt'licf.

Jusrrcr SrBveNs, dissenting.

. I*,.,9".,u raises important questions about the authority oftecteraljudges. In ml.opinion the districtjudge properly ex_
ercised his statutory duty to consider the meriis of the claims
advanced by respondent that previously had been rejected bythe Tennessee courts. The district judge e.xceeded, how_
ever, what I regard as proper restraints dn the scope of col-
lateral reyiew of state court juclgments. Ironicalll,, instead
ofcorrecting his error, the Cout toclay fashions a new rule oflaw that _wili merely clelay the final iisposition of this case
and,, as Justlcs Btecxuux demonstrates, impose unnec-
es.sary burdens on both state ancl federal iuclees...\n 

adequate e.xplanation of m1, disappr.li.ri br ilr. Court,s
adventure in unnecessary larvmaking'requires some refer_
ence to the facts of this case and to my-conception of theproper role of the writ of habeas corpus in the a<.rministration
of justice in the United States.

I
Respondent was convictecl in state court of rape and acrime against nature. The testimony of the victim u,as

cortoborated by another eyewitness rvho was present duringthe entire.^sadistic episocle. The eviclence of guitt is not
tf.rA.mfn

emouonal, controvefted. adversaiy proceedings, trial errororyL.I".0 
9f those.enors-a iemark Uy tfrelrosecu-

tor' and a limitation on defense counsel's crois-e.xamination

\ar,

J
Ii

{

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i
i

I

I
I

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t.i
I

:rtr
I

'l

:I

U

III
The_plurality,s attempt to apply its inlerpretation of Sand-ers only reinforces my concluiibn that the pluralitl. has mis_read thaL caser The .pluralit.v hypothesizes a prisoner whopresents a "mi.xed" habeas petition that is dismissecr without

any examination of its claims on the nretits, antl w,ho, alterhis exhausterl clainrs ar.e rejecterl, pr".ent, a second petition
containingthe previousll, unexhausied claims. The piurality
!h3n 9Or.1t9..the position of such a p.isoner:-ruith that of the"abusive' habeas petitioner cliscusierl in the Soride,* p".-sage.. But in my vierv, the position of the plurality,s hffi-thetical pdsoner is obviousl_r. ver1, Aiffer:ent.'' If the habeascourt refuses to entertain a ,,mixerl,' petition_as it mustundeL t!e. oluralit.v's view_then the prisoner,s ,,abanclon-
ment" of his unexhausted claims cannot in any meaningful
sense be termed ,,deliberate," 

as that term was used in Snild-ers. There can be no .,abandonment,' 
rvhen the prisoner is

rtot pen_nitted to pt'oceed with his unexhaustecl ciaims. If heis t9 galn "speed."- federal relief on his claimii_to which he isentitled. as the Court recognizes u.ith its citation to gra.a-ei-,
ante, at ll-I2-then the prisoner lrrrsl proceed orrly with his
exhausted claims. Thus the prisoner i,-r .rch a case cannot
be said to possess a .,purpose to vex, harass, or clelay,,, nor
any "hope of being granted two hearings rather than one.,,
.. Moreover, the plurality's suggested ireatment of its hypo-
thetical prisoner flatll.contrariicis the nute giUl standarci asexplained by the Aclvisory Committe e, and, a fofiion contra_dicts that standarcl as strengthened anci extenclecl by Con-gres:. After the prisoner's first, ,.mixed,' petition has been
mandatorily dismissed rvithout an.r- scrutiny, after hls ex-
hausted claims have been rejectecl, and afterie has then pre-
Sgnted. 

his previously unexhauste<l clairns in a second peti-tion, there is simply no u.a.v in rvhich a habeas court coulil
"find petitioner's failure to have assertecl the new grounds inthe prior petition Lobe inetcusable." On the.ont."ry, peti_
tioner's failure to have assertecl the ,.nerv,i, prevlousty'unex_
hausted claims in the prior petition couta Jnty be founcl to
have been 

;e.qtrired bu the hibeas cotLrt iti:selj,'as a condition
for its considerat.ion of the e.xhaustetl claims. If the plurali-
t"v's interpretation of Rule 9tb) cannot satisfl, the Advisory
Committee's ,,inexcusable" stel(lar(l. then ii"fatts even fur-th,er sho.rt of the higher, ,,fuusive" .tan,irr.cl eventually
adoptecl by Congr.ess.

IV
I conclude that tvhen a prisoner's original, ,,mi.retl,,habeas

petition is disnrissed *'ithout an;' exarnination of its craims onthe mer.its, anrl u.hen the prisoner. 1"t",. b,ing.-a seconcl peti_
tion. based on the previousll, une.rhausterl ?t,ri*, that haclearlier been refuserl a hearing, then the ,or",li. of tlismissal
for "abuse of the rvrit" canuui be en-rplo1.",i against that sec-
ond petition, absent unusual factual clrcrmstin.es truly sug_
gesting abuse. This conclusion is to my mind ines."p"Uiy
compelled not only by S-arrders, but also by the Advisory
Committee explanation of the Rule, and by irrngress, subse-

f



:t-2,l2..--_- 'flrc llnitotl .Starcs LA$i/ WEIiK 50 LW 4,281

A
of the victim'-were recognized by the Tennessee Court of

C ri mi n a I A p p e a I s, b t{-hgl,l lS-b€--baglqle sl ia- !!e--c 9 p! e 1!.,.o-1

the entire case. - Because the state appellate court consid-.::'-
&l7_dftjected these two etrors as a basis for setting aside

his conviction, respondent has exhausted his state remedies
with respect to lhese two claims.

In his application in federal court for a writ of habeas cor-
pus, respondent alleged that these trial erors violated his

constitutional rights to confront the rvitnesses against him

and to obtain a fair trial. In his petition, respondent also al-

leged thaL lhe prosecutor had impermissibly commented on

his failure to testify' and that the triai judge had improperly
instructed the jury lhat "every u'itness is presumed to swear
the truth."' Because these trvo additional claims had not
been presented to the Tennessee Court of Criminal-Appeals,
the federal district judge concluded that he could "not con-

sider them in the constitutional framer,r'ork." App. 88. He
adrled. however, that "in assessing the atmosphere of the

cause taken as a whole these ilems 4gy-bg 1'-efetled !o
eollaterally."'
Jnlonsiiiering the significance of respondent's two ex-

hausted claims, the District Court thus evaluated them in the

conte.\t of the entire trial record. That is precisely what the

Tennessee Court of Criminal Appeals did in arriving at ils
conclusion that these claims, identified as el1'or' rvere not suf-

ficiently prejudicial to justify reversing the convictiort and or-
<lering a retrial.^ In 991;1d91ng lvhet!91 lhe etror in these

I Defense counsel cross-e-raminetl the victim concerning her prior sexual

activitl'. W'tren the victim responrled that she coukl not remember certain

activit!', counsel attempted to question her conceming statements that she

apparr,ntlv hgLJnarle in rn earliar inrera-isw lvith defense counsel' The

. pr,',*.rt,,, otricsted [o this gue-iuoning-q1 the 1gq1p,t! that, during.the in-

i"itiuu', rlefense counsel ha<l onllllilglosed that he rvas a larvver involvetl

';t;t;;*';;;rt; 
*i t ;il the vict im that lte rvas counsel for-rhirle^teiirLl

ant. The trial iourt iustaine<L the-oblecuoo- The court permitte(l de-

fense counsel to continue to question the victim concerning her prior sexual

activity, but refused to permit him to refer to his earlier conversation with

the victini. Aop. 13. r
i)n appeal. t".pon,llnt objecterl to the trial court's ruling, and also

claimetl ihat the prosecutor had prejurliced him by suggesting, before the
jur)', that tlefense counsel hatl acterlunerhicall)'in not speciticaliy identif)'-
i1g his involvement in the caser The state appellate court rejected re-
il)on(lent's clailns. stating:

"We note that the trial jutlge pemitted cross'examination upon the

same subject matter. but simply nrled out predicating the cross-examina-

tion questions upon the prior questions and answers. From the tender of
proof in the record we do not believe that defendant was prejudiced by

what u'e rteem to have been too restrictiYe a ruling. Defense counsel was

under no positive duty to affirmatively itlentify his role in the upcoming

case before questioning a witness. He apparently made no misrepresenta'

tion. anrl was apparently seeking the truth. State's counsel u'as unduly

critical of ricfense counsel in indicating before the jury that State's counsel

shoukl have been present at'the inten'iew' etc-'.hrlt'rvb holal this'erroi'to
be harmless in the context of this case.'l ;t21 S.W.2d, at 596.
' '[n his.closing argument, the prosecutor stated:

"The only story we've heard about what happened from about 8:15 of the

night of illarch ltith until abouffour o'clock in the nrorning of trIarch lTth

came from the State's uitnesses." .{pp. 37.

''[he ju,lgt instnlcted the jury:

"Thr:.iurrrrs :rre thr: exclusive jrrrlges of the facts an<l the crr:tlillility oi the

\t itnr,sses. \'ou are.iurlges of the larv urrrlcr the rlirecti'rn ol thc court lf
there are cotrtlicts in the evirlence' \'ou rnust reconcile them. if )'ou can'

I rvithrrut hrstih, or rashly cunclurling that an1'l'itness has srvorn falsel;', for

!:r'er1' rvitness is presumed to s\r'ear the truth." App. 31.

'The court stated in full:

"Since grounrls three antl four have not been presented to the state court

there has been no exhaustion of reme<lies as to these trvo' Thus this court

Mll not consirler them in the constitutional frametrork. Hosever, in as'

sessing the atmosphere of the cause taken as a whole these items may be

referred to collaterallv." App. 88.

'The appellate court found the prosecutor's improper remark to have

been hatmies-" "in the context of the untlisputed facts of this case"l the limi-

two exhausted claims was--sufficient to justify a. gtaltt-o-{ h3-

b. 
^.-. "pu!-ief 

i ef -t h 
"- 

I. d,.f qll 
-c 

o u rt- I i k e- [ h e s t a t e Co'rirt-
fia 

" 
,lrt, t" ioot it the context in rvhich ihe error occriiied

tii cletermine rvhetlier it was eith'eir aggravatedoi mitigatrid

[ot-hg-q aspec[s otfE'e-'piQe-a-eding.' The state court and the
federal court formed differing judgments based on that broad
revierv. I happen to share the appraisal of the state court on

the merits, but I believe that the procedure follorved by the
federal court was entirely correct.

The Court holds, however, that the District Court commit-

ted two proceduml errors. "Unquestionably," according to

the Court, it rvas wrong for the District Court to consider the
portions of the trial record described in the unexhausted

claims in evaluating those claims that had been exhausted'

Ante at 10. More fundamentally, according to the Court, it
was \!'rong for the District Court even to consider the merits

of the e;rlrorrsled claims because the prisoner had included un-

exhausted claims in his pleadings. Both of the Court's hold-

ings are unsatisfactory for lhe same basic reason: the Court

assumes that lhe character of all claims alleged in habeas cor-

pus petitions is the same. Under the Court's analysis, ony

unexhausted claim assertecl in a habeas corpus petition-no
matter how frivolous-is sufficient to command the district
juclge to postpone relief on a meritorious exhausted claim, no

matler horv obvious and outrageous the constitutional viola-

tion may be.

In my opinion claims of constitutional eror are not frrngi
ble. flhere are at least ft-,ur types'' Vhe one most ffequently
encouilterecl is a claim that attaches a constitutional label to a

set of facts that cloes not clisclose a violation of any constitu'
tional right. In my opinion, each of the four claims assened

in this case falls in that category. The second class inciudes

constitutional violations that are not of sufficient import in a
particular case to justify reversal even on direct appeal,

when the evicience is still fresh and a tair retrial could be

promptly conducted. CltcLpntan v. Cali|onia, 386 U' S. 18,

22: Hcntington v. Cqli.for-n in, 395 U. S. 250, 25'1. A third
category inclucles errors that are impoltant enough to re-
quire reversal on tlirect appeal but tlo not reveal the kind of
fundamental unfairness to the accused that will support a col-

Iateral attack on a final judgment. See e. g', Stone v' Pou'
eLt,428 U. S. {65.' f@des those er-

--._--tation of cross-examination harmless "in the context of this case." See nn'

1,2. sirpro.

"'Each case must be scrutinized on its particular facts to determine

rvhetEIE-IEifEiiir isfieffilEil-eriof br preJd(rct'$E'lo'?'wlfE'rviswEtt in

the light of the trial record as a rvhole. qtiJfgggl-g3g isolated incident
viewel bv rtself constitutes reversihle- -tlao!." cTiieri-Stotes-}.
C,r,iittd. m Tl:d-iuoz, tir;s rCnt tg;ol. Cf. L'rrited stol?8 v

Socory-I'ocirrtrt Oil Co ,310 U. S. 150, Zl0 ("Ofcourse, appeals to passion

and pr.ejutlice may so poison the mintls ofjurors even in a strong case that

an accused may be cleprivetl of a iair trial. But each case necessarily turns

on its orvn facts. And u'here, as here, the recor<l convinces us that these

stalernents rvere minor aberr:ttions in a prolonged trial and not cumulative

rvirlc,nce of a pr,rct'trling rkrrnin;rtetl by passion anrl prejudice, reversal

l'ould not l)r'omote the tntls ot justice.").
'In my opinion a clainl generally belongs in this category if the purpose

and signilicance of the constltutionel rule is such that the Court enforces it
prospectively but not retroactively, cf. Linklelter v. Walker,38l U' S'

6tS,'or if thc' probable significance of the claim is belied by the fact that

otheruise compctent defense counsel did not raise a timely objection, cf'

EsteLLe v. lriilionrs, .l?5 U. S. 501, 508 n. 3: lVoiriurrghl v. Sykes, 433

U. S. ?2. 9i97 (STEvENS, J.' concurring)'
I recognize the apparent incongnritl- in suggesting that there is a class of

constitutional error-not constitulionally harmless-that does not render a

criminal proceerling fundamentally unfair. It may be argued' with consid'

erable force, that a rule ofprocetlure that is not necessary to ensure funda-

mental fairness is not wonhy of constitutional status. The fact that such a

category of constitutional error exists, however, is demonstrated by the ju-

-l



I1l t,w 42t12 'l'|rc llnited Srrrrr,.c t,AW WEI|K :l-2-1t2

rors that are so fu

not frozen in time. But the kind oii6f ttiii'iatts in this
category is best illustrated by recalling the classic grounds
for the issuance of a writ of habeas corllus-that the proceed_
ing u'as clominaterl by mob violence;, that the prosecutor
ll

fP;;-mei th;ion-
viction rvas based on a confession extorted the defend-

_ the valiql4y :rf
t itsell or the i of the process

This eategory canriot
be defined precisely; concepts of ,,fundamental fairnlss,, are

the. state and federal judicial systems has been completed is
t('uly outrageous. The unnecessary delay will make i! more
difficult for the prosecutor to obtain a conviction on retrial if
respondent is in fact guilty; if he is innocent, requiring him to
languish in jail beeause he made a pleading error is calious
indeed.

There alq some- situations in rvhich a district iudee should
.g @s'tep a $iioi,&G' *tiai';iiffi ;.,
claims have been exhausted. If the unexhausted claim ap_
pears to involve error of the most serious kind and if it is rea_
sonably clear that the exhausted claims do not, addressing
the merits of the exhausted claims will merely delay the ulti'_
mate disposition of the case. Or if an evidentiary irearing is
necessary to decide the merits of both the exhausted and un_
exhausted claims, a procedure that enables all fact questions
to be resolved in the same hearing should be follorvecl. I
therefore would allow district judges to e.xercise diseretjon to
tletermine u'hether the presencc of an une.rhaustetl claim in a
habeas col?us application makes it inappropriate to consicler
the merits of a properly pleaded exhausted claim. The in-
flqxible, mechanical rule the Court adopts today arbiir:arily
denies district judges the kind of authority they need to acl_
minister their calendari e-ilbLtfvely. i.

II
In recent years federal judges at times have lost sight of

the true oflice of the great urit of habeas corpus. It is quite
unlke the common law twit of error that enabled a higher
court to correct en'ops committed by a rrisi prztrs tribunal in
the trial of civil or criminal cases by ordering further pro-
ceedings whenever trial error rvas detected. The writ ofha-
beas corpus is a furxlarnental grarantee of libertJS-

-.;.....r'.-.:"- 

- :'- -'-'----

The ieat that federal judges have at times conatiued their
power to issue writs of 

'habias 
corpus as though it were tan-

tamount to the authority of an appeliate court considering a
direct appeal from a trial courl judgment has had two unfor-
tunate consequences. First, it has encouraged prisoners to
file an ever increasing volume of federal applications that of-
ten amount to little more than a request for further revierv of
asserted grounds for reversal thal a]ready have been ade-
quately considered and rejected on direct review. Second, it
has led this Court into the business of creating special proce-

'' I do not believe that the Court's "total exlaustion" rerluiremen! is sim-
ply a harmless rule of procedure whose prospective application will do
nothing more than require distnct judges to instruct state prisoners to re-
draft their pleadings with black magic markers. If that is the full import
of the decision today, the Court disparages federal judges: the Court im-
plies that a federaljudge will not obel.the statutory command to grant re-
Iief on only exhausted claims if an unexhausted claim lurks somervhere in
the prisoner's pleadings. More importantly, the unnecessary deiay that
the Court causes in the disposition of this case *ill not be limited to the
instant procecding; a similar outcome will follow every time an appellate
court disagrees with a district court's judgment that a petition contains
only exhausted claims. Given the ambiguitl, of many habeas corpus appli-
cations filed by pro se applicants, such differing appraisals shoultl not be
uncommon.

'"'The uniqueness of habeas corpus in the procedural armory of our lau'
cannot be too often emphasized. It differs from all other remedies in that
it is availabi,ato-brinpinroquesuio**re,.legality.ofa.persons restraint anrl
to require justification for such detentlon. Of course this does not mean
that prison doors mav rcadily be oponed. lt does mean that explanation
may bo exacted why thel'should renrain closed. It is not thc boasting of
empty rhetoric that has treated the rrrit ofhabeas corpus as the basic safe-
guard of freedom in the Anglo-Amencan worki. .The grear rvrit of itobeas
corpts hlu been for centuries esteemed the best and only sufficient clefence
of personal freetlom.' .\Ir. Chief Justice Chase. rvnting tor the (.oun, in
E.r puie Yergcr,S fvall. 8i, 95. lts history and runction in our legal s1-s-
tem and the unavailabilitl'ofthe rvrit in totalitarian srrcietics are naturally
enough legartle<l as one of thc tlecisivell ditferentiating factors botu.een
our rlernocracv antl totalitarian gorernments." Btou,tt v..-li,lerr, B{.{ U. S.
{'13. 512 (Opinion of f'rankfurter, J. ).

ant by brutal methor.ls.,' Errors of this kind jusl_ifv colplgral
1e!Ef_n_o_aq!ter how t""g.; judg.'gerl! r a T;;1,,
a-nd.even thoug.h thgy may not have been preserved properly
iir the orieinal trial.'3+.--

In this case, I think it is clear that neither the exhausted
claims nor the unexhausted claims describe any error clemon-
strating that respondent's trial rvas fundamentally unfair.
Since his larvyer found insufficient nrerit in the tivo unex-
hausted claims to object to the enor at trial or to raise the
claims on direct appeal,r, I would expc,ct that the Tennessee
courts will consider them to have been rvaived as a matter of
state law; thereafter, under the teaching of cases such as
Wainu,right v. Sykes,433 U. S. 72, they undoubtedly will not
support federal relief. This case is thus destined to return to
the federal District Court and the Court of Appeals where, it
is safe to predict, those courts will once again come to the
conclusion that the writ should issue. The adciitional proce-
dure that the Court requires before considering the merits
will be totally unproductive.

If my appraisal of respondent,s exhausted claims is incor-
rect-if the trial actually was fundamentally unfair to the re-
spondent-postponing relief until another round of review in

risprudence of this Court conceming the retroactive application of nes.ly
recognized constitutional rights. See, e. 9., Linkletter v. Watker, Bgl
U. S.618 (exclusionary rule of .l/app v. Ohio, g67 U. S. 648, not to be ap-
plied retroactivel_v\: Tehan v. .S/rott, 882 U. S. 406 (rule of GriJ-fin v. Caii-
fornia, N0 U. S. 609. forbidding adverse comment on the defendant,s fail-
ure to testify); Johnson v. lieta Jersey, 3&l U. S. ?lg (guidelines for
custodial interrogation established in Escobedo v. /llirrois, 3?g U. S. 17g,
a;nd, Mirandav. Anzona,38{ U. S.436): Stololl v. Denno. Agg U. S. 993
(rules requiring presence of counsel at pre-trial identification procedures);
DeSlefan.o v. lYoods, 392 U. S. 631 (right to trial byjurl.in serious criminal
cases and serious criminal contempts); llichigan v. payne,4f2 U. S. 4Z
(rule of.Vod/r Carolina v. Pearce, BgS U. S. ?11, requiring objective evi-
dence on the record to justify greater sentence imposed aftei successful ap-
peal). In ruling that a constitutional principle is not to be applied retroac-
tivell', the Court implicitly suggests that the right is not necessary to
ensure the integrity of the underlying judgment; the Court cenainly would
not allou' claims of such magnitude to remain unremedied.

It is possible that each of these decisions involves a general constitu-
tional pnnciple that-although not necessary to ensure fundamenta.l fair-
ness at trial-is t1'pically vindicated through trial remeclies. See, e. 9.,
Linkletler v. ll'allier, slpro, 3t 63g: Tehan v. .S/roft. si{pra, at 4li; but see
Slola// v. Dento, urpm. et 2g8: DeSte.farro v. l/oods, srrpro, at 6B8.
l4Tratever the correct explanation of thes-e rlecistons may be, they demon-
sfiate that the Court's constitutional jurilprudence has expanded beyond
the concept of ensuring fundamental fairness to the accused. ilIy point
here is simply that this expansion need not, and shoultl not, be applierl to
collateral attacks on linal judgnrents.

)l,xtre v. Dentpscy,26l U. S. 8ri.(())l,nnt4 v. Holohan, Zg.l U. S. t03.

"See Bmml v. .Uississrppi, 297 U. S. 2?8 (direct appeal).
''See, e. 9., Delleerleer v. llichigan,3Zg U. S. 6t)i); )Iuino v. Regan,

332 U. S. 561.

'rSee IVairronght v. Syke.s,433 U. S. 22,95-96. n.3 (STEVENS, J.. con-
curring). Justice Black noted in his opinion for the Coun in Chapman v.
California,386 U. S. 18, 23. that "there are some consritutional rights so
basic to a fair trial that their infraction can never be treate<l as harmless
error." In support of this statement he cited Paune v..-lrkarr.s<rs, 35(.i
Ll. S. l'rti0 (coerced confession): Gitleon v. 11'uinrriuht, Bi2 U. S. 3Bi (right
to counsel at trial): Tuntey v. Ohio,27l U. S. Sl0 (impartial judge).

'' See App. 27, 35-38, 75, 88.

@



T'hc lJnirul stntr,.s LAW WliliK 5{) t,w 42113:i-2.1r2

n

rlural rules for dealing with this fioocl of litigation. The d'-'c-

trine of non-retroactivity, the emerging "cause and preju-

riice" doctrine, and today's "total e.xhaustion" rule are

examples of judicial lawmaking that might well have been

avoidert by confining the availability of habeas corpus reiief to
cases that truly involve fundamental unfairness.

When that high standard is met, there shoulcl be no ques-

tion about the retroactivity of the constitutional rule being

enforeed. Nor do I believe there is any need to fashion defi-

nitions of "cause" and "prejudice" to determine whether an

error that rvas not preserved at tnal or on direct appeal is

subject to review in a collateral federal proceecling." The

Yavailability of habeas corpus relief should depend primarily

I on the chiracter of the alleged constitutional violation and

lgt on the procedural history underlying the claim'''

"The failure of otheruise competent defense counsel to raise an

objection at trial is often a reliable indication that the defendant was not

denierl funtlamental fairness in the stale court proceeclings' The person

best qualified to recognize such error is normally a defendant's o*n larvyer'

Tlus, in searching for fundamental unfairness in a tt'iai record. I attach

great irnportance io the character of the objection. if any, asserted by the

Jefendant's counsel. But if such error is manit'est' I rvould not '*'restle
uith terms such as "cause" and "prejudice" to determine whether habeas

eorpus relief should be granted. Thus. in Wainuight v' Sylles,433 U' S'

72, 94, I urote separately because a straightfonvard anall'sis of the record

revealetl the lack of merit in the pnsoner's claim. Had the record clis-

closed an error sufficientll' serious to justi$' habeas corpus relief, I rvould

not have joined a hokling that an error oi that character had been rvaived

b",- a procetlural rlefault. As I pointed out in 1l'oirrloirT/rt, srcpro, ar 95,

"i'"n "n "r.pa".. 
rvaiver by the defendant ma1' be excused if the constitu-

tional issue is sufficientll' grave. That actualll' r'as the case in Iay v'

.\oro. 3?2 U. S. 391. There the Court held that habeas corpus relief was

available notlrithstanding the client's panicipation in the waiver tlecision'

and notrnthstanding the fact that the decision was made on a tactical basis.

See {33 U. S., at 95 n. 3.

''It may be argued that limiting habeas corpus relief to claims involring

the funtlzrmentallairness of the underlying proceeding is no less "lawmak-

ing" than engrafting a rule that a federal court may not entertain a habeas

corpus application containing both exhausted and unexhausted claims'

S"e Strre'r. PorL:ell, supm, al 5?2,'o29 (BRENNAN, J', dissenting)' It is
interesting to note. houjever, that the Court unanimously has held that an

error of lalv does noi nrovide q hqqiqfor collateral attack on a federal judq-

,"6i;;d; zs U. s. b. $ zs5lunless:hesrzor-c.oret{ule4 "a tundamental

J ai.t=;m;r;-i;m.. "-tilffi GIJI*ds:e-. rar
Lirrtrl<] Siates v. Timnireck,44l U. S' 780, 783 (quoting Hill v' United

Sloles, 368 U. S. ,12{, 428); see alsoUnited Sloles v' Add'ottizio,4'12 U' S'

178, 185: even though the statute authorizes a federal prisoner to petition

for relief whenever ire is "in custody under sentence ' ' ' imposed in viola-

tion of the Constitution or laras of the United States' ' '" 28 U' S' C'

$2255 (emphasis added)' See Dot'is v. I|nited States, 4L7 U' S' 333'

3.13-344.

Althoughthetlvosituationsarenotidentical'Ibelievethatthereasons
that persuaded the Court to limit errors of law cognizable under 28

U. S. C. $ 2255 also apply to constitutional errors under 28 U' S' C' $ 2254'

Section22S4wasenactedinlg48aspartoftherevisionandrecodification
of Titte 28 of the Uniteri States Code. The Revise/s Notes conceraing

$ 2254 provide simply that "[t]his new section is deciaratory of existing law

as afflrmed by the Supreme Court. (See Er parle Hawk,1944' 64 S' Ct'

{{8.321 U. S. llil,88 L. Ed1572.)." H.R. Rep. No.3214, 80th Cong ' lst
Sess. Al80 (1947). In 1948, constitutional rules of procedure were rcla'

tivelv few, those that did exist generally were not applicable to the States'

an,l ihe scope of habeas corpus relief was nalrow. As late as the decision

in Palko v. Conttecticitl, 302 U. S. 319' 328, constitutiond claims appli
cable to the Slates were limited to those hardships "so acute and shocl<rng

The "total e.\haustion" rule the Court crafts today demeans

the high office of the great writ. Perhaps a rule of this kind
would be an appropriate response to a flood of litigation re-
questing review of minor disputes' An assumption that
most of these petitions are groundless might be thought to
justify technical pleading requirements that rvould provide a

mechanism for reducing the sheer number of cases in rvhich

tlie merits must be considered' But the Court's experience

has taught us not only that most of these petitions lack merit,
but also that there are cases in u'hich serious injustice must
be corrected by the issuance ofthe \!'rit.r'g In such cases, the

statuiory requirement that adequate state remedies be ex-

hausted must, of coul'se, be honored. When a person's lib-
erty is at stake, horvever, there surely is no justification for
the creation of needless procedural hurdles.4

Procedural regUla.nty is a matter of fundamental impor-

tarf,-e in the aclministiatiqu'of jgstice' But procedural dicb-

tiei tnai merely complicate and delay the resolution of dis-

putes are another matter. In my opinion the t'ederal habeas

.orpr. statute should be construed to prolect lhe fornrer and,

whenever possible. to avoid the latter.
I respectfuily dissent'

JOHN C. ZtMI\'l11RMAN, Assistant Attorncy Gcneral of Tcnnesscc, Nltslt-
,iff.'fcnn tWtt-l-lAM A. LtlLCtl, JR, Attorncy Cencral, with him on thc

b;i;b' f- 'p"tition"r; D. SIlANNON SMITil, Cincinirati, Ohio for

rcspondcnt.

that our politl' rvill not endure it"; to those "fundamental principles of liir
erty andjustice uhich lie at the base ofall our civil anrl politicai instttu'

tions." ibid. fquoting Hebert v. Lorrislono, :72 U' S 312' 316) ln

Schechtnnnv. Foster.l72 F. 2d 339, 311 (CA2 19'19)' cetl. (let" 339 U' S'

9:24. Judge Learned Hand \Yro"e for the coLtrt, in affi'rmins a deniai of a

habea.s corpus petition alleging intentional use ofperlttred testimon)', that

"[i]f the [state] judge who denied that [claim] did in fact consider the evi'

dtn"u 
""-a 

wtroll, and ifhe decidecl that it was not' even prima facie, suffi-

cient to make out a case of deliberate presentation by the prosecution of

perjuretl testimony, lpetitioner] rvas accorded the full measure of his con'

.titrtion"l rights. . . .' tfln" District Court could not properly have issued

the writ, no -"tt"" horv erroneous the juclge had thought the state judge's

conclusion lhat the eviclence did not make out a pnma facie case ofthe de-

Iiberate use of pedured testimony."
This Court has long since rejected these restrictive norions of the con-

siitutional protectiorii that are available to state cnminal defendants.

Nevertheless, the point remains that the law today is very different from

what it was when the curren[ habeas corpus statute *'as enacted in 1948'

That statute was amended in 1966, but the amendments merely added to'

and dkl not modify, the existing statutory language' Bespected scholars

may argue forcefully to the contrar.v, but in my opinion a limitation of ha-

bea" co"pus relief to instances of fundamental unfairness is consistent u'ith

the intent of the Congress that enacted $ 2254 in 1948'

''"The meritonoua ai"iaa are ferv, but our procedures must ensure that

those ferv claims are not stilled by undiscriminating generaiities' The

complexities of our federalism and the workrngs of a scheme of government

invoiving the interplay of two governments, one of which is subject to limi-

tations Jnforceable Uy the other, are not to be escaped by simple' rigid

ruies which, by avoiding some abuses' generate others"' Browr v' Allen'

sr.pro, at {98 (opinion of Frankfurter, J.).
i'[W]. h^u" consistently rejected inter?retations of the habeas coqrus

statute t.hat woukl sut'focate the ur.rt in stifling formalisnts or hobble its ef-

fectiveness with the nranacles of arcane and scholastic procedurai require-

nrents." illerlsley v. )Itoticipat Court, {11 U' S' 3{5, 350 Cf' )Iaino v'

Ragen,332 U. S. 561, 5ti3-570 (Rurledge, J., concuring)'



3-23-82 The United States LAW WEEK 50 LW 3763

arrest silcnce when a defendant chooses to take
thc stand. A State is cntitled, in such situations.
to leave to the judgc and jury under its own rulcs
of evidence the rcsolution of thc cxtent to which
post-arrcst silence may be dcemed to impeach a
crimin:rl defendant's own tcstimony.

The motion of rcspondent for leave to proceed
in forma paupcris is granted.

Thc petition for certiorari is granted, the judg-
ment of the Court of Appeals is reverscd, and thc
case is rcmandcd for proccedings consistcnt with
this opinion. It is so ordered.

Justice Brennan would set the case for oral
arBument.

Justice Marshall disscnts from the summary
rcversal of this casc.

8 t -tl S{lGd,crson v- Eutbr)thc mot ion of rcs grn-
dcnt for leave to procced in forma paupcris is
granted. The petition for writ of ccrtior:.rri is
denied.

Opinion of Justicc Stcvens respecting thc deni-
al oI thc pctition for writ of ccrtiorari.

Although I believc that Jackson v.. Yir8,inia,
443 U.S. J07, was decidcd inSriectly, it is not at
a'lfc-ffi?1d--ilru that the Court of Appeals in this
casc misapplied the dicta in the Court's opinion
in Jackson. The Court of Appeals did not purport
to rcsolve any conflict in the evidence. Quite
propcrly it attachcd no wcight to the fact that the
dcfcndant did not tcstify, or (o the fact that his
mother may havc tcstificd falsely in support of an
alibi dcfense. Neither of those facts is allirmativc
evidcncc of guilt.

Based on their duty to "rcview the evidence rn
the liBht most favorable to thc prosccution,"
Fuller v. Andcrson, 662 F.2d 420, 423 (CA6

J ItSl-I. a majonry'irf*rh'-rju-dgssTfftrE-court of
J Appeats concludcd-as hud the District Court

and two of five justices of the Michigan Supreme
Court-that there was insufficient evidence in
the rccord that the respondent had intended to
commit a crime. lt is quite misleading to describe
the slim record in this case as "a classic case of
conllicting evidence," post, at 2, or to imply that
thcse conscientious federal judges chose "to sit as
a jury and set aside the lawful jury's findings of
fact." Post, at 4. What the Court of Appcals did
conclude was that evidence that the respundcnt,
like several other boys. was present at the scene
of the crime was legally insulficient to permit any
rational trier of fact to find bcyond a reasonablc
doubt that r-esg).[dclrJas.4 participant in lhat
crinre. See1f,62 F.2d, at 423.) The essence of rhe
(iourt of A'IteEeils Gisron is cxpllinc'd in rhe
following fcw ptragraphs:

"The district court correctly concluded that
the evidencc introduced at petitioner's trial
only showed that on the morning of May 18

F-uller was present at the Turner residcnce
along with Zerious Meadows and the other
boys. The evidence showed that Fullcr looked
around while Meadows started the fires. But as
Judgc Feikens pointed out:

"This slggests, as Jeflrey Coleman sur-
mised, that the pctitioner may have been acting
as a lookout for Meadows. lt is reasonable
speculation. But could a rational jury find it to
bc proof beyrnd a reasonablc doubt? No evi-
dcnce was prcsentcd that the pctitioner intend-
ed to burn the Turner homc. The evidence that

i he knew that Zerious Mcadows planncd to do

| [sic] is simply too meager ro support convic-\ tion. (Emphasis in original).
"Wc note that there was no evidcnce at trial

that thc 'Molotov cocktail' which started the
fire was prcparcd in advancc, or, if it was,

whcthcr any of thc boys other than Zcrious
Meadows knew that thc 'fvlolotov cffktail' cx-
istcd. Thcre was of coursc no cvidcncc thrt any
of thc boys, exccpt Fullcr [sic], participatcd in
thc manufacturc of thc 'Molotov cocktail'.

"Morcovcr, thcre was no direct evidcnce that
the youths approachcd the Turner house with
inlent to set thc housc on fire. Assunring 7.et-
ious Meadows had this intent, however, lhcre
was no cvidcncc that it was shared by petition-
er or the other boys.

"Thc only dircct cvidcncc supporting thc
State's contcntion that Fuller'stood guard and
actcd as a lookout' for Zcrious Mcadows was
Jcficrey Coleman's tcstinrony that ovcr a peri-
od of scvcral rninutcs Fullcr turned his hcad
from side to side 'morc than twicc.' We agrce
with thc district court that lhis is insuflicicnt to
cstablish bcyond a rcasonablc doubt that lrullcr
took conscious action to aid Mcadows' cornmis-
si()n of arson." ld., at 424.

ln my judgrnent it would not bc an appropriate
usc of this Court's scarce resources to grant
ccrtiorari and rcvicw cvery record in which a
fcdral court ntakcs a conscicntious ellort to apply
the dictatcs of Jackson v. Virginia. [:or that
rcason, without rcaching the qucstion whether I
would have decided this case the same way the
Court of Appeals did had I bcen a mernber of
that court, I think this Court wisely dcnics
ccrt iora ri -

Chicf .lusticc Burqcr. with whom Justicc.,-. +-t\
U Connor Jorns, (rssmtnB.

Rcspondcnt Fullcr was convictcd of [elony
murdcr in 1970, following a fire in which two
childrcn died. Thc fire occurrcd on the nrorning
of May 18, I970. T'hc prosccutit-rn's cvidcnce
showcd that Fuller scrvcd as a lookout whilc
Mcadows sct thc firc. Fuller was l7-years-old at
the (inrc. A ncighbor tcstilicd that shc saw Fullcr,
along with a few othcr boys, standing in front of
the Turner housc on the morning of the fire. A
l4-year-old, Colernan, tcstified that hc saw Fuller
and Meadows behind thc house. Meadows was on
the back porch. As Coleman wetched, for tive or
tcn minutes, Meadows stulfcd a rag inside a
bottle, ignited the rag, and threw the bottle
against thc housc, starting a fire. Mcadows then
sct anothcr flrc. Fullcr, mean*'hile, stood by a
gatc lcading from the back yard to an alley.
Colcman testified that Fuller lookcd up and down
thc alley while Meadows was sctting thc fires.
Fuller and Meadows thcn left the yard through
the gate and ran down the allcy together. Cole-
man wcnt to the housc of a fricnd, Martin, and
reportcd thlt thc Turncr housc l'as on tirc,

'Ihc dcfensc rnoved for a directed vcrdict of
acquittal at the close of thc state's evidence. The
trial judge ruled that the evidence against Fuller
established a prima facic case and denicd the
motion.

The dcfcnsc put on one witness. Fuller's moth-
er. Shc tcstilied thut Fuller was at home asleep
until 9:00 a.m. on the morning of the fire; thcre-
fore, he could not have bccn involved in setting
thc fires. Thc dcfcnse casc was based solely on
this alibi and an attempt to discredit Coleman's
tcstimony. Defcnse counsel told thc jury that the
only rcal issue in the casc lvits rvhcthcr Fuller or
someone elsc was standing bchind the Turner
housc.

Thcre was no chrllenge to the trial judge's
instructions on reasonrrtrle doubt and the prc-
sumption of innocencc. This, then, was a classic
case of conflicting evidcncc in which the jury had
lo pass on the crcdibilitv of ihe witnesscs. Thc
jury rcturncd a vcr<lict of guilty. The vcrtlict
shows thc jury did not bclrcvc F-uller's mothcr and

acccpt his alibi dcfense. The jury obviously ac-
ccptcd as truc thc t€stinlony of Colcman and the
tcstinrony of two othcr witnesscs who said thilt
thcy saw Fuller at the sccne o0 thc morning of
thc (irc. 'l'hc trial ludge dcnrcd a rnotion for a
ncw trial, and Fuller reccived a mandatory life
scntcnce as an acccssory to murder by arsrln.
Mel<lows was convicted of first degrce murdcr in
a scparatc trial.

Fulle r appealed directly to the Michigan (.'ourt
of Appcals, which unanimously lllirnred (hc con-
viction. lt held that the evidenec was sullicient to
convict Fuller bccause, if the jury bclicvcd Cole-
rrrirn. it qtuld reasonably conclude that l:ullcr
luctcd irs ) lo<lkout for Mrad()ws. A diviricrl
Michigan Suprenre Court allirrncd. lt also notcd
lh:rt cvidcnce was prcsented, which, il'bclicvcd b1,

thc jury, showcd that I uller uctcrl as ir luokuut,
l'grrplc v. I ullcr,4;l Mich. App. 2u7 (t9i.l), atfdl']
.le5 Mich 45l (1e75). 

-lln anothcr in a scrics of cascs in which lcdcral
courts relry issucs of fact and crcdibility, thc
I )i..!tic1.-CouLfor,the l;aslsrrLDidrricu oLM ishi..
ga rt gra n t cd-- l:u I L' r's. iloplilr, t iou. tur-iL__tff1-_d
h'fibgfsCdipus undcr 2E U.S ( . ti2254. 'l hc courr
nliporr;Aio lifly ftcfso;:rVi6ffi, 1l tJS.
107 (1979). lt noted that Jackson hcld thar habe-
as rclicf could only bc granted if "no rational
tricr of fact could have found prtxrf of guilt
bcyond a rcas,rnablc doubt." ld., at 124. 'l he
[)istrict Court thcn rcvicwcd anil-r","affi.I the
cvidcncc prcscntcd at trial antl concluded thal thc
cvitlcncc which pcrsuadcd l2 jurors, who hcard
all thc evidencc and obscrved the dcnrcanor of a//
thc witncsscs, was too mcitgcr to support thc
prosccution's contention that Fuller actcd as a
Ix)k()ut. The District (-ourt rclierl hcavily on rh6'-l
llrct that no eviricnee was pruscnled to slrow ,/

l'ullcr kncw that Meadows planncd to burn thc /
Turner honre: lruller. ol coursc, did not tukc t!:J
st a nd.

A divided Court of Appeals for the Sixth Cir-
cuit allirmed. That court again reweighcd the
evidence which l2 jurors found sullicient under
instructions not questioncd. l-rke the l)istrict
Court, two of thc mcmbcrs of the panel conclud-
cd that thcrc was insulficient evidence prcscntcd
tr-r cstablish that Fuller knew Mcadows inrcnded
to comnrit arson. Fuller v. Andcrson,
_F.2d__( t98 t).

l)issenting. Judgc Weick cogently contcnded
that thc federal courts wcre impropcrly usurping
thc function of the state court ju;y. tf rhe jury
rvhich saw and heard thc witnesscs chosi rL
h,:licvc Coleman's tcstinlony, it was reasrrnable to
inlcr thai lruller actcd as a kxrkout f()r Mctduws.
1'hc jury clcarly chosc to bclicvc ('olcnran, jusi as
it shosc to disbelicvc ljuller's alibi.

Thc District Court and the Court of Appeals
incorrcctly applied Jackson. Thcre we held that
"the rclevant question is whcthcr, after viewing
the cvidence in the light most favorable io the
prosecution, any ralional trier of fact could have
found the esse nlial elements of the crime be1'ond
a rcasonable doubt." 441 U.S., at 319. lt is slreer
nonscnse to suggest that, on this record, the l2
jurors acted irrationally. With all respect, I sug-
gcst that thc District Courl and the Court of
Appcals' mljority forgot that it is the function of
thc jury to dcterminc who is telling the iruth.
Jurlgcs bctray their function whcn thcy arr()girtc
thcnrsclves over the lcgal factfindcr. I:ither wc
acccpt the jury systenr with thc risk of human
fallibiity or we ought to change the structurc of
the system and rcrlefinc thc standard of rcvicw
unricr thc hlbcas corpus slatutcs. Thc l)istrict
('ourl and thc (lourt ol Appcals did not rirw thc
cvidcnce in the light most favorable to the pros-

)
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0 I 48_8 I 3o /8 2/S00.50



50 LW 3764 The United States LAW WEEK 3-23-82

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t"

eculton, as the law and thcir oaths require. If
ll].I !id.they could.not havc ratonally concludJ
that. the jury couhJ not rcasonably reach thcresult it reached. Instead, the couris ,.*iieri;j
Colcman's,tesriony. noting thar lr. *;; )",ir;;;lhat hc had been placed in a youth house bccauii
he ran away from horne. and that he artcnded a'-specrat school," put simply _ and bluntlv. as
thrs case dcmands _ the federal judges who set

1l,j: ,l'i. srare courr judgmcnt ,.i.oIite .lrrori.not JUilsts.
This Court cannot sit oa , 

"orrt of errors tocorrcct eyery mistake by other courts. But the
oecrslon hcre warrants consideration bv rhisCourt bccausc the courts nauc misajptiea':ac'f-
son in a way that threatcns to lead to i.r.rr"t, of
state court criminal convictions whenever a fcder-
al court chooses to sit as a jury ana,"iuriO" t-t,.lawful jury's findings of fict.- Thcre was a fla-grant refusal hcre to rcvicw the cvidence in the
light mosr favorable to the prosccution, as the hw
comm;rnds. Jackson did not authorize such srossi,.rr"r5::lffil
lfrsr tc_:,-systemsA

. tqs9lillg$-gglfgiSlEqd rcversc rhe deci-sron be tow. * i r n a ppro[riaiE]EfriiiGis--i6-ou r
cttl IEIfi ueS?S Td edrra lrf 'f[filffifi.hfTi6ftifriions
cbncerning rheir rolc. Our hervy a&liit=ir-r"'
i ninnTeiarrrc"Jrdh- T6 a I I ow t f, L Jrroniow j u a g-
mcnt to stand.

8t-5908 Ziegler v. Florida. The morion for
leavc ro proceed in fornra pauperis is granted.
The petirion for wrir of cerrioraii is Oenifi. 

"'--'
Justice Brennan, dissenting.

. ..On Dcccmbcr 24, 1975, four pcrsons wereki!lcd at a furniture store owned 6y p.ii ;"".r.
Per.itioncr's wifc, hcr purents, rna rnuttia, n"rron
had becn shot to dcath, ;rnd petitioner hlrri been
shot in thc abdomcn and was seriously *,,rna.J.
T'hat night, shortly aftcr the sh,:<.rtinss', n ,i,l,,r,*
callcd the. local policc chicf, a perso-n:rl'fricntl ofpctttroncr's, and rcqucstcd immediatc :tssistancc.
.r he potice chief tcstilicd: ..lle told me rhar hchad becn shot..l said, uhat happeneJ.-H. *ia,
prcase come help me, hurry..' ln responsc ro thiscatl, police entered the storc, found petitioncr.
who.was tlecding b:rdly. and ,rrh.d h;; i;'i;;
I)ospital._The policc found four bodics, scarcheJ
ror the killer, and securcd thc building.

.. Later that night, a local detcctive arrived todircct thc investigation. Thc store 
".r'r.r*frJlgain thrt nighr and repcaredly 

"".; ah;';;;i
tv'.,tve duys. No eflort was madc to obfain awarllnt until January 6, 1976. On Dcccmbcr 26,
polcc nlade a warrantless cntry into pctitioncr.s
o.llicc. which was sepurarcd from the i*, "f,.r.lhe vtctims were found. brcaking two locks in the
ll:ccrs Thcy wcnt th:.ough pcirioncr's p.r*nri
papers, check books, and corporatc recoids, and
scizcd- several d(rcuments. tn' rcarctrine- thiou;i
onc of pctitioner's desks. policc found"an insu-.
a19e. qglicy rhar peiirioncr had rakcn out on hi,wrle s ttlc_ A second policy was seized in a search
th€.nexl day. Thc hvo po;1.1., were introduccd atrnat to support thc state.s thcory that petirioner
had a pecuniary morive for killing hir;ii;.-O;
January 2, policc searched thc storc yet again.Thcy entered a back roonr separated-from"the
area in which thc victims had Ueen founa,
scarched the inside of a closed ,torrg. 

"ubin.i.a.nd scizcd a largc amount of damagirig .r;;";;;
thar was introduced at trial.

The dctcctivc tcstificd that in conducting thcse
wrrrrantless scarchcs, hc rclicd on a,.i."tiJ
cnmc sccnc exccptitln to tltc warritnt rc<ruirc-
n)cnt. lie.spccific;rlly srirrcd rhar hc did nor'h;vc
pctrtloner's conscnt to all of thc scarchcs. Thetrial court upheld the scarches rna.. it,i.-"rirl.
):cne. 

rationale.. Although lhe Starc Suprcme
Lourt rccognizcd that a crinrc sccne exccpiion is
i15-onsillent with Minccy r,. .4,rizona. Ali U.S.It'i5 ( 1978), it neverrhcli,ss uphcltl thc ,;^r;;;:
rcasoning that the policc rvcrc at the slore at thc"rnvitarion" of peririoner. 402 So. 2d 365, 3:,2
( fila. I 98 I ).]

The decision below strctchcs lhc consent excuo-
tion to rhc warrant rcquirement U.vonO i..orri_
tlon. Particularly whcn the dclendant.s lifc ha"npsrn the balunce, couris should bc carct.ul thft
conviclions arc not based on illegally o[toin"J
evidcncc. llere, thc ctrnclusion ttLr i i"r.r.r"
I.,undcd defcnd:rnt who rcqucsls p.llicc aiA ttrti.,'_
oy conscnts to an unlimited twclvc_day scarch of
his busincss premiscs ignorcs the ,.t.r'"nt.oni.*i
ol the conscnt 

- the nced for inrmediate medical
assistance 

- and amounts to a rulc ttrrt a civ'f*
hclp. waivcs all Fourth Amcntlmcnr p;;r;"i;;."i
would set the case for plcnary argument.

Appeals-Summary Disposi(ion

8l-I356 Jones Morris. Thc judgmcnt is
allirmed.

{il-5t127 ln re Turner
tl-6073 Flucker v. Georgia

Thc appeals are dismissed for want ofjurisdiction.

Itt-6097 Richards v. l_os Angeles
8l-6106 Ivey v. Alaska

Thc appcals are dismissed for want of a sub-
stanrial fcderal <luestion.

8l-6157 Wolfson v. Murray. The appeal is dis_misscd for want of jurisdicriirn fr.rIi'nc ih. ,r_pcrs whcl-gsn the appcal was rakcn as a- oetitirrntor wnt ol ccr{orari. ccrtiorari is dcnied.

Cerliorrri 
-summrry Disposition

79-l?34 Pierce, Sec. of ll(JD v. Ross; and76-1261 Pierce, Scc. of llUD ,. nbiams 
"-

... Upon consideration of the morion to vacate
lilcd by rhc Solicitor Ceneral on March I l. i9ir-the judgnrcnrs of thc Unired Sror., i.uuri-,li
fppcals for rhe Fourth Circuir and tt," Urlt"j
Starcs Courr of Appeals for the Ninth C;.;i; ;;;
v.acatcd and the cases are remanded to Ihe United
Stnrcs l)istrict Court for the Disrricr of frf ririrrJand thc United States Disrrict (.ourt i"; ;;;
C-entral Disrricr of California, r.rp""ii".fy,' 

"lif,directions to dismiss thc causes as moot when thepartics jointly so move.

Orders ln pending Ceses

f{o.- -- Chicago Fire Fighrers lJnion, L<rcal

f o r I City of Chicago. 1t," ,ppti.uii* 
-iu

drrcct lhc ('lcrk to lilc the petition'f.,r n *r1, ,,t
ccr(iorilri is denied.

A-51? Wortlcy v. U.S. The application for bail
pcnding appcal addrcsscd to Jiritice powcll and
rcfcrrcd lo thc Court is rJcnicd.

A-7-1-l Oppcnhcim v. Moreau. The application
lor stay addressed to Justice Brcnnai'an.j ,c.
fcrrcd t,r thc Court is tlcnied.

A-764 California v. Ramos. Thc application for
st:ry prcscntcd to Justice Rehnquisi and by hrnr
rcfcrrcd lo the Court is dcnied.

80-2205 Finley, Clerk, Circuit Ct. v. Murray.
Thc motion of Chicago Lawyers' Comnrittee i6r
Civil Rights Under Law for leave to lile a brief as
anricus curiae is granted.

8l-150 No. Pipeline Constr. Co. v. Marathon
Pipe Co.; and

ttl-546 U.S. v. Marathon pipe Line Co.

The motion of Beneficial Clorporarion lor leavelo participate in r,lral argunrent'as arnicus curiacand lor addirional timc frrr oral arguntcnt istlcnicd. Thc morion of Cornmcrcial I ,iw Lcasueof Anrcrica to rcconsidcr urd", Ai,,yine niufr""
for lcavc ro participate in oral arguricii; r;;;1_
cus curiac is denied.

8l-213 
-Schweiker. Sec., t,lllS v. Hogan. Thc

rnotion of thc .Soliciror Ccneral to p"rn.rii C"uit.
)Y.. ]"Tl: Esquire. ro prcsenl nrot'rrgur.nr-p?u
nac vtcc ts granlcd.

. Adhcring to my vicw that rhe death pcnalry isrn al crrcumstances crucl and unusual ounish-
rnent prohibitcd by rhc Eighth and Foritcenth
Amcndments, Crcgg v. Cs6lgin, 42g U.S. l5l,
227, 231 (1976), .l would grlnt ccrtiorari irnj
vacate thc dcath scnlence in this case.

Jusl icc Marshlll, tjisscnting.

_ Pctitioner seeks review of rhe State Supremc
Court's decision upholding ti. ,rrae, con-r]ciio,.,-
ano oeath sentencc. Hc argues that his convicrion
:rno ocirth scntencc should be set asidc bccauscthey wcrc based in parr on evidenc" 

"U,.lr.a-i"llagrant vitrlltion of his Fourth Amcndment
rig.h.ts. l-le objccts to the Stare Srpr.rn" -ouri;,
holding that, by calling the Chief of pofice fli
assrstance, he conscntcd to a broad-ranging
twelveday search ol his furniture store. BeciuslI belicve rhat this perition raises ,.riom Foriif,
Arrrendnrcnt claims, and offcrs an opnortunitv for
this C-ourr ro clarify rhe standards i,jr.onr.it'i"
scarch under Schneckloth v. Bustrmonte, 4li
Lr.S. 2lti ( 197-1), I disscnt from the dcniaf oi
ccrt iora ri.,

. 
rPcrr alto objcct! rh.t tir rllcjcd on$nt to a *arch of hirno.mc *ar nd vollntary. Thc mrning eftcr thc crimcs. mli;aslcd to s. pctirioncr in thc hspital, t , ;;,";;i";;;fii;

bccauc of-his physical and cmorionat ondirion. i;il,;;;;";;;
comc ou.t of turgcry only !ir hour! carlicr, *". ,";"; t'h.';;;;";;;of ancrrhcsia, and hsd rcenrly bccn givcn ;ilil f- ;;;;:T;:ofliccr. draflcd ! consnr fom snd eslcd ,*l nrr*, io ol,"in
;rtitioncr'r l3naturc. Thc nurrt !*nlc p.,;,."i. 

""a'afa ii,rh.r polia edtd Iitc t4 Eirch hir t ".. ^ra 
..ril iili-ij."illrln-rhr [o,m. *hrch rlrey ,.rd ro hi6 nj,rr*ii ifJ "r.riitcllll.d thtrt.hc *t ohcrrnr *hcn h. ritncd ,fr. i""r., 

",,ii""i,
sr!tcd hc h!d no rc(Dll..tion of rigning.

_..1.. . I.:ul, of tfii..purportcd @ntcnr, thc Jrlicc rcarchcdpctrtronc.'t homc rnd tci?cd numcrour it... of "rii"n.. ,f,* *ariintroduccd at rial. Th.sc circumstlnccFthc 
"rtr""t;on'oi *n.rcnt from a rccupcrarint and drutgcd p"t,.nr ln 
" 

r*-oii"ill1ocmano tnc mcl crrclul sru(iny bcforc rhc onscnt may bcdccnrcd rotuntary. tf rhc prition'foi .irii*i; i.i.'rr"iii,i
wuuld eddrcs this isruc ar'*cll

.. 'Bccru$ I 6ntinuc to bclicvc that thc dcalh rn!ltv it und..rr crcumllnq crucl lnd unurual punishmcnt forUlaacn Uy ihi

8l-280 Gcn
Pcn nsy I va n ia;

Bldg. (lontractors Assn. v
Eijhth Amcndmcnt. I would also grant thc nctition for ccnio,ari
rn thrs crrc snd vacstc tha judgmcnl bclow rnsofar as il lcavcs
undrslurtEd thc dcalh icnlcncc.

.'Thc Slalc anr.nds rhrt pclirioncr shot himsclf and callcd thc
policc at part of a dclibcratc rchcmc kr prn lh. blamc on .ilothcr.
Thir @ntcnrion it irrclcvrnt to (hc af. of pctitioncr'r ooifnt.
Whcrhcr or not thc sll for hclp was-rr ' sc*ing. tl,c qr";rio;
rcmains rhcth.r it can rcarcnably bc con.lrued 

"io "onrint 
tu u

scarch unlimitcd in rimc and IGation.

8l-310 Unired Iingineers v. pennsylvanra;
tll-331 Conrracrors of bl. pa v. pennsytvinia;
8l-332 Clasgow, lnc. v. pennsytuuniai anJ 

-'
til--133 llcchtcl Powcr Corp. v. pennsylvania

. The motion of Black liconontic Survival firr
lcavg 16 fi;e a brief as amicus curiae ,ur uf rin,"li
d en icd.

0r4n-8139/82/$00 50