Davis v. United States Brief for the United States
Public Court Documents
February 1, 1973

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Brief Collection, LDF Court Filings. Davis v. United States Brief for the United States, 1973. 4b642c2e-af9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/43f10def-9315-4db4-8823-71334e201dac/davis-v-united-states-brief-for-the-united-states. Accessed June 13, 2025.
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No. 71-6481 Jn the jfctprmt (ta rt uf to H n M plates October T erm , 1972 Clifford H . D avis, petitioner V i U nited States of A merica ON W R IT OF C E R T IO R A R I TO TH E U N ITED STATES COURT OF APPE A LS FO R TH E F IF T H CIRCU IT BRIEF FOR THE UNITED STATES ERWIN N. GRISWOLD, Solicitor General, HENRY E. PETERSEN, A ssistant A ttorney General, EDWARD R. KORMAN, Assistant to the Solicitor General, SIDNEY 3YL GLAZER, JOHN J. ROBINSON, Attorneys, D epartm ent o f Justice, Washington, D.C. 20530. I N D E X Page Opinions below_______________________________ 1 Jurisdiction_________________________________ 1 Question presented----------------------------------------- 2 Statutes and Buie involved------------------------------ 2 Statement __________________________________ 6 1. The pre-trial proceedings---------------------- 6 2. The trial and the appeal----------------------- 7 3. The motion to vacate sentence-------------- 8 Summary of Argument-------------------------------------- 12 Argument: Introduction and background---------------------- 16 The absence of a timely pretrial objection to defects in the institution of the prosecution or indictment as required by Rule 12(b) (2) of the Rules of Criminal Procedure bars a collateral attack based upon the claim that Negroes were excluded from the grand jury, unless there is “ cause shown” for granting relief “ from the waiver” ----- 20 A. Under Rule 12(b)(2), all defects in the institution of the indict ment, including constitutional de fects, are waived unless raised before trial_____________________ 21 B. The federal habeas corpus statute and the cases construing it do not govern this case------------------------- 29 C. Denial of the writ of habeas corpus would be justified even under the federal habeas corpus statute------- 38 Conclusion__________________________________ 44 i 494-433— 72------ 1 IX CITATIONS Cases ■ paga American Federation of Musicians v. Stein, 213 F. 2d 679, certiorari denied, 348 U.S. 873__ 32 Ballard v. United States, 329 U.S. 187------------ 24, 42 Bain, ex parte, 121 U.S. 1__________________ 40 Barker v. Wingo, 407 U.S. 514____ __________ 33 Brown v. Allen, 344 U.S. 443------------------ 28, 29, 36 Bulova Watch Co. v. United States, 365 U.S. 753______________________________________ 32 Burris v. United States, 430 F. 2d 399, certiorari denied, 401 U.S. 921---------------------- 12 Bastillo v. United States, 421 F. 2d 131_______ 28 Chambers v. Maroney, 399 U.S. 42___________ 43, 44 Chapman v. California, 386 U.S. 18__________ 41 Downey v. Peyton, 451 F. 2d 236_____________ 43 Duncan v. Louisiana, 391 U.S. 145_____________ 24 Dupoint v. United States, 388 F. 2d 39________ 32 Ethington v. United States, 379 F. 2d 965_____ 43 Fay v. Noia, 372 U.S. 391__. 28, 30, 31, 36, 37, 38, 39 Fernandez v. Meier, 408 F. 2d 974____________ 28 Hanna v. Plumer, 380 U.S. 460______________32, 36 Henderson v. Toilet, 459 F. 2d 237, certiorari granted, October 16,1972, No. 72-95______ 37 Henry v. Mississippi, 379 U.S. 443__________ 35 Hill v. Texas, 316 U.S. 400_________________ 41 Hurtado v. California, 110 U.S. 516__________ 40 Illinois v. Allen, 397 U.S. 337_______________ 43 John R. Allen & Co. v. Federal Nat. Bank, 124 F. 2d 995_______________________________ 32 Kaufman v. United States, 394 U.S. 217______ 13, 14, 29, 30, 31, 33, 36, 39 Lawrence v. Wainwright, 445 F. 2d 281_______ 43 Machibroda v. United States, 368 U.S. 487____ 12 Metropolis v. Turner, 437 F. 2d 207_________ 43 Michel v. Louisiana, 350 U.S. 91___________ 28, 34 I l l Cases—Continued Page Moore v. United States, 432 F. 2d 7390______ 28 Myricks v. United States, 434 F. 2d 965_____ 43 Neil v. Biggers, No. 71-586, decided Decem ber 6, 1972____ 12 O’ Connor v. Ohio, 385 U.S. 92______________ 42 Palko v. Connecticut, 302 U.S. 319__________ 40 Parker v. North Carolina, 397 U.S. 790______ 37 Peters v. Kiff, 407 U.S. 493_________________ 25, 37, 40, 41, 44 Poliafico v. United States, 237 F. 2d 97, certiorari denied, 352 U.S. 1025__________ 28 Rabinowitz v. United States, 366 F. 2d 34____ 18 Sanders v. United States, 373 U.S. 1_________12, 28 Scales v. United States, 367 U.S. 203________ 17 Shotwell Mfg. Co. v. United States, 371 U.S. 341____________ 10, 11, 21, 23, 24, 25, 35, 36, 42 Sibbach v. Wilson & Co., 312 U.S. 1________ 32 Singer v. United States, 380 U.S. 24_________ 32 Snyder v. Massachusetts, 291 U.S. 97__ _____ 40 Strauder v. Virginia, 100 U.S. 303__________ 41 Sunal v. Large, 332 U.S. 174_______________ 30 Terry v. Ohio, 392 U.S. 1__________________ 44 Throgmartin v. United States, 424 F. 2d 630__ 11 United States v. Dionisio, No. 71-1229, decided January 22, 1973________________________ 40 United States v. Gale, 109 U.S. 65___________ 28 United States v. Hayman, 342 U.S. 205______31, 39 United States v. Kras, No. 71-749, decided January 10, 1973________________________ 32 United States v. Polk, N.D. Miss., No. CRD. 6824, affirmed, 433 F. 2d 644_____ _______ 18 United States v. Singer, 380 U.S. 24_________ 36 United States ex rel. DiRienzo v. Yeager, 443 F. 2d 228_____ - ___________________________ 43 IV C a ses—C ontinued Page United States ex rel. Goldsby v. Harpole, 263 F. 2d 71, certiorari denied, 361 U.S. 838— 36 United States v. Weinstein, 452 F. 2d 714, certiorari denied sub nom. Grunberger v. United States, 405 U.S. 917---------------------- 32 United States v. Williams, 421 F. 2d 529------- 28 Wapnick v. United States, 406 F. 2d 741____ 43 Williams v. Florida, 399 U.S. 78------------------ 24, 35 Winsor v. Daumit, 179 F. 2d 475----------------- 32 Witherspoon v. Illinois, 391 U.S. 510-------- 24 Winters v. Cook, 466 F. 2d 1393___ — ------- 37 Constitution, statutes, and rules: Act of February 5, 1867, c. 28, § 1, 14 Stat 385, now United States Constitution, Fourth Amendment_______________ :-------------- : _ _ 43 Civil Rights Act of 1957, 71 Stat. 685, et seg__ 17 Jury Selection and Service Act of 1968, 82 Stat 53, 28 U.S.C. 1861, et seq^„________ 17, 18 18 U.S.C. 243____________________________ 18, 25 18 U.S.C. 2113(a)____________ ____________ 6, 12 18 U.S.C. 3771 (formerly 18 U.S.C. (1940 ed.) 687)_______ _________________________3, 14, 31 28 U.S.C. (1964 ed.) 1863(c) _ _____________ _ 4 28 U.S.C. (1964 ed.) 1864_______________________ 4 28 U.S.C. 2241_______•____________________ 29 28 U.S.C. 2243___________ 20 28 U.S.C. 2254_______________________ 30 28 U.S.C. 2255____________•___________ _ 5, 8, 11, 12, 13, 16, 28, 29, 30, 39, 42 F.R. Grim. P.: Rule 12__________________________________ 9 Rule 12(b) (2)_______________________________ 2, 11, 12, 13, 14, 15, 16, 20, 21, 23, 24, 26, 28, 29, 30, 31, 32, 33, 34, 36, 37, 38, 42, 43 V New Federal Rules of Evidence: page Rule 201(b)(2)____________________________ 19 Rule 201(d)______________________________ 19 Rule 201(f)_______________________________ 19 Miscellaneous: Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 XJ. Pa. L. Rev. (1964)___ 43 Bator, Finality in Criminal Lav: and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. (1963)_________________________ 43 Federal Rules of Criminal Procedure (Pre liminary Draft (1943))__________________ 28 Federal Rules of Criminal Procedure (Second Preliminary Draft (1944))_______________ 28 Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. (1970)-------------------------------------- 31,43 14. Rep. No. 1076, 90th Cong., 2d Sess_........ 17, 18 Hearings Before the Subcommittee On Im provement of Judicial Machinery of the Senate Committee of the Judiciary on S. 383, 90th Cong., 1st Sess_________________ 18, 19 Mayers, The Habeas Corpus Act of 1867: The Supreme Court as Legal Historian, 33 U. Chi. L. Rev. (1965)____________________ 31 Oaks, Legal History in the High Court— Habeas Corpus, 64 Mich. L. Rev. (1960)___ 31 The President’s Commission on Law En forcement and The Administration of Jus tice, Task Force Report: The Courts (1967) _ 43 K it the jS u jjm n e ©im rt o f tin U n ited p la te s October Term , 1972 No. 71-6181 Clifford H. D avis, petitioner v. U nited States of A merica ON W R IT OF C E R TIO R AR I TO TH E UNITED STATES COURT OF APPE ALS FOR THE F IF T H CIRCUIT BRIEF FOR THE UNITED STATES OPINIONS BELOW The opinions of the court of appeals affirming the order of the district court (A. 33-35) and denying re hearing (A. 36-37) are reported at 455 F. 2d 919. The opinion of the district court denying the motion for collateral relief (A. 17-26) is unreported. JURISDICTION The judgment of the court of appeals was entered on January 20, 1972 (A. 35). A petition for rehearing was denied on February 25, 1972 (A. 36). The petition for a writ of certiorari was filed on April 6, 1972, and granted on October 10, 1972. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). ( i ) 2 QUESTION PRESENTED Whether the district court properly exercised its dis cretion in denying without a hearing a collateral attack on a conviction based on petitioner’s assertion that the system used for selecting grand jurors at the time of his indictment systematically excluded Negroes from grand juries, where petitioner failed to challenge the grand jury array prior to trial as required by Rule 12(b) of the Federal Rules of Criminal Procedure and made no showing of cause warranting relief from that rule. STATUTES AND RULE INVOLVED Rule 12(b) of the Federal Rules of Criminal Pro cedure provides in pertinent part: (b) The Motion Raising Defenses and Objections. (1) Defenses and Objections Which May Be Raised. Any defense or objection which is capable of determination without the trial of the general issue may be raised bef ore trial by motion. (2) Defenses and Objections Which Must Be Raised. Defenses and objections based on defects in the institution of the prosecution or in the indictment or information other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein pro vided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the indictment or information to charge an 3 offense shall be noticed by the court at any time during the pendency of the proceeding. (3) Time of Making Motion. The motion shall be made before the plea is entered, but the court may permit it to be made within a rea sonable time thereafter. (d) Hearing on Motion. A motion before trial raising defenses or objections shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue. An issue of fact shall be tried by a jury if a jury trial is required under the Constitution or an act o f Congress. All other issues of fact shall be determined by the court with or without a jury or on affidavits or in such other manner as the court may direct. * * * * * 18 U.S.C. 3771 provides: The Supreme Court of the United States shall have the power to prescribe, from time to time, rules of pleading, practice, and pro cedure with respect to any or all proceedings prior to and including verdict, or finding of guilty or not guilty by the court if a jury has been waived, or plea of guilty, in criminal cases and proceedings to punish for criminal contempt of court in the United States district courts, in the district courts for the District of the Canal Zone and the Virgin Islands, in the Supreme Court of Puerto Rico, and in proceed ings before United States magistrates. Such rules shall not take effect until they have been reported to Congress by the Chief Justice at or after the beginning of a regular session thereof 404-433— 72-------2 4 but not later than the first day of May, and until the expiration of ninety days after they have been thus reported. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. Nothing in this title, anything therein to the contrary notwithstanding, shall in any way limit, supersede, or repeal any such rules here tofore prescribed by the Supreme Court. * * * * * 28 U.S.C. (1964 ed.) 1863(c), at the relevant times, provided: No citizen shall be excluded from service as grand or petit juror in any court of the United States on account of race or color. 28 U.S.C. (1964 ed.) 1864, at the relevant times, provided: The names of grand and petit jurors shall be publicly drawn from a box containing the names of not less than three hundred qualified persons at the time of each drawing. The jury box shall from time to time be re filled by the clerk of court, or his deputy, and a jury commissioner, appointed by the court. Such jury commissioner shall be a citizen of good standing, residing in the district and a well known member of the principal political party in the district, opposing that to which the clerk, or his deputy then acting, may belong. He shall receive $5 per day for each day necessarily employed in the performance of his duties. The jury commissioner and the clerk, or his deputy, shall alternately place one name in the jury box without reference to party affiliations, 5 until the box shall contain at least 300 names or such larger number as the court determines. This section shall not apply to the District of Columbia. 28 U.S.C. 2255 provides in pertinent part: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to im pose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. A motion for such relief may be made at any time. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. I f the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judg ment aside and shall discharge the prisoner or 6 resentence him or grant a new trial or correct the sentence as may appear appropriate. A court may entertain and determine such motion without requiring the production of the prisoner at the hearing. The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner. * * * * * STATEMENT 1. The Pre-Trial Proceedings. An indictment returned in the United States Dis trict Court for the Northern District of Mississippi on January 30, 1968, charged petitioner, a Negro, and two others, both white, with entry into a federally insured bank with the intent to commit larceny in violation of 18 U.S.C. 2113(a). On February 18, 1968, petitioner appeared with his appointed counsel for arraignment1 and entered a plea of not guilty. At the time he wTas given thirty days within which to file pre-trial motions (A. 2).2 On March 6,1968, petitioner filed a motion to quash the indictment on the ground that the indictment was the result of an illegal arrest 1 The district court’s memorandum opinion refers to arraign ment on March 21, 1968 (A. 19). This is obviously an in advertent reference to the date the transcript of the arraignment was tiled. 2 On this same date petitioner appeared for arraignment without counsel on a separate charge o f escape. Arraignment on this charge was continued until separate counsel could be appointed. On March 8, 1968, petitioner appeared with ap pointed counsel for arraignment, entered a plea of not guilty, and was given thirty days within which to file motions. The escape prosecution was eventually dismissed. 7 (A. 31). No other pre-trial motions attacking the in dictment were filed. On May 6, 1968, following voir dire of the jury in open court (I I T. 1-36),3 the district court ruled on the pre-trial motions in chambers (I I T. 30-33), ordering that the motion to dismiss the indictment on the ground of illegal arrest would he carried with the case (I I T. 33-34). The trial judge then twice asked petitioner and his counsel if there was anything else and, receiving no response, the proceedings where re turned to open court and the trial commenced (I I T. 35-36). 2. The Trial and the Appeal. The evidence at trial was overwhelming. The record, which is detailed in the opinion of the court of ap peals on direct appeal, 409 P. 2d 1095, 1096-1098 (C.A. 5), showed that petitioner and his two accomplices were apprehended about 4:30 A.M. attempting to flee from the scene of a bank burglary in Hickory Plat, Mississippi. Petitioner’s clothes and shoes were found to contain residue from the break-in of the bank and slag from the cutting torch used to open the vault. Other evidence connected petitioner’s two accomplices with the bank and with the car and truck parked outside the bank during the burglary. Petitioner offered no evidence in his defense. 3 During the voir dire of the petit jury, petitioner’s counsel specifically asked whether any juror would feel any prejudice toward the defendant because he was a Negro (II T. 14). “ T ” refers to the transcript o f proceedings in the record on appeal o f the original conviction. A copy o f the record in four volumes has been lodged with the Clerk. 8 During the two and one-half days of trial, no other question was raised with respect to the indictment (I I T. 37-1Y T. 521). The jury found petitioner guilty. On May 21, 1968, he filed a written motion for new trial alleging nine grounds, none of which went to the indictment (A. 29). After a hearing on May 23, 1968, the motion for new trial and the earlier motion to dismiss the indictment were denied (IY T. 522, 561— 564). An oral motion for new trial which did not go to the indictment was then presented and denied (IY T. 564-604). Petitioner was later sentenced to im prisonment for fourteen years.4 On appeal, petitioner’s assignments of error did not relate to the alleged exclusion of Negroes from the grand jury. On April 14, 1969, petitioner’s con viction was affirmed. 409 P. 2d 1095 (C.A. 5). (The court of appeals commented at that time: “ We have rarely witnessed a more thorough or more unstinted expenditure of effort by able counsel on behalf of a client.” 409 ¥. 2d at 1101). 3. The Motion to Vacate Sentence. On January 19, 1971, petitioner filed a motion (A. 6-8) pursuant to 28 U.S.C. 2255 asking the court to dismiss the indictment on the ground that the grand jury that had returned it was “ an unconstitutional array, inasmuch as it did not meet the mandatory 4 The petitioner cannot contend that he was naive or inex perienced in the criminal process. He was forty-one years old and had a long criminal record including two prior federal felony convictions and two prior state felony convictions. (Un numbered transcript of sentencing proceedings o f May 24,1968). 9 requirement of the statute laws set forth * * * in title 28, U.S.C.A. Section 1861, 1863, 1864, and the 5th amendment of the ifnited States Constitution” . He specified ‘ ‘that the jury commissioner and Clerk of Court for the Northern District of Mississippi for the past 20 years implementing* the * Keyman’ and ‘Selectors’, system cause nought to [sic] token in their selection of prospective qualifying Negro jurymen because of their race in violation of Section 1863” and “ that the Northern District Court has by its affirmative action taken for the past 20 years has acquiesced to systematically, purposefully, unlawfully and unconstitutionally excluded [sic] the prospective qualified resident Negroes from the Grand Jury box in violation of Section 1864” (A. 6-7). Petitioner also alleged that he had neither waived nor abandoned the right to contest the array under Rule 12, Fed. R. Crim. P., that “ the court’s appointed Law Student/ who was researching the Grand Jury array question within, * * *, was stopped from see ing petitioner by the Lafayette County Sheriff” and that “ a timely oral motion was made in open court before trial by his Court appointed lawyer” (A. 8). In an accompanying motion for discovery and inspec tion (A. 9-12), petitioner sought any documents setting forth the method used to obtain names of prospective jurors, and copies of questionnaires mailed to prospective jurors over the prior twenty years. He 5 5 A law student had been assigned to assist petitioner’s court- appointed attorney in preparation o f his defense to the separate escape indictment. 10 also included a series of interrogatories relating to the selection of grand jurors during that period. The United States denied each of the allegations of the motion, and asserted that, in any event, peti tioner was entitled to no relief because the files and records of the case conclusively showed that he had not previously at any time raised any objection to the grand jury (A. 13). On June 14, 1971, the district court filed an opin ion denying the motion without a hearing (A. 17- 26). The court stated (A. 19) : The Court recalls no such oral motion having- been made. In order to avoid any possible over sight, injurious to the rights to the petitioner, the court has read in full the transcript of the proceedings at every stage of petitioner’s pros ecution and has read the entire jacket file, in cluding docket entries. These voluminous records reveal that not the slightest reference was made to the composition of the grand jury either by petitioner or by his attorney at any stage of the proceedings. * * * The court finds, therefore, that petitioner did not object to the composition of the grand jury prior to trial and did not raise such an objection at any other stage of the proceedings, including his trial, motion for new trial, appeal, nor in his various post conviction motions, until the fil ing of the petition now before the court. The district court, relying on Shotwell Mfg. Go. v. United States, 371 'U.S. 341, concluded that petitioner had waived his right to object to the composition of the 1 1 grand jury because this was a contention that, under Rule 12(b)(2), of the Federal Rules of Criminal Procedure, is waived unless raised by motion prior to trial (A. 19-23). The court further concluded that there was nothing in the facts of the case or in the nature of the claim justifying the exercise of the court’s power under Rule 12(b)(2) to “grant relief” from the waiver for “ cause shown.” In so ruling, the court noted that the system for selection of grand jurors had been openly followed for many years prior to petitioner’s indictment, that the same grand jury that indicted petitioner indicted his two white accom plices, and that the ease against him was “ a strong- one” (A. 24-25). On appeal, the court below affirmed on the basis of Shotwell and Rule 12(b)(2) (A. 33-34), finding that any objection to the composition of the grand jury had been waived.6 In denying petitioner’s motion for rehearing, the court independently found, as had the district court, that no oral pre-trial motion challeng ing the grand jury had been made (A. 36-37', note l ) . 7 6 The court had previously rejected an identical claim raised by a co-defendant o f petitioner who had pleaded guilty. See Throgmartin v. United States, 421 F. 2d 680 (C.A. 5). 7 Although raised in his petition for a writ o f certiorari as a question presented, petitioner apparently no longer challenges the findings of the two courts below, made without a hearing, that he did not in fact make any pre-trial challenge to the selection of the grand jury and thus that the waiver provision of Rule 12(b) (2) is, by its terms, applicable to this case. Sec tion 2255 allows a court to dispense with an evidentiary hearing when “the motion and the files and records of the case con clusively show that the prisoner is entitled to no relief * * 494-433— 72------ 3 12 ■ SUMMARY OP ARGUMENT A Rule 12(b)(2) of the Federal Rules of Criminal Procedure provides that “ [djefenses and objections based on defects in the institution of the prosecution or in the indictment or information” may be raised “ only by motion before trial,” and that the failure to raise the “ defenses or objections” as provided “ constitutes a waiver thereof” (but the court “ for cause shown” may grant relief from the waiver). The Advisory Committee Rotes, the comments of the draftsmen, and the construction and application Rule 12(b)(2) by this Court and the courts of appeals, confirm what the language of Rule 12(b)(2) makes plain, that its waiver provisions apply to objections to the method of selecting grand jurors. B Petitioner was tried and convicted of illegally en tering a federally insured bank with intent to commit That authority was properly invoked here. See MacTubroda v. United States, 368 U.S. 487, 494-495; Sanders v. United States, 373 U.S. 1, 19-21. See also Burris v. United States, 430 F. 2d 399 (C.A. 7), certiorari denied, 401 U.S. 921. Moreover, the court o f appeals stated that it too had “ care fully examined all the files, record and supplementary records, as well as the transcript of testimony in this matter” and found that there “ is no mention therein of a motion, oral or written, challenging the Grand Jury array” . The court thus concluded: “ The contention is raised for the first time, in this Section 2255 proceeding” (A. 36). In accordance with the “ salutary” rule of practice, “ to be followed -where applicable” , this Court “ does not lightly overturn the concurrent findings o f fact of two lower federal courts * * *.” Neil v. Biggers, No. 71-586, decided December 6, 1972 (Slip op. p. 4, n. 3). That rule is fully ap plicable here. 13 larceny in violation of 18 U.S.G. 2113(a), The evi dence against him was overwhelming and uneon- troverted. Although he was represented by diligent and able defense counsel, and although petitioner himself was not a young and inexperienced defendant, no challenge was made at or before trial or on direct appeal to the methods employed in the selection of the grand jury that indicted him. Despite the clear re quirements of Rule 12(b)(2), petitioner and the Amicus Curiae argue that failure to comply with “ procedural rules will not in and of itself result in a waiver” of the right to object to the composition of the grand jury, and that petitioner may assert this claim three years after his trial and conviction, when retrial may no longer be possible. Petitioner places principal reliance for this proposition on Kaufman v. United States, 394 U.S. 217, which he asserts holds absolutely and unequivocally that the claim he raises here is not waived by his failure to assert it at or before trial, and may always be heard on collateral review. Kaufman v. United States, however, did not in volve the application of the express waiver provisions of Rule 12(b) (2). The case turned principally on the language of the federal habeas corpus statute (Sec tion 2255 of the Judicial Code for federal prisoners). The only basis for the claim of waiver asserted there was a limitation inherent in the nature of the writ of habeas corpus—i.e., that the writ could not be issued where the petitioner had failed to assert the claim on appeal. The rejection of that argument turned on the construction of the general provisions 14 of the habeas corpus statute which were construed to have “ expanded” the scope of the writ to permit re lief in all cases where the petitioner is restrained of his or her liberty in violation of the Constitution. The general provisions of the habeas corpus statute, however, must be read alongside the specific provi sions of the Federal Rules of Criminal Procedure, not discussed in Kaufman. Rule 12(b)(2) does not simply afford “ a procedure” for asserting an objec tion to the composition of the grand jury. Rather, it requires that such an objection must be timely raised or is waived. The provisions of the Federal Rules of Criminal Procedure, promulgated by this Court and accepted by Congress, are explicitly given the force of law, modifying pro tanto any laws inconsistent with them (18 U.S.C. 3771). Under well established canons of statutory construction, Rule 12(b)(2) governs the timeliness of asserting the kind of objec tion petitioner here asserts. Accordingly, cases con struing the reach of the habeas corpus statute, such as Kaufman v. United States, supra, and Fay v. Noia, 372 U.S. 391, are inapplicable here, because the ex press waiver provision of Rule 12(b) (2), not involved in such eases, limits the non-jurisdictional claims that can be raised for the first time on collateral attack. We do not argue here that this Court may inulgate a rule, or that Congress may enact a statute, barring collateral relief on all claims not timely as serted without regard to the effect of the alleged constitutional violation on a defendant’s right to a fair trial or the reasons for the failure to make a timely objection. But Rule 12(b)(2) is not such a 15 broad and unyielding provision. The Rule does not apply to objections or defenses which go to the fair ness of the guilt determining processes or which affect the trial in any way. Rather it is applicable only to objections based on defects in the institution of the prosecution or in the indictment,’ objections such as that at issue here, which if timely asserted can be rectified. A “ waiver” provision is peculiarly appropriate to such defenses, because a defendant generally has lit tle to gain by making a timely objection. While an objection to the admissibility of evidence will result in its permanent suppression, an objection to a de fect in the institution of the proceeding will gen erally result only in a new indictment. Thus, without the risk of waiver, there is great incentive for a de fendant to delay his objection in the hope of an acquittal, and assert the objection only as another basis for upsetting a valid judgment of conviction. Rule 12 (b) (2) permits a district court judge to grant relief from the waiver provisions for cause shown.” The record is uncontroverted here that with due diligence the claims advanced here could have been discovered and asserted before trial, and that “ cause” has not been shown by petitioner for the failure to make a timely objection. The denial of the petition was therefore justified. C Similar considerations would also warrant denial of the petition even if Rule 12(b)(2) were not ap plicable. Under the habeas corpus statute, the dis 16 trict court has discretion to deny collateral relief in appropriate circumstances. While the cases generally limit the discretion to deny relief to instances where the prisoner knowingly and deliberately by-passed the procedure for asserting his claim at trial or on ap peal, the cases applying that standard involve errors of constitutional dimension which have a direct bear ing on the prisoner’s guilt or innocence, or the fair ness of the trial. In the instant case, petitioner’s claim does not in any way affect the determination of guilt or innocence, but alleges only a curable de fect in the initiation of the proceeding. Given the nature of the claim, the three year delay before the petition was filed, the absence of any excuse for the delay, as well as the lack of any possible prejudice, the district court would be warranted in exercising its discretion to deny the petition, without regard to the express waiver provision of Rule 12(b)(2). When, along with these facts, it is not alleged that there was deliberate exclusion of Negroes from the petit jury, and since the system used for the selection of jurors, which petitioner attacks, has been replaced, the exercise of the court’s discretion to reject the collateral motion is compelling. A R G U M E N T INTRODUCTION AND BACKGROUND This case involves the right of a federal prisoner to complain for the first time in a collateral proceeding under 28 U.S.C. 2255, several years after liis convic tion, about the alleged exclusion of Negroes from the 17 federal grand jury which had returned the indictment on which he was found guilty by a petit jury whose selection he does not challenge. In resolving this ques tion, the Court may find it helpful to consider the context in which the question arises in this case, and which an evidentiary hearing was not needed to develop. 1. When petitioner was indicted in the Northern Dis trict of Mississippi in 1968, jury selection was governed by the Civil Rights Act of 1957, 71 Stat. 635, et seq. in which Congress adopted uniform federal jury qual ifications but left jury selection largely to the discre tion of the court clerk and a jury commissioner appointed by the district court. As petitioner alleges, the “ key man” system was employed in the selection of grand jurors. Under this system, which was em ployed in “ [mjost federal jurisdictions piioi to the adoption of the Jury Selection and Service Act of 1968 (28 U.S.C. 1861-1869), and which was expressly approved by this Court in Scales v. United States, 367 U.S. 203, 259,8 “key men” who are “ thought to have extensive contacts throughout the community, supply the names of prospective jurors” to the clerk and jury commissioner (H. Rep. No. 1076, 90th Cong., 2d Sess. n. 1). The use of the system, as the Amicus Curiae acknowledges, “ has not * * * by and large [resulted in] deliberate exclusion of blacks” (Br. 19), but has instead on occasion resulted in “unin tentional” under-representation of Negroes and other 8 See, also United States v. Hoff a, 349 F. 2d 20, 29 (C.A. 6), and cases cited, affirmed, 385 U.S. 293. 18 groups on jury lists. See, e.g., Rabinowitz v. United States, 366 F. 2d 34 (C.A. 5 ); H. Rep. No. 1076, supra; S. Rep. No. 891, 90th Cong., 1st Sess.9 Because of this under-representation, the 1968 Jury Selection Act provided that each district court must adopt a plan for jury selection that includes detailed pro cedures designed to ensure the random selection of a fair cross section of the persons residing in the com munity in which the court convenes. 2. The manner in which grand and petit jurors were selected under the “key man” system in the Northern District of Mississippi was detailed by the clerk of the district court to the Senate Judiciary Subcommittee on Improvements in Judicial Machinery (see Hearings on S. 383, 90th Cong., 1st Sess. 993- 996), and in an affidavit filed in response to an attack on the method of grand jury selection in that district by a defendant indicted by the same grand jury that indicted petitioner ( United States v. Polk, N.D. Miss., No. CR.D. 6824, affirmed, 433 F. 2d 644 (C.A. 5 )).10 918 TJ.S.C. 243, originally enacted in 1867, makes it an o f fense for any person “being an officer or other person charged with any duty in the selection or suntwioning o f jurors,” to exclude or fail to summon any citizen for duty as a grand or petit juror “ on count of race, color, or previous condition of servitude * * 10 The defendants in Polk were originally indicted in 1966 and by timely pre-trial motions challenged the composition of the grand jury that returned that indictment on the ground of systematic exclusion of women and Negroes. A superseding in dictment in the Polk case was returned in September 1968 and, by stipulation and order, the motion challenging the composi tion of the grand jury was directed to the new grand jury. This grand jury was the same one which had indicted peti tioner in 1968. The government responded with affidavits o f the 19 The Clerk, in answer to the Committee’s question naire, said that he gave the following instructions to the “ key men” (Hearings, supra, p. 994) : “ I tell them that I need names of males and females, white and non-wliite.” Once the names of the potential grand and petit jurors were obtained, they were di vided into four “ wheels” for selection of petit jurors by divisions within the district; a combined list from all four divisions was placed in a fifth wheel for se lection of grand jurors. This difference accounts for petitioner’s challenge only to the grand jury rather than to the petit jury which convicted him (see Peti tioner’s Response to the Opposition to the Petition for Certiorari, p. 3). Under this system the pro portion of blacks represented on the four petit juror lists would not necessarily be the same as on the dis trict wide grand jury list. 3. We reiterate at this introductory juncture that the present case does not involve a challenge to the composition of the petit jury that found petitioner guilty beyond a reasonable doubt, nor does it involve outright exclusion of Negroes from the grand jury that decided that he and his two white co-defendants clerk of the district court and of numerous practicing attorneys in the Northern District of Mississippi showing that blacks were represented on juries in significant numbers. Subsequently, a stipulation was entered into between the defendants and the prosecutor that the challenge would lie limited solely to the exclusion o f women and that the challenge based on the ex clusion o f Negroes was specifically withdrawn. We are lodg ing with the Clerk the pleadings and affidavits filed in the Polk case, which are appropriate subjects of judicial notice. See Rules 201 (b ) (2 ) , (d), and ( f) o f the new Federal Rules of Evidence, which codify the prevailing practice. 494-433— 73- 4 2 0 had to stand trial. The challenge is to a method of selection—now superseded by other statutory proce dures—which may have resulted in under-representa tion of blacks on grand juries. These facts, as we show, are significant in determining whether the dis trict court could in the exercise of its discretion under Rule 12(b)(2) and 28 U.S.C. 2243, decline to permit petitioner to challenge an otherwise valid judg ment of conviction, three years after his trial, where the issue was not timely raised, where the error does not involve the guilt determining process, but only a defect in the institution of the proceeding, and where the composition of the grand jury that indicted him could not possibly have affected its decision to accuse him. THE ABSENCE OF A TIMELY PRETRIAL OBJECTION TO DE FECTS IN THE INSTITUTION OF THE PROSECUTION OR INDICTMENT AS REQUIRED BY RULE 1 2 ( b ) ( 2 ) OF THE FEDERAL RULES OF CRIMINAL PROCEDURES BARS COLLAT ERAL ATTACK BASED UPON THE CLAIM THAT NEGROES WERE EXCLUDED FROM THE GRAND JURY, UNLESS THERE IS ‘ ‘ CAUSE SHOWN” FOR GRANTING “ RELIEF FROM THE w a i v e r ” . Unless this Court holds Rule 12(b)(2) of the Fed eral Rules of Criminal Procedure unconstitutional, the decision below must be sustained. Rule 12(b)(2) pro vides that “defenses and objections based on defects in the institution of the prosecution or in the indict ment” —other than that the indictment fails to show jurisdiction in the court or to charge an offense—“may be raised only by motion before trial” (emphasis added). The Rule also requires that the “motion shall 21 include all such defenses and objections then available to the defendant.” The Rule then expressly establishes that “ [fjailure to present any such defense or objec tion as herein provided constitutes a waiver thereof,” except that “ the court for cause shown may grant relief from the waiver.” The plain wording of this Rule is applicable to all defenses including alleged constitutional defects in the institution of an indict ment, as this Court has ruled and as the history of the Rule indicates. The Rule, therefore, by its terms required the rejection of petitioner’s collateral claim, once the courts below found that there was no suffi cient “ cause” to relieve him from the effect of the waiver. A. UNDER RULE 1 2 ( b ) ( 2 ) , ALL DEFECTS IN THE INSTITU TION OF THE INDICTMENT, INCLUDING CONSTITUTIONAL DEFECTS, ARE WAIVED UNLESS RAISED BEFORE TRIAL. 1. In Shotivell Mfg. Go. v. United States, 371 U.S. 311, 362, the defendants attacked the composition of the grand jury and petit jury for the first time in a post-conviction motion made four years after their trial and conviction. They alleged inter alia that their “ constitutional rights” were violated because the method used in the selection of grand and petit juries failed to secure a cross-section of the population (371 U.S. 361-362). The district court held a hearing to determine whether “ cause” was shown warranting re lief from the waiver operative under Rule 12(b)(2). The district court found “ that the facts concerning the selection of the grand and petit juries were no torious and available to petitioners in the exercise of 2 2 due diligence before trial, [since] [t]he same method of selecting jurors had been followed by the clerk and the jury commissioner for years” (371 U.S. at 363). The failure of the defendants to exercise “ due dili gence” combined with the fact “ that petitioners were not prejudiced in any way by the alleged illegalities in the selection of the juries” (371 U.S. at 363) was held to preclude the defendants from raising the issue four years after the trial. The court of appeals affirmed the finding of the district court, and this Court affirmed the application of the waiver provisions of Rule 12(b) (2), holding (371 U.S. 362) : We think, as the two lower courts did, that petitioners have lost these objections by years of inaction. * * * The holding in Shotwell governs this case. The attack on the grand jury here came three years after petitioner’s trial. The district court found “no plaus ible explanation of his failure to timely make his objection” and thus refused to disregard the waiver of the objection. (A. 24-25) : The method of selecting grand jurors then in use was the same system employed by this court for years. Uo reason has been sug gested why petitioner or his attorney could not have ascertained all of the facts necessary to present the objection to the court prior to trial. The same grand jury that indicted petitioner also indicted his two white accomplices. The case had no racial overtones. The government’s ease against petitioner was, although largely 23 circumstantial, a strong one. There was cer tainly sufficient evidence against petitioner to justify a grand jury in determining that he should stand trial for the offense with which he was charged. * * * The government did not require the assistance of racial prejudice in order to obtain an indictment against peti tioner, and indeed petitioner does not contend that any such prejudice existed. * * * These fin dings which are not challenged here war ranted the rejection of petitioner’s untimely challenge to the method of selecting the grand jury. 2. Petitioner, recognizing “ the apparent obstacles presented by Rule 12(b)(2) F.R.Crim.P., and Shot- well Mfg. Co. v. United States, 371 U.S. 341” (Br. 17), seeks to distinguish the instant proceeding from Shotwell on several grounds: (1) that the “ concession” of the defendants in Shotwell that Rule 12(b)(2) applied to objections to the grand jury array “de prived this Court of any adversarial perspective on the issue and cannot be deemed conclusive against petitioner here” (Br. 18); (2) that the Court in Shotwell said that “both courts below have found that petitioners were not prejudiced in any way by the alleged illegalities in the selection of the grand juries” , while “ [i]n the case at bar prejudice is pre sumed” (Br. 20); (3) that “ the trial court in Shot- well held a hearing on the objections to the jury” and the “ waiver finding was only an alternative basis for [the] decision” (Br. 20) ; and (4) that “ the objections to the array in Shotwell * * * did not rise to the dimension of the fundamental constitutional right 24 asserted by petitioner at bar” (Br. 18-19). These arguments cannot be reconciled with the opinion in Shotwell. First, although the defendants in Shotwell con ceded that the challenge to the composition of the grand jury was barred by their failure to comply with Rule 12(b)(2 ), they expressly contested its ap plication to their challenge to the petit jury; but with the benefit of that “ adversarial perspective,” the Court nevertheless held that both such claims were barred by Rule 12(b)(2) (371 U.S. at 362). The present case follows a fortiori. While the ultimate fact finding fmictions served by the petit jury might have warranted a less restrictive application of the requirements of Rule 12(b)(2 ), when the challenge is to the selection of the trial jury,11 the application of the Rule even to those challenges leaves no room for argument that Shotwell is “not conclusive” against petitioner’s belated objections to the method of select ing the grand jury here. Second, equally without merit is petitioner’s claim that this case is distinguishable from Shotwell be cause prejudice need not be shown here in order to entitle petitioner to relief. This claim was made and rejected in Shotwell. There, relying upon Ballard v. United States, 329 U.S. 187, a jury discrimination case, the defendants argued that their claim regard ing the methods employed in selecting the jury did “ not depend on a showing of prejudice in an indi 11 See, e.g., Witherspoon v. Illinois, 391 U.S. 510, 519-523; Duncan v. Louisiana391 U.S. 145, 155-156; Williams v. Flor ida,, 399 U.S. 78, 100. vicinal case” (329 IT.S. at 195). The Court agreed that where the challenge is timely raised no showing of prejudice is required (371 IT.S. at 363): However, where, as here, objection to the jury selection has not been timely raised under Rule 12(b)(2 ), it is entirely proper to take absence of prejudice into account in determining whether a sufficient showing has been made to warrant relief from the effect of that Rule. Reliance on Peters v. Kiff, 407 IT.S. 493, to avoid this aspect of Shot-well and to assert that “ prejudice is presumed” (Br. 20) is misplaced. In Peters, the quest! on was whether a white man could seek federal habeas corpus relief by asserting that Negroes had been systematically excluded from the state grand jury and petit jury that considered his ease. There was no opinion for the Court; three Justices dis sented on the ground that no prejudice was alleged or shown; and three Justices who concurred in the judgment allowing relief did so on the narrow ground (407 IT.S. at 507) that to allow the claim to be raised even by a white defendant “ would implement the strong statutory policy” of the federal Civil Rights Laws (18 IT.S.C. 243 supra, p. 18, n. 9). Nothing was said or done to undercut the continuing vitality of the holding in Shotwell that the absence of any factual prejudice is relevant in determining whether a federal prisoner seeking collateral review should be relieved from the waiver of a challenge to grand jury selection. Third, there is no basis for petitioner’s claim that because the trial court in Shotwell held a hearing on the objection to the jury, “ the waiver finding was 26 only an alternative basis for decision.” The hearing held by the trial court, to which the Shotwell opinion alluded (371 U.S. at 363), related to whether facts could be adduced to warrant the exercise of the dis trict court’s discretion to “ grant relief from the waiver” (371 U.S. at 362). Because this Court found that the district court had properly applied the waiver provision of Rule 12(b)(2 ), it expressly refrained from reaching the merits of the jury-selection claim, despite the fact that the merits were raised and argued in the briefs (371 U.S. at 364) : We need express no opinion on the propriety of the practices attacked. It is enough to say that we find no error in the two lower courts’ holding that the objection has been lost. This plainly refutes any argument that the waiver holding was dictum. Fourth and finally, while the Court in STiotwell did not reach the merits of the challenge to the jury selec tion procedures, the Court obviously accepted at face value the defendants’ claim that the case involved more than mere irregularities in the method of selec tion of grand jurors, and that just as here, their “ con stitutional rights” (371 U.S. at 362-363) had allegedly been violated. Both in Shotwell and here, the requirements of Rule 12(b)(2) were properly applied to foreclose, as waived, a challenge to the grand jury selection that could have been timely raised but was not. The Ad visory Committee Rotes show beyond dispute that Rule 12(b)(2) was intended to apply to the kind of challenge to the grand jury asserted here: 27 These two paragraphs classify into two groups all objections and. defenses to be inter posed by motion prescribed by rule 12(a). In one group are defenses and objections which must be raised by motion, failure to do so con stituting a waiver. * * * In [this group] are included all defenses and objections that are based on defects in the in stitution of the prosecution or in the indict ment and information, other than lack of juris diction or failure to charge an offense. * * * Among the defenses and objections in this group are the following: Illegal selection or organiza tion of the grand jury, disqualification of in dividual grand jurors, presence of unauthorized persons in the grand jury room, other irregu larities in grand jury proceedings. * * * The provision that these defenses and objections are waived if not raised by motion substantially continues existing law, as they are waived at present unless raised before trial by plea in abatement, demurrer, motion to quash, etc. [18 U.S.C.A. (F.R. Crim. P., Rules 1-14), p. 607; emphasis added.] There can be no claim that the waiver provisions were to be applicable to mere “ irregularities in grand jury proceedings” not involving constitutional ques tions. The Advisory Committee Notes to the prelimi nary drafts, containing detailed discussions of Rule 12(b)(2), included a table (Table II) illustrating the defects “ in the institution of the prosecution” in tended to be covered by the Rule. Among the illustra tive cases were those involving claims that Negroes were unconstitutionally excluded from grand juries. 28 See Federal Rules of Criminal Procedure Prelim inary Draft (1943), p. 57, and Second Preliminary Draft (1944), p. 51. See, also, Preliminary Draft (1943) p. 68, citing United States v. Gale, 109 U.S. 65, 67, a jury discrimination case in which the claim was barred by failure to make a timely objection, as illustrative of the prevailing common law waiver rule. See, also, Michel v. Louisiana, 350 U.S. 91, 99. Moreover, the law was then settled that a failure to assert such constitutional claims seasonably in accord ance with applicable procedural rules operated to bar collateral relief. See, e.g., Brown v. Allen, 344 U.S. 443, 485-486. Accordingly all but one of the courts of appeals which have considered the issue have held that the failure to make a timely challenge to the array of the grand jury, on racial or other grounds, constitutes a waiver of the objection unless good cause is shown for the failure to comply with Rule 12(b)(2). See United States v. Williams, 421 F. 2d 529, 532 (C.A. 8) ; Moore v. United States, 432 F. 2d 730, 740 (C.A. 3, en banc) ; Bustillo v. United States, 421 F. 2d 131 (C.A. 5) ; Poliafico v. United States, 237 F. 2d 97 (C.A. 6), certiorari denied, 352 U.S. 1025; Juelich v. Harris, 425 F. 2d 814 (C.A. 7).12 12 The one exception is the Ninth Circuit’s decision in Fer nandes v. Meier, 408 F. 2d 974, upon which petitioner (Br. 23) and the Amicus Curiae (Br. 14) rely. The court o f appeals there conceded that “ Rule (12) (b ), supra, would require us to hold that failure [o f defendant] to present his claim [of exclusion of Spanish Americans from the grand and petit juries] as therein required ‘constitutes a waiver thereof’ ” (408 F. 2d 977). The court of appeals, however, relying on Fay v. Noia, 372 U.S. 391, and Sanders v. United States, 373 U.S. 29 The Advisory Committee Notes, the application of the Rule in Shotwell, and the consensus of the courts of appeals combine to refute petitioner’s as sertion that Rule 12(b)(2) is not applicable to the claim asserted here. B. THE FEDERAL HABEAS CORPUS STATUTE AND THE CASES CONSTRUING IT DO NOT GOVERN THIS CASE Petitioner’s contention that “ [tjhis ease is con trolled by Kaufman v. United States, 394 U.S. 217” (Br. 10) ignores the crucial distinctions between the two cases. In Kaufman the defendant, who was tried and convicted of bank robbery, sought collateral re lief alleging that illegally seized evidence had been admitted against him at trial, over a timely objection (394 U.S. 220, n. 3), and that this evidence resulted in the rejection of his only defense to the charge. The district court and the court of appeals denied the application on the ground that this claim was not raised on appeal from the judgment of conviction and, “that a motion under § 2255 cannot be used in lieu of an appeal” (394 U.S. 223). The majority of this Court in Kaufman held that this construction of 28 U.S.C. 2225 was inapplicable to constitutional claims (394 U.S. 227), and that col lateral relief under 28 U.S.C. 2255 was not barred 1, held that despite the provisions o f Rule 12 (b )(2 ), which were plainly applicable, collateral relief could be denied under 28 U.S.C. 2255 only upon a showing of a “ knowing and de liberate by-pass” of a timely objection. We shall show below, pp. 29-37, that reliance on cases which did not involve Rule 12 (b )(2 ), and which turned solely on the application o f the habeas corpus statute (28 U.S.C. 2241, et seq.) is not justified. 30 by the defendant’s failure to assert the claim on appeal.13 The first and most obvious distinction is that Kauf man involved a claim that the applicant had been convicted on the basis of unconstitutionally seized evidence. Here, however, without in any way minimiz ing the importance of insuring that grand juries are selected without racial discrimination, petitioner’s col lateral claims do not relate to the trial itself, or to the fairness and accuracy of the guilt-finding process, and thus the need to preserve post-conviction remedies to vindicate his (alleged) rights is not nearly as strong. But beyond this factor, Kaufman did not involve the application of the express waiver provisions of Rule 12(b)(2). The case turned principally on the language of the federal habeas corpus statute (Section 2255 of the Judicial Code, for federal prisoners). The only basis for the claim of waiver asserted there was a limitation inherent in the nature of the writ of habeas corpus—i.e., that the writ could not be asserted where the prisoner had failed to assert the claim on appeal. See e.g., Sunal v. Large, 332 U.S. 174, 179; Brown v. Allen, 344 U.S. 443,-487. The rejection of that argument in Kaufman and Fay v. Noia, supra, turned on the construction of the provisions of 28 U.S.C. 2254, enacted in 1867, which the court con cluded had “ expanded” the writ of habeas corpus to authorize collateral relief in “ all cases where any per 18 Five Justices joined in the Court’s opinion. Justices Black, Harlan, and Stewart dissented. Justice Marshall took no part. 31 son may be restrained of Ms or her liberty in violation of the constitution * * * ” (Kaufman v. United States, supra, 394 U.S. at 221, quoting Act of February 5, 1867, e. 28, § 1,14 Stat. 385, now 28 TJ.S.C. 2254).14 The applicant in Kaufman alleged that he was “ restrained in violation of the constitution” , and the Court found no basis for withholding the remedy, simply because the claim was not asserted on appeal, where the record clearly indicated that there was not a knowing and deliberate bypass of the procedures provided by way of appeal.15 The general provisions of the habeas corpus statute, however, must be read alongside the specific provisions of the Federal Rules of Criminal Procedure, not dis cussed in Kaufman. Rule 12(b)(2) does not simply afford “a procedure” for asserting an objection to the composition of the grand jury. The Rule, which has 14 The common law principles which initially determined the scope of the writ (394 U.S. at 221) precluded collateral attack on a valid judgment of conviction. “ [A ]t common law a judg ment o f conviction rendered by a court of general criminal juris diction was conclusive proof that the confinement was legal * * * [and] prevented issuance o f the writ without more.” United States v. Hayman, 342 U.S. 205, 211. See, also, Oaks, Legal History in the High Court—Habeas Corpus, 64 Mich. L. Eev. 451, 452-456, 461-T68 (1966); Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Eev. 142, 145, n. 13,170-172 (1970); Mayers, The Habeas Corpus A ct o f 1867: The Supreme Court as Legal Historian, 33 U. Chi. L. Eev. 31, 56-57 (1965). Cf. Fay v. Noia, 372 U.S. 391, 405, noting the existence o f “ respectable authority” for a contrary view. 15 The “ deliberate by-pass rule” is likewise based on the Court’s construction o f the effect of the habeas corpus statute. Fay v. Noia, supra, 372 U.S. 438-439; see infra, pp. 37-39. 32 the force and effect of a statute,16 expressly states that the failure to raise timely objections regarding defects in the institution of the proceedings “ constitutes a waiver thereof.” Having been promulgated by this Court and “ adopted” by Congress (Singer v. United States, 380 U.S. 24, 37), under well established canons of statutory construction, it is plain that Rule 12(b) (2) provides the sole and exclusive remedy for viola tions of the rights asserted by petitioner here and pro tanto modifies the statutory “ expansion” o f the grounds on which collateral relief could otherwise have been sought. See Bulova Watch Go. v. United States, 365 IJ.S. 753, 758, and cases cited; United States v. Kras, Ho. 71-749, decided January 10, 1973, slip op. p. 6. We are not suggesting that this Court may promul gate a rule, or that Congress may enact a statute, barring collateral relief in all circumstances where a claim of constitutional dimension was not asserted at or before trial. A statute or rule which failed to take 1618 IJ.S.C. 3771, formerly 18 U.S.C. (1940 ed.) 687, provides that upon taking effect, after submission to Congress, “ [a] 11 laws in conflict with such rules shall be of no further force and effect * * See Sibbach v. Wilson & Go., 312 U.S. 1,10, holding that the Federal Rules of Civil Procedure operated to “ repeal [an inconsistent] statute” ; Dupoint v. United States, 388 F. 2d 39, 44 (C.A. 5), holding that the Federal Rules o f Criminal Procedure “have the force and effect of law. Just as a s ta tu te ,* [they] must be obeyed.” Accord: Hanna v. Plumer, 380 IJ.S. 460, 471 f United States v. Weinstein, 452 F. 2d 704, 715, certiorari de nied sub nom. Grunberger v. United States, 405 U.S. 917; Winsor v. Daumit, 179 F. 2d 475, 477 (C.A. 7 ) ; John R. Allen & Go. v. Federal Nat. Bank, 124 F. 2d 995 (C.A. 10) ; American Federa tion o f Musicians v. Stein, 213 F. 2d 679 (C.A. 6), certiorari denied, 348 U.S. 873. 33 account of the reasons for failure to assert the claim, or of the nature of the constitutional claims asserted, might encounter problems under the Due Process Clause or the Suspension Clause. But neither on its face nor as applied to the present case is Rule 12(b) (2) an overly broad or unduly inflexible requirement. The Rule applies to challenges to the commencement of the proceeding that are “ then available” , and pro vides that a tardy defendant can be relieved from the waiver of such challenges if there is “ cause’ to do so. This procedural requirement is reasonably calculated to protect a defendant’s legitimate interests while at the same time encouraging him to assert any chal lenges to pretrial proceedings before the trial, when they can be determined and cured, rather than years later, after the government, the court, and the wit nesses have gone to the burden and expense of trial, and when retrial may be practically impossible.” The express waiver provisions of Rule 12(b)(2) do not purport to apply to all constitutional claims, but only to claims “based on defects in the institution of the prosecution or in the indictment.” Such claims, unlike claims relating to the admissibility of evidence involved in Kcmfman, generally have no effect on the process by which guilt or innocence is determined and more significantly are capable of being easily cured. While nothing can undo an illegal search or a coerced 17 17 As the- Court aptly observed in Barker v. Wingo, 407 U.S. 514, 521: “ As the time between the commission o f the crime and trial lengthens, witnesses may become unavailable or their memories may fade. I f the witnesses support the prosecution, its case will be weakened, sometimes seriously so.” 34 confession, defects in the indictment and institution of the proceedings can be cured by a new indictment procured in the proper manner. The practical effect of a “ waiver” provision is, therefore, peculiarly ap propriate to such claims, since there is generally little incentive to raise objections involving defects in the indictment or institution of the prosecution before trial. A successful attack merely results in a new in dictment. Nor is there any constitutional impediment to a waiver rule applicable in cases like this one. This Court has already rejected arguments that due process prevents establishment of a rule declaring challenges to the grand jury waived unless timely raised. In Michel v. Louisiana, 350 U.S. 91, the Court held that three Negro defendants charged in state courts could be barred from asserting that Negroes had been systematically excluded from the grand juries that indicted them, because they had failed to comply with a state statute requiring such chal lenges to the grand jury to be raised within three days after the grand jury term expired or before arraignment. There, as in the present case, the Court noted that there was no attack on the composition of the petit jury or on the fairness of the trials (350 U.S. at 93). The Court held: “ It is beyond question that under the Due Process Clause * * * Louisiana may attach reasonable time limitations to the assertion of federal constitutional rights. More particularly the State may require prompt assertion of the right to challenge discriminatory practices in the make-up of 35 a grand jury” (350 U.S. at 97; footnote omitted). And, anticipating its later holding in Shotwell, supra, the Court noted: “ Even in federal felony cases where, unlike state prosecutions, indictment by a grand jury is a matter of right, this Court has strictly circum scribed the time within which motions addressed to the composition of the grand jury may be made,” citing Rule 12(b)(2) (350 U.S. at 99).18 Without the deterrent effect of a waiver provision, there is every incentive for a defendant to delay the claim in the hope of an acquittal, and to assert the claim only as another ground for upsetting an other wise valid conviction, perhaps thereby achieving im munity for the crime because of the effect of delay on the ability to re-indiet or reprosecute. The incen tive is particularly great if, as petitioner claims, no prejudice need be shown. The instant case is illustra tive. Had petitioner asserted his claim prior to trial, and had it resulted in dismissal of the indictment after appropriate proceedings, the only consequence would have been, as the courts below noted, a fresh indict ment by a differently constituted grand jury. Although an absolute waiver rule might thus be justified, Rule 12(b)(2) does not go so far. Rather, it vests discretion in the district court to grant relief 18 See also, Henry v. Mississippi, 379 U.S. 443, 448 (indicat ing that failure to comply with a state rule requiring con temporaneous objection to the introduction o f allegedly illegal evidence serves a legitimate governmental interest and may bar review of the underlying claim ); Williams v. Florida, 399 U.S. 78, 80-82 (upholding a state notice-of-alibi rule, requiring the defense to notify the prosecution before trial o f prospective alibi witnesses precluded from introducing their testimony). 36 from the waiver on a showing of “ cause” . Where the defect could not have been discovered through the exercise of “ due diligence” (Shotwell v. United States, supra), or where the defendant was not represented by counsel, or was prevented by some “ incapacity, or some interference by officials” (cf. Brown v. Alien, supra, 344 U.S. at 485-486), it might well be an abuse of discretion, if not a violation of due process, to deny relief from the waiver provisions of Rule 12(b)(2). Here, as both courts below found, no justification has been advanced for non-compliance with Rule 12(b) (2), and no prejudice has been shown. Thus, the application of the waiver provisions was plainly warranted. The court of appeals decisions, cited by petitioner (Br. 25-28), which have granted relief in the face of state common law or statutory procedural rules similar to Rule 12(b)(2), are inapposite here. While as this Court held in Fay v. Noia, 372 U.S. 391, under the Supremacy Clause, “ [s]tate procedural rules plainly must yield to * * * [the] overriding federal policy” that the Court found was expressed in the fed eral habeas corpus statute (372 U.S. at 426-427), Rule 12(b) (2) was promulgated by this Court and accepted by Congress, and thus sets forth the “ overriding fed eral policy” as far as the claims asserted here by this federal prisoner (see supra, pp. 31-32 and n. 16; ct. United States v. Singer, 380 U.S. 24, 36-37) ; Hanna v. Plumer, 380 U.S. 460, 471).19 19 Moreover, the eases cited by petitioner (Br. 2o—28), in volved challenges to the petit jury as well as the grand jury. See, e.g., United States ex rel Goldsby v. Ilarpole, 263 F. 2d 71, 83-84 (C.A. 5), certiorari denied, 361 U.S. 838, holding that the 37 For similar reasons, the standard for holding peti tioner to have waived his claim cannot be the one he advances (see Br. 21-23)—that of a “knowing” and “deliberate by-pass” by petitioner personally. That standard, drawn from the habeas corpus statute (see infra, pp. 38-39), and wholly inconsistent with the language, history and interpretation of Rule 12(b) (2), would virtually nullify the provisions of the Rule. For it must be recognized that, while competent counsel will thoroughly review with his client the basic factual issues in the case and his general trial strategy, the constitutional right to legal counsel presupposes that the basic operative judgment on what procedural and legal objections should be made must be essentially the professional judgment of the lawyer. As Justice Harlan pointed out in his dissenting opinion in Fay v. Noia, supra, 372 U.S. at 471, willingness to respect only those waivers made by the “ defendant himself ex pressly” in a case in which he is represented by com petent counsel “ is to undermine the entire representa defendant’s failure to comply with a state procedural rule barred a collateral challenge to the grand jury, but not the petit jury. Cf. Henderson v. Toilet, 459 F. 2d 237 (G.A. 6), certiorari granted, October 10, 1972, No. 72-95, and Winter v. Cook, 466 F. 2d 1393 (C.A. 5), cited by petitioner (Br. 26). In Parker v. North Carolina, 397 U.S. 790, 798, decided after Fay and Kaufman, the Court left open the question whether a claim challenging the racial composition o f a state grand jury could be raised in a federal habeas corpus proceed ing where the defendant failed to comply with a state pro cedural rule similar to Buie 12 (b )(2 ). Contrary to petitioner’s claim Peters v. Kiff, supra, which involved a challenge to both petit and grand juries did not resolve the issue (see, infra, pp. 40-A2, n.n. 21-22). 38 tional system.” That comment is especially apt here where on appeal from petitioner’s conviction, the court of appeals underscored the exceptionally “ thorough” and “unstinted” representation petitioner received from his “ able counsel” (409 F 2d at 1101). We submit that it cannot be the law that Rule 12(b) (2) is of no force and effect unless the government shows that counsel fully discussed this particular claim with petitioner, and that petitioner himself “ knowingly” and “ intelligently” decided that there were no sufficient constitutional grounds to make it. O. DENIAL OF THE WRIT OF HABEAS CORPUS WOULD BE JUSTIFIED EVEN UNDER THE FEDERAL HABEAS CORPUS STATUTE. The same considerations which we have discussed above, we submit, would warrant a denial of habeas corpus relief even if Rule 12(b) (2) were not controll ing here. Under the habeas corpus statute the district judge has discretion to deny relief to an applicant “ under certain circumstances” {Fay v. Noia, supra, 372 U.S. at 438) : Discretion is implicit in the statutory com mand that the judge, after granting the writ and holding a hearing of 'appropriate scope, “ dispose of the matter as law and justice re quire,” 28 U.S.C. § 2243; and discretion was the flexible concept employed by the federal courts in developing the exhaustion rule. Fur thermore, habeas corpus has traditionally been regarded as governed by equitable principles. United States ex rel. Smith v. Baldi, 344 U.S. 561, 573 (dissenting opinion). Among them is 39 the principle that a suitor’s conduct in relation to the matter at hand may disentitle him to the relief he seeks.20 * * * The cases in which the “ knowing and deliberate by-pass” standard o f Fay v. Noia, supra, 372 U.S. at 439, has been applied to hold that a constitutional claim that could have been raised in direct proceed ings could nevertheless be raised collaterally involved objections which had a direct bearing on the deter mination of a defendant’s guilt or innocence. See, e.g., Kaufman v. United States, supra, where the defend ant’s defense was “ prejudiced by the admission of unconstitutionally seized evidence” (394 U.S. at 230); Fay v. Noia, supra, involving the admission of a coerced confession. We have already shown that the claim at issue here—an objection “ based on a defect in the institution of the prosecution” —is of a differ ent nature than objections that directly relate to the guilt determining process {supra, pp. 32-33, 35). This difference has found recognition in this Court’s repeated adherence to its holding that the right to indictment by grand jury, while important and significant, is 20 While the instant proceeding is brought pursuant to 28 U.S.C. 2255, which was enacted in 1948 to permit the habeas corpus petition to be filed in the district court in which peti tioner was convicted, it has been held to have effected no change in the scope o f the writ or the circumstances under which it should issue. United States v. IIayrna/n, 342 U.S. 205, 219; Kaufman v. United States, supra, 394 U.S. at 221-222. More over, the language o f 28 U.S.C. 2225, obviously contemplates the exercise of discretion in granting the relief provided {Kaufman v. United States, 394 U.S. at 232, n. 1, dissenting opinion of Black, J .). 40 not a “ ‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as funda mental.’ ” Palko v. Connecticut, 302 TT.S. 319, 325, quoting Snyder v. Massachusetts, 291 U.S. 97, 105; Hurtado v. California.-, 110 TT.S. 516; Peters v. Kiff, 107 U.S. 493, 499. This distinction between the nature of the claim asserted here and in other habeas corpus cases pro vides a basis for the exercise of the district court’s discretion even when no “ deliberate by-pass” by peti tioner personally has been shown. To the extent that the grand jury is “ designed as a means, not only of bringing to trial persons accused of public offences, but also as means of protecting the citizen against unfounded accusation * * * ” (Ex parte Bain, 121 U.S. 1, 11, quoting a grand jury charge of Justice Field) ; United States v. Dionisio, No. 71-229, decided Jan uary 22, 1973 (slip op. p. 15, n. 15), the district court can readily determine from a review of the record whether the indictment was “ unfounded.” In the instant case for example, it is plain that peti tioner, who was caught in the act of burglarizing a bank, has suffered no prejudice from the manner in which the grand jury was selected. Any grand juror, black or white, faithful to his oath, would have voted a true bill.21 21 Compare Peter's v. Kiff, supra, which involved a claim of discrimination in the selection of the petit jury as well as the grand jury. The Court, permitting collateral attack, stressed “the great potential for harm latent in an unconstitutional jury- selection system, * * * the strong interest o f the criminal de fendant in avoiding that harm,” and the impossibility of 41 It is, of course, true that the “ exclusion of Negroes from jury service, like the arbitrary exclusion of any other well-defined class of citizens, offends a number of [other] related constitutional values.” Peters v. Kiff, supra, 407 U.S. at 498. Such “ exclusion” denies the class of potential jurors the “ privilege of partici pating equally * * * in the administration of justice” (Straucler v. West Virginia, 100 U.S. 303, 308), and “ it stigmatizes the whole class, even those who do not wish to participate, by declaring them unfit for jury service and thereby putting ‘a brand upon them, affixed by law, an assertion of their inferiority.’ ” Peters v. Kiff, supra, 407 U.S. at 499. To withhold any remedy for such a violation, even if a timely objection were made, unless the defendant showed actual personal prejudice would impair the vindication of those other constitutional interests. Accordingly, where “ timely ob jection has laid bare a discrimination in the selection of grand jurors” (Hill v. Texas, 316 U.S. 400,406), this determining “what, jury would have been selected under a con stitutionally valid selection system, or how that jury would have decided the case” (407 U.S. 504). The grand jury and petit jury, however, perform significantly different functions in our system of criminal justice. While it may be impossible in some cases to say that a properly selected jury would have reached a unanimous decision to convict, it is clear beyond any “ reasonable doubt” (Chapman v. California, 386 U.S. 18) that 12 of 23 grand jurors (representing a cross section of the com munity) would have voted to indict an individual caught in the act of burglarizing a bank. Confirming the view that the indictment against petitioner could not have been the conse quence of racial prejudice against him as a Negro is the fact that the same grand jury also indicted his two confederates, both white. 42 Court lias held that a defendant need not demonstrate prejudice in an individual case. Ballard v. United States, 329 U.S. 187,195. But those policy considerations do not support a holding that even without prejudice, the claim may be made on collateral attack, after his conviction when retrial may be practically impossible. As in this case, such a holding might give petitioner an un warranted windfall—practical immunity for his crime because of his delay in challenging the proceedings— while at the same time vindicating none of the rights of allegedly excluded citizens—since the system he wants to challenge was actually abandoned years ago. Under these circumstances, we submit, “ it is entirely proper” both under Rule 12(b)(2) and 28 U.S.C. 2255 “ to take absence of prejudice into ac count” (.Shotwell Mfg. Co. v. United States, supra, 371 U.S. at 363) in determining whether to permit col lateral relief.22 At this point considerations favoring 22 Peters v. K ijf, siupra, upon which petitioner relies (Br. 20) does not require a contrary result. There it was held that a white defendant could challenge the exclusion of blacks in the selection o f the Georgia grand and petit juries where the claim was not raised at trial. But Peters v. R iff involved a claim that had been consistently rejected by “ state courts and lower federal courts” (407 U.S. at 496, n. 4). In such circumstances, this Court has held the failure to make an otherwise useless objection in the state courts is insufficient to bar relief. See e.g., O'Connor v. Ohio, 385 U.S. 92, holding that a defendant’s “ failure to object to a practice which Ohio had long allowed cannot strip him of his right to attack the practice following its invalidation by this Court.” The right o f blacks to assert the claim at issue here “ has been recognized and enforced by 43 the finality of judgments of convictions become com pelling, The President’s Commission on Law Enforce ment and the Administration of Justice, Task Force Report: The Courts, 45-47 (1987). See, also, Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 452 (1963) ; Friendly, Is Innocence Irrelevantf Collateral Attack on Criminal Judgments, 38 II. Chi. Law Rev. 142, 146-150 (1970) ; Amsterdam, Search, Seizure, and Sec tion 2255: A Comment, 112 II. Pa. L. Rev. 378, 387 (1964). In sum, we submit that the three year delay in the assertion of a claim that could have been discovered through the exercise of “ due diligence,” 23 and the clear absence of prejudice, would warrant the exercise of the district court’s discretion to deny the petition even without regard to the express waiver provision of Rule 12 (b )(2 ).24 When, along with these facts, it this Court [and lower federal courts] for almost a century” (Pet. Br. 13). Moreover, as noted supra, n. 21, Peters v. Kiff also in volved an objection to the petit jury. 23 Cf. Illinois v. Alien, 397 IJ.S. 337, 351 (concurring opinion o f Mr. Justice Douglas), noting that while “ lapse o f time is not necessarily a barrier to a challenge o f the constitutionality o f a criminal conviction * * * in this case it should be.” 24 The fact that the error is “harmless” would under well settled law warrant the denial of collateral relief. The Great Writ plainly does not issue to cure harmless error. See, e.g., Chambers v. Maroney, 399 IJ.S. 42, 52-53; United States ex rel. DiRienzo v. Yeager, 443 F. 2d 228 (C.A. 3 ) ; Doruney v. Peyton, 451 F. 2d 238 (C.A. 4 ); Lawrence v. Wainwright, 445 F. 2d 281 (C.A. 5 ); Myricks v. United States, 434 F. 2d 629 (C.A. 6 ); Ethington v. United States, 379 F. 2d 965 (C.A. 6 ); Metropolis v. Turner, 437 F. 2d 207 (C.A. 10); Wap-nick v. United States, 406 F. 2d 741 (C.A. 2). This, o f course, is 44 is not alleged that there was deliberate exclusion of Negroes from the petit jury, and that the system used for the selection of jurors, which petitioner attacks, has been replaced, the exercise of the court’s discre tion to deny relief is compelling. CONCLUSION For the foregoing reasons, the judgment of the court of appeals should be affirmed. Respectfully submitted. E rw in N. Griswold, Solicitor General. H enry E. P etersen, Assistant Attorney General. E dward R. K orman, Assistan t to the Solicitor General. Sidney M. Glazer, J ohn J. R obinson, Attorneys. F ebruary 1973. another factor which distinguishes the instant case from Kauf man. While the Fourth Amendment’s exclusionary rule, like the rule against discrimination in the selection o f grand juries, has been held to reflect “ a number of related constitutional values” (Peters v. K iff, supra, 407 U.S. at 498), independent of the defendant’s right to a fair trial ( Terry v. Ohio, 392 U.S. 1, 12-13), it is settled that collateral relief is not available i f the admission of the illegally seized evidence did not prejudice the defendant significantly. Chambers v. Maroney, 399 U.S. 42, 52- 53. There is no reason for applying a different rule here. 8 ,S . GOVERNMENT PRINTING OFFICE: 1973