Davis v. United States Brief for the United States

    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