United States v. Frady Court Opinion
Working File
April 5, 1982

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Case Files, Bozeman & Wilder Working Files. United States v. Frady Court Opinion, 1982. ea3c103d-f092-ee11-be37-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4c55446b-861e-4ec8-8fdf-f728a0ffb013/united-states-v-frady-court-opinion. Accessed July 11, 2025.
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f R^tN zKSo€. 81970 ',1" ( L i sl'rc ( ,t . ..- i,,t t. NOTE: 'ir'herr it is fersiblc. r sl'llabus theednotet sill be released. as is beinq donc in connxlion s'ith this cse. rt the time the opiruon rs issued.| ]1,'j'IiiH'flHL'li'.i"ff,31ii::ti?".Hjili,tl'*L.,: Hff" os / 1-,r| ( (... Lirrtcd Statec t.'Dctutt Luatr.r Co..200 U. S. 3el. $?. STPREN/M COURT OF THE t]NIlED STATES Syllebus UNITED STATES V. FRADY CEBTIORAzu TO fiTE UNTTED STATES COI'BT OF APPEAIS FOB TIIE DISTRICT OF COLIIMBIA CIRCUTT No. 80-1595. Arped Deeember 8, 1981-Decided April 5, 1982 In 1963, respondent was convicted of firstdegree mr:rder and sentenced to death by a jury in the Federal District Corrrt for the District of Colum- bia, which at that time had exciusive jruisdiction over local felonies com- mitted in the District. The Court of Appeds for the Distriet of Colum- bia Circuit, which then acted as the local appellate court, upheld the conviction but set aside the death sentence, and respondent was tien re- sentencd to a life glt filed the present motion in the District Cour:t unde (the latest in a Iong series of col- Iateral ettacks on his sentence), seeking to vacate the sentence on the groud that he was conlqtd_U_Li meanins of mdice.#' slaushter- yedicL Cited 42 CCH S. Ct. BulL p. gqfegin&relief on direct appeaJ and, finding the chdlenged instnrc- tion plainly erroneous, vacated respondent's sentence and remanded the case for a new trial or entry of a mansleughter judgment. Held: 1. This Court has jurisdiction to r.eview the decision below, and is not required to refrzin from doing so on the ground that the decision of the Court of Appeals was based on an adequate and independent local ground of ciecision. There is no basis for concluding that the miing be- low was or should have been grounded on locd District of Columbia law, rather than on the general federal law applied to all $ 2255 motions. The Equd hotection Clause does not require that a $ 2255 morion by a pris- oner convicted in 196i1 be treated as though it wer"e a motion under the District of Colunbia Code after 1970. Pp. L9. smndens failed to chdlence rhe instmcdons on direet aooed or in prior.-- motions. r The Coun of @ns iFAt-ifi e propei -starit- iffifi;ly to respondeni'i ctaim was the ?Eq!rro5,'rt-a"ia of Fed- AI, 'ur:no { aty bf 81971cited 42 ccH s. ct. Bull. p. UNITED STATES U. FRADY SYllabus lr ' f ' Lr\ l, l{ ,' ( \' of the i has been,t affrmance of the app€al t!. 10-14. 3. The pnoPer standad for rcview of respondent's conviction is the I' sendard under which, to obtain collateral r o contemporaneous objectiolt 111 *Ja, " *n"icted defendant must show both..cause" excusing his double ;;";;urri defauit and lactual prejudice" resulting from the erors of which he comPlirins. h. 15-1?. ;. B;;p;;'";t has failen far shoft of meeting his b,rden of showing not r"r.iy that the e6o6 at his Eial cleared a pos-sibility of prejudice ;;i,il ti"y worked to his actual and substantial disadvantage. infect- ;; hi";t;; trial with er:ror of constitutionai dimensions' The suong uiicontradicted evidence of malice in the record' coupled with respond- ent,s utter failure to come forward n"ith a colorabie claim that he acted *ithoot malice, disposes of his contention that he suffered such actual ;;;j,;di.J,f".".ir"i of his conviction 19 years later could be justified' tioi*r"r, an examination of t]le jury instructions shows no substantial likelihood that the same jury that iound respondent guilty of f:rst{".9* murder would have .on.tri"d, if only rhe mdice instmctions had been 'o"ttti t ","a, that his crime was only mansiaughter' fr' l1-2" - U. S. App. D. C.-, 636 F' 2d 506' reversed and rernanded' O'CoNNoB, J., delivered the opinion of the Cor:rt' in which Wrrre' PowEu, REIoIQUIsT' and Sravixs, JJ'. joined' STEvENS' J" filed a ;;;;;g. .pG. Bucnrux, J., filed an opinion concuring jn the iJg,r;: Bapr*x^rr, J., frled a dissenting opinion' Buncsn' C' J" and "lr1filn^r.r* J., rook no part in the consicleration or decision of the case. 2. The Cor.ut of Appeais' use of Rule 52(b)'s '!lgh erorr'.standard to review respondent's 0 2255 motion was conlt?ry]o long'€stabryl* o1: plece 81972 Cited 42 CCH S. Ct. BulI. p. SI]PRENIE COT]RT OF TIIE III{ITED STCIES No. 80-1595 UNITED STATES, PETITIONER U. JOSEPH C. FBADY ON WRrI OF CERTIORARI TO TIIE UNITED STATES COURT OF APPEAIS F'OR TIIE DTSTBIC'T OF COLLIMBTA CIRCUTT [April5, 1982] Jusrrcg O'Coi.tNoR delivered the opinion of the court. (nrt. 52(Df the Federal Rules of Criminal Procedr:re per- rdts a crimfnai conviction to be overturned o&gilgg!-plpsal rbr "plam-eror' in che jury instmctions, .u.ffidE]EiiI- ant failed to object to the erroneous-instmctions before the jury retired, 6 required by@ule aQ m this case we are asked to decide whether the same standard of review appiies on a collateral challenge rto a criminal conviction brought under %V. S. C. $2255. I A Joseph Frady, the respondent,. does not dispute that nine- teen years ago he and Richard Gordon killed T-qlq3aEgrr4gI_ in the front room of the victim's house in Washington, D. C. Nonetheless, because the resolution of this case depends on what the jury learned about Frady's crime, we must briefly recount what happened, as told by the witnesses at Frady's trial and summarized by the Courlof Appeals. See Fradgrvfl United States (Frady I), Lzl U._S._App. D. C. 78, 348 F. ,Ll 84 (en banc), cert. denied, 382 U. S. 909 (1965). The events leading up to the killing began at about 4:30 p.m. on the afternoon of March 13, 1963, when two women saw Frady drive slowly by Bennett's house in an old car. Later, at about 7:00 p.m., Frady, accompanied by Richard citcd 42 ccH s. ct. Bull. p. 81973 UNITED STATES U. FRADY Gordon and Gordon's fiend, Elizabeth Rydel' returned to the same block. on this second trip, Ryder overheard i:*a, ."y ,.something about- that is thc house over there," at ;il;i poirt roav .ria Gordon looked in rhe direction of the victim's house. .lfta, reconnoitering Bennett',s home, Frady, Gordon, and Ryder drove across town to a restaurant' where they were ;;il; Uy C"o"g" Berurett, Thomas -Bennett's brother' At ifr. t..tir*rrt fryder heard George Bennett teii Frady that ,.he needed time to get the furniture and things settled." sh" fu heard r*ai ask Bennett ,,if he hit a man in the .frlri .orfd you breal a rib and fracture or puncture.a lung, could it kill a person,,? Bennett answered that ..you have to tit "-** p""fty hard." Just before they Ieft the restaurant' R;6[&d 6orge Bennett say:."If you do a good job you will get a bonus." nVJ*, Gordon, and Frady then set out by car for llth pr".L, .i.ound the comer from Thomas Bennett',s home, ;h;"; they parked, leaving the motor running' Gordon and Il;t totti nyder ih"y *"i. goTg'!ust around the corner"' As Gordon got out, Ryder saw irim reach down and pick up ,o*"tti"g. She could not see exactly what it was',but it ioof."a Uf. . cuff of a glove or heavy material of some kind." Alittleafter8:30p.-t.,aneighborheardknockingatthe front door of Benne-tt s house, fo-llowed by the-noise of a fight i.-p"G.... At 8:44 p.m.. she cailed the police' Within a .o,ipte=of minutes; two policemen in a p"t:ol Yago.larrived' and one of them got oot in time to see Frady and Gordon emerge from Bennett's front door' tnslae Bennett's house, police officers later found a sham- blesofbroken,disorderedfurnitureandblood-spattered ;rU.. Thomas Bennett lay dead in a pool of biood' His n".i. *a chest had suffered horseshoe-shaped wounds from tir" t.tA ireel plaies on Frad/s leather boots and his head *as carea in bjt blows from i broken piece^ of a-table top' *fri.t, significantly, bore no fingerprints' One of Bennett's eyes had been knocked from its socket' 81971 cited 42 ccH S. Ct. BulI. p. UNITSD STATES u. FRADY Outside,the policeman on foot heard Frady and Gordon ex- claim, "The cops!" as they emerged from the house. Ttrey immediately took flight, nrnning around the corner toward their waiting automobile. Both ofHcers pursued, one on foot, the other in the police wagon. As Frady and Gordon ran, one of them threw Thomas Bennett's wallet and a pair of gloves under a parked car. Frady and Gordon managed to reach their waiting automobile and scramble into it without being captured by the officer following on foot, but the patrol wagon arrived in time to block their departure. One of them was then heard to remark, 'They've got us." When ar- rested, Frady and Gordon lvere covered with their victim's blood. Unlike their victim, however, neither had sustained an injury, apart from a cut on Gordon's forehead. B Although Frady now admits that the eviclence that he and Gordon caused Bennett's cieath was "overrilhelming,"t at his trial in the United States District Court for the District of Columbia Frady defended solely by denying all responsibility for the killing, suggesting through his attorney that another man, the real murderer, had been seen leaving the victim's house while the police were preoecupied apprehending Frady and Gordon. Consistent with this theory, Frady did not raise any justification, excuse, or mitigating circumstance. A jury convicted Frady of flrst-degree murder and robbery, and sentenced him to death by electrocution. Sitting en banc, the Court of Appeals for the District of Co- lumbia Circuit upheld Frady's first-degree murder conviction by a vote of Ll. Frady I, supra. Apparently ail nine judges wouid have affirmed a conliction for second-degree murder.2 'Brief for Appellant in Frady v. United Slales, No. 7L2356 (CADC), p. LZ @ro se). 'The soie dissenter. Judge J. Skelly Wright. noted that under the law of the District of Columbia an'tnrent to inflict serious injury, unaccompanied 81975citcd 42 ccH s. ct. Bull. p. UNITED STATES U. FRADY Nevertheiess,byavoteofS-l,thecourtsetasideFrad/s death sentence. The five judges in the majority were unabie to agree on a rationaie for that result' Four of the flve be- tievei the procedures used to instmct and poll the jr:ry on the death p.n"lty were too ambiguous to sustain a sentence of death.i Thofifth and deciding vote was cast by a judge who believed the District Cotrrt shouid have adopted, for the flrst time in the District of Columbia, a procedure bifurcating the Orrf, *a sentencing phases of Frady's trial' Id"' at 85' 348 F. ia, at 91 (McGowan, J., concutring)' By this narrow margin, Frady escaped electrocution Fiady was then resentenced to a life term. Almost immedi- ately, ire Uegan a long series of c@on his sen- tence,' cuiminating in the case now before us' C Frady initiated the present action by bringing a motion bv oremeditation, is su.fficient for second degree murder' but 6rst degree J#;;;;;,'r" "aaiir* to premeditation, the specific intent to kill"'-F;;i ".untted stateil-iiavit, rztu' 9' epp' D' c' 78' el n'.13' 348 f. zign. fi n. 13 (Wrisht. J., aissenting in part and concurring in part) (citations omitted). cert". aeniea, 382 U' S' gOg (1965)' Because Judge WrigfriU"U"ved the evidence suffrcient only to sustain a verdict that Frady a"-fii"""t.fy intended,o ,:* Ttromas Bennett' Judge Wright w-ould-have reversed Frady's conriction for first'degree murder' Id' ' at 9l' 348 F ' 2d' at tl.--,ii dirr"nt. TrrE Cgrer Jusrtce (who was then ser"ring as a Circuit Jrdg. ;; the Court of Appeals)' characterized that view as having "no basis nithout "n ,".o.piiin that these jurors.*'ere illiterat: ,I:::::'- in part). ii.,-^ttW,A48 F. 2d, at 113 (Burger, J., concuring in pan and dissenting -'t:;rrrrtt ed by the Court of Appeals' 204 U' S' App' D' c' 234' 236 o. i. seo F. 2d 506. ;OA n. Z (1980), FradV 6led fgur ^tno=tio.1s=lo vlFle*,:r -{pp. D. C. ZB'1. %61 motions to vacate or { of APPeds decision directing that Frady's separate ."n .n"". for robbery '"1 'yl"i T",:?":Y,"lty rather t]ran consecuriv.ty. ctrrtra states v. Fmdy (Frudy //), 1917 u' s' App. D. C. 69. 607 F. 2d 383 (1979)' { 81976 citcd 42 ccH s. ct. BulI. p. ,, ('" \ UNITED STATES t" FR^A'DY under 28 U. S. C. $ 225:0' seeking the vacation of his sen- tenee because the jury instrrrctions used at his trial in i963 *ere aefectlre. Siecifically, Frady argued that the Court of Appeals, in cases decided after his trial and appeal' had dis- apj"ouea instnrctions identicai to those used in his case. As , e;.*ri"ed by these later mlings,'the judge at Frady's trial / fr"Ji.p"op".iy equated intent with malice by stating that "a *"orreiul ict . . . intentionally done . . . is therefore done t *iti, or"ti.. aforethought." See 204 U' S' App' D'.C'.?34' ' Zg6 n. O, OgO F. 2d 506; 509 n. 6 (19g0). Also, the trial judge had inconectly instnrcted the jury lhat "the law infers or f...o*., foom the use of such weapon in the absence of Lxphnatory or mitigating circumstances the existence of the *"Ii.. essential to cuipable homicide.,, See id., at 236, 636 r. za, at 508. In his $ 2255 motion Frady contend.ed that these instnrctions eompelled the jury to presume malice and thereby wrongfully eiiminated any possibriilV 9f a man- ,t"rgirier verd'lct, .irr.. ,-rlaughter was defined as culpa- ble homicide without malice.' 'Section 2255 provides in peninent part that: ,,A prisoner in custody uncler sentence of a court established by Act of C";g.r; claiming the right to be released,pon the ground that the sen- t"n.Z *". imposed in vio'iation of the Constitution or laws of the United States, or thai the co,rt was without jurisdiction to impose such sentence, or that the sentence was in excess of the ma.ximum authorized by law, or is othenrise subject to collateral at'tack. ma]' move the court which imposed the sentence to vacate. set aside or corect the sentence"' 'Frady cited B€lto?r v. United Sfotes, L27 lJ' S' App' D' C' 201' 2}l-;m5: B8Z F. Zd tio, 153-1tl (1957): Green v. Linited States (Green I), iiz u. s. App. D. C. 98, 9F100, {05 F. 2ci 1368. 136e-13?0 (1968): and inttedsrates v.wharton, t39 U. S.App.D. C.293.297-298,433 F.2d 151, {A5-156 (19?0). The Govemment ilo". not contest Frady's assenionl tt"i tir" jury insmtctions were erroneous as clerermined by these late! rulings. 'Sie, e. g., Fryer v. (JnitedStofes, 93 U. S' 'tpp' D: t' 3'l' T' 201 .F ' 2d B4;fub. ."n. a"ni"a. B4O U. S. 885 (1953) (manslaughter is 'the unlaurfiri kiiling of a human being without 1n{!9e'] tgmqhasis deieted); United States iiiloaon, tSg U. S.ipp.D.C.293,296,133 F. 2d 151, {&l0.970) (md- 81977 Court of Appeds reversed. The court held that the proper standard to apply to Frady's claim is th{,lain erro5,}taPd; Cited 42 CCH S. Ct. Buil. p. UNITED STATES U. FRADY The District Court deniecl Frady's $ 2255 motion. stating that Frady should have challenged the jury instntctions on direct appeal, or in one of his many earlier motions. The ard relief on dj fro m-ilrro rs no t "o b i Jffi i il6lTg?6;andDivis v. United States,411 U. S. 233 (1973), relief on followi fault at d instmctions to be plainly erroneous, the court vacated Frad/s sentence and re- manded the case for a new trial or, more realisticaliy, the en- try of a judgment of manslaughter. Over a vigorous dissent, the full Court of Appeals denied the Government a rehearing en banc. We granted the Government's petition for a writ of certio- rari to review whether the Court of Appeals properly in- voked the 'llain enoy'' standard in considering Frady's be- lated coilaterai attack. II Before we reach the merits, however, we flrst must con- sider an objection Frady makes to our grant of certiorari. Frady argues that we shouid refrain from reviewing the deci- sion below because the issues presented pertain solely to the ice is *the sole element differentiating murder from manslaughtey''). Frady also challenged the trial juclge's instruction that: "A person is pre' sumed to intend the natual [and] probable consequences of his act." See 204 U. S.App. D. C., at 87 n.7,636 F. 2d, at 509 n. ? (1980). Frady argud that this instmction w:ui unconstitutional under our decision in Sandstrom v. Montana,l42 U. S. 510 (1.979), in which we heid that a simi- Iar instnrction that "[t]he law presumes that a percon intends the ordinary cons€quences of his voluntary acts" might lmpermissibly lead a reasonable juror to believe the presumption is conclusive. The Corrrt of Appeals re' frained from deciding this issue, however, so we do not consider it here. rat 81978 Cited 42 CCH S. Ct. Bull. p. UNITED STATES u. FRADY Iocal law of the District of coiumbia, w.ith which we normally do not intert'ere." Frady's contention is that the federal cou:ts in the District of columbia exercise a pr:rely local jurisdictional r,rn.tion when they nrie on a $ 22EE motion brought by a prisoner con- victed of a local law offense. T'hus, aclording t'o Frady, the general federal law controlling the dispositioi of $ 22Si mo_ tions.does !9! apply to his case. Instead, a splcial local brand of $ 2255 law, developed to implement that'section for the benefit of local'offenders in the District of columbia, con-trols. Frady conciudes that we should therefore ,.r""u from disturbing the nriing below, since it is based on an ade- quate and independent local ground of decision., To examine Frady's contention, it is necessary to review some history. when Frady *as tried in r968,'the united states District court for the District of columbia had .-*.ro- sive jurisdiction over local felonies, and the united Strt., 9oqt of Appeals for the District of columbia circuit a.i.a ".the local appellate court, issuing binding decisions oi p*.tv locai law. In 19?0, however, ttre oistrict of columbia'court Reform and Criminal Procedure Act (Court Reform Aci), S4 stat. 473r split the local District of columbia and feJeral criminal jurisdictions, directing local criminal cases io a newly created local court system and retaining (with minor exceptions) only federal criminal cases in the .*i-.tirrg Federal District Cor:rt and Court of Appeals. As part of this division of jurisdiction, the court Beform Act substituted for $ 2285 a new loeal statute controiling col- 'As we said in Fisher v. united'States, 32g u. s. 469, {?6 G946): ,.Mat- ters relating to law enforeement in the District [of columbia] a"e enrrustea to the couns of the District. or:r poricy is not to interfere with the roeal nrles of law which they fashion, sarl in exceptional situarions *treie egre- gious eror has been committed.,' _ -'_fody, of course, cloes not argre that we do not have juriscliction under 28 u. s. c. $ 12tl (l) to hear this case, only that we shourd, in our discre. tion, rcfrain from exercising it. citcd 42 ccH s. ct. BuIt. p. UNITED STATES t'. FRADY lateral relief for those convicted in the new iocal trial court. See D. C. Code $23-110 (1981). The Act, however, did not alter the jurisdiction of the federal courts in the District to hear postconviction motions and appeals brought under in55, either by prisoners like Frady who were conlicted of local offenses prior to the Act, or by prisoners convicted in federal court after the Act. The cnr.x of Frad/s argument is that the Equai Protection Clause would be violated unless the Court Reform Act is in- terpreted as implicitly and retroactively splitting, not just the District's court system, but also the Districtis law gov- erning 92255 motions. Aceording to Frady, rhe Equal Fro- tection Clause requires that a $ Z2SE motion brought by a prisoner convicted of a local crime in Federai District court prior to the passage of the Cour:t Reform Act be treated iden- tically to a motion under iocal D. C. Code $ 2B-110 brought by a prisoner convicted in the local Superior Court afler the pas- sage of the Act. Fracly suggests that the Cor:rt of Appeais for this reason must have nrled on his motion as though it were subject to the local law developed pursuant to $ 28-110, and that we should not intenrene in this locai dispute. Frad/s argument, however, was neither made io the court below nor foilowed by it. Nowhere in the Court of Appeais, opinion-or in the submissions to that court or to the district court'o-is there any hint that there may be peculiarities of g?255law unique to collateral attack in the District of Colum- bia. To the contrary, the analysis and authorities cited by the Court of Appeals make it clear that the court reiied on the generai federal law controlling all $ 2255 motions, and did not intend to afford Frady's gJ;Sd motion special treatment simply because Frady was convicted under the District of Co- lumbia Code rather than under the United States Code. '' We note that Frad/s winning pro se bief to the court below, chough e-\tensively discussing the generd federal law regartling the proper clispo- sition of $ 2255 motions, nowhere suggested rhat speciai local nries shouid be applied to the case. 91979 8r980 Cited 42 CCH S. Ct' Bull' P' UNITED STATES U. FRADY Moreover, the Court of Appealsr-\1'oulcl have ened had' it done so. There it n" reaso" to believe that Congress m- tended the result f"ay =oggests,' and he does not attempt the impossiUfe tas't<'li"it-ffiS that it did' Furthermore' Frad/s .oggtt"oit-io ii" c6ntrary-not*ithtt"nding' the Equal Protectron'Crt'i'"-a*t *t "quire that a- motion brought pursuant'- it-S Zm !t .' p"itoit" convicted in the Federai District ct*i;igob te'trl;;; "t though it had been brougi,t p*l"ilti"blc' coa" ii*i10 after 1970' In fact. even those ffitl";-ita"*i to"t contemporaneousiy with those trita ror'itt o*t :-**:I tie tocai court need not always ue trelii^iatiiLuv' As we noted in Suodn v' Presslev,4Sg u i' iza izg-3ao n'-iz (19?o' for example' Dersons .ontttto-i" ir" r*"r courts-are not denied equal pro- iection of the h*;'diy-b"ttot"'hev' uniike persons con- victeci in the ftat"A-toi'rts' must 'Orini c'oliateral challenges fiff;;;ri.tiont u"fore Art' t juas;'.oncluding that the'" rt ilor*, we find no basis whateve H:li'.'ffiil * l*[1riff:#13i#i'{ffi ;1i:h;;ilD55 motions'" rher merits. ffi"or.AppearslT^ll:^,.:.*::*S"14*,:rTH:,:T.;fi H l?? ilS.Hl.B:t:til ffi ",:"t'?11'nili'r'o''*' not toca' ba* Iaw aoplies to - "pp"tti"l t""J"ta of a local;ff;" in fecleral cou:t' despite tt" r".t that the "fl'#il;i''' "ppri"t to those convicted of the same *: w: Hilii:t H*",gI #, UIT ;!:LI !:1{}illtixmore favorable to i,."" " r".a sa-riilmffi' il" Igt"":.i:S#ftlT.3l'Hi'"'iff '-Bni"fr ":|ir:f,';lilt!'"'riiil;;";;;to-$255'andwe mav therefor" '"rv l'n=t*f**t"11sllirialIt Jt'" Butlctv' Cnited ff 1;:8i;'d S':ffi ::Tin *:it"n:Y:'E ""IiX {t I similarities betwe minded trs: {he ffiil:il;" 9r.t"i11a law in matters not affected bv ."-".J..i"""r "*Tilffi:ii*:dh. ,; :.r:l:': peculiarrv or rocar concenL" Fisht' citcd 42 ccH s. ct. BuIl. p. LINITED STATES T.. FRADY III A may be had to the nrle d-y on appeal'fr;rn"r'irrjil in" the "No party may assign as error any portion of the chargeor omission therefrom unless he tbjects thereto b"f;; :|| r5. ::,T :,.r:., ^.,-o n.ict ey .it s u."ai.i, st a tin g ai. t..iiythe matter ro whjch he objects ;J;iJ;ffirdr';i hiqbjection. " w-ozl9j-lowever, somewhat tempe$ the severity of Rule30. . It- grants the courts of Appeal! the latitude ro correctparticularly egregious er?ors on appeai r.g*di... J" a.r"n-dant's trial defauit: "Plain errots or defects affecting substantial rights maybe noticed aithough they were n'oi urougrrt to the atten-tion ofthe court." Ruie 52(b) was intended to afford a means for the promptredress of miscariages of justice.; riy-itr-r;il;J;."*" Bl 981 Nineteen years after his crime, Frady now complains he ,:T^:.:T!d bI a jury.eroneously instmcted on rhe mean- on direet "'The n:le -merely restated existing Bl 982 UNITED STATES T.. FRADY elict in countenancing it, even absent the defencrant's timeiy assistance in detectins it. The ruiffi N, balancing of our need td encourage ar trial participants to ,l)t seek a fair and aceurate trial the first time around against our tT.(\ insistence that obvious injustice be promptly redreised.'r ,.afl,fl Because it was i how.ever,/ "$^" the "plain enof' standard is out of plGThen-a prisoner launches a collateral attack against a criminal conviction after society's legitimate interest in the finality of the judgment has been perfected by the e.rpiration of the time aiiowed for direct rerriew or by the affirmance of the conviction on ap- peai. Nevertheless, in 1980 the Court of Appeals applied the 'llain enoy''standard to Frady,s long-delayla S Z55 ,no- tion, as though the clock had been turnecl back to 196b when Frady's case was first before the court on direct appeal. In effect, the court ailowed Frady to take a second appeal fif- teen years after the first was decicled. As its justification for this action, the Cor.rt of Appeals pointed to a singie phrase to be found in our opinion n Dauis v.Unite! States,4tl U. S. ZBg, Z4C-iZ{.J (19?B). ThereG asserted-TE5o more lenient standard of waiver shouid applf'on collateral attack than on direct review. Seizing on this phrase, the Court of Appeals interpreted ,,no more- le- nient" as meaning, in effect, no more stringent, and for this cited 42 ccH s. ct. Bull. p. ''The Courts of Appeals long have recognized that the power g::anted them by @.lztul-s-to be used sparingly, solely in those circumstinces in,:ule oz\o, tS P Oe Pewhich a miscarriage ofjGtlie nroilforTir-n"ise resuit. see, e. g., (Jnited, Or-t-- -- ^ ('Plain erfriE er:'or which is'both obvious and substantial'. = error nrie is not a run-of-the-mill remedy. The intention of the nrle is to serwe the ends of justice: therefore it is invoked 'onllr in exceptional cireumstances [where necessaryl to avoid a miscarriage of justice'." (citations omitted)). cer.t. cle- nied, '150 u. s. 920 (198r): Linited sfales v. DiBened,etto, atz F. 2d490, 494 (CA8 1976) ("This cou:t. along uith eourts in general. have applied the plain eror rule sparingly and only in situations where it is necessary to do so to prevent a great misca:riage of justice." (citations omitted)). Cited 42 CCH S. Ct. BulL p. UNITED STATES t'. FRADY reason applied the "plain elToy''standard for direct review to Frady's collateral challenge, despite long-established con- trary authority. -,-.-\ . By adopting the same standard of review for $ 2255 tito- - \ tions as wouid be applied on direct appeal, the Court of Ap \ peals accorded no significance whatever to the existence of a LnnA judgment perfected by appeal. Once the defendant's chanrse.ltqaDped has been lBiyed or e{haustlcs!, however, we are entitied to presume he stands fairiy and finaily convicted, especiaily when, as here, he already has had a fair opportu- nity to present his federal claims to a federal fomm- Our trial and appellate procedures are not so unreliable that we may not afford their completed operation any binding effect beyond the next in a series of endless post-conviction collat- erai attacks. To the contrary, a final judgment commands respect. For this reason, we have Iong and consistently affirrned that a not do serwice for an See, a. 9., United States v. A (19?9); Hill v. United States,368 U. S. 424, 42U29 (1962); Sunnl v. Large,332 U. S. 174, 181-182 (.1947); Adams v- t|nited States ex rel. McCann, 317 U. S. 269, 274 (1942); Glasgout v. Moyer,225lJ. S. 420, 428 (L912); Matter of Greg- ory, 2L9 U. S. 2L0, zLB (1911). As we recently had occasion to explain: "When Congress enacted $ 2255 in 1948, it simplified the procedure for making a collateral attack on a find judgment entered in a federal criminai case, but it did I not purport to modify the basic distinction between di- I rect review and collateral review. It has, of course, EerA attact on a flnal The reasons for nar- rowly limiting the grounds for coilateral attack on final Br 983 c0\ re- Bt 984 Citcd 42 CCH S. Ct. BulL p. UN1TED STATES U. FBADY judgments are well Isrown and basic to our adversary system of justice." United States v. Addonizio, 4a2 U. S. 178, 184 (1979) (footnotes omitted). This citation indicates that the Court of Appeals' ened in re- viewing Frady's S 2255 motion under the same standard as would be used on direct appeal, as though collaterai attack and direct review were interchangeable. Moreover, only five years ago we expressly stated that thel plain error standard is inappropriate for the review of a state I prisonerrs collateral attack on erroneous jury instntctions: - J "Orderly procedure requires that the respective adver- iaries' views as to how the jury should be instnrcted be presented to the triai judge in time to enable him to de- liver an accurate eharge and to minimize the risk of com- mitting reversible enior. It is the rare case in which an improper instnrction will justify reversai of a criminal conviction when no objection has been made in the trial court. "The Aurden of demonstratin4 that an etrsrteou,s in' stnr,ction u)as so prejudicial that it will support a collat' eral attack on the constitutional ualidita of a state csurts julqment is wm greater than the shwing re- quired to establish plain error on direct appeal." Hen' - dercon v. Kibbe,4:11 U. S. 145, lil (197? (emphasis Seemingly, we could not have made the point with greater clarity. 0f course, unlike in the case before us, in Kibbe the @ not a federai, court was under at- tack, so cogriderations of comiW were at issue that do not constrain us here. But the Federal Government, no less than the States, has an interest in the finality of its criminal judgments. In addition, a federai prisoner like Frady, un:J like his state counterparts, has already had an opportunity to_l$'$ citcd 42 ccH s. ct. Buu. p. UNITED STATES u, FRADY on-9ry a prefemed .status when they relief. trial and a fo- pns- seek post-conviction Br 985 In sum, the lower court's use of the "prain erroy', standard to.review Frad/s |?2EA motion *as contrary to long-estab- lished law from which we find no reason to deiart. fr. i."r- flrm the well-settled principle that to obtain .ott"t."a ,.ti.r "prisoner must clear a significantly higher hurdle tt"rr*oria exist on direct appeal.,5 ilL,:""T:":_.::J_: i9d'":.,o*y^^tl,_. proper ireldesd to be used bya gi?tri,ct cpg:t engaged p,rsuanr to $-ZSA {"rti,ffi;;;;ffi;: -_ongnal criminal rid. W standard rEJ.Jusrrcns BnsNNeN and Br"ic6,ruN contend that the p*."a,rot ai"".rir" of $ 2255 enroC' standard of Ruie i2(b) of ,eEe""I revrew ortfrF ^F.g"inpl trirla The dissenting anaa'cmFEr..- ff*ffi:'";iffiffit'z# il; i, w'as intended,. nilHH I By approvins $ 2285 Rule 12, we belieye congress intended mereiy toauthorize a court in its discretion to use the Fedeil Rures of C"i.irJ ero-cednre to reguiate the conduct ofa $ 225d proceecling. _f .ourt of"pp""l., f.or e.xample, could invoke the ,.piain enoy'' stanclarcl on direct review of adistrict court's conduct or a $ zisi hearing, if the court or-.pp""il ro*a "sufficiently egregious error in the $ 22Ei pioceeding itselfthai'hal noi-u""n brought ro the atrention of the cristrict coun. Thui, as $ 2256 Rul. ii .ug-gests, under proper cireumstances Rule i2(b) can play a role in $ ZS;proceedings. ^ -{_e {so note that, contrary to the suggestions in the dissenting opinion, $ 2255 Ru.le 12 does not mandate by irs -oivn force the *" oi*v-i",ii.ur* t his federal elaims in federal tg!:_ On balance, weTee no baliE xtr ^ in his concunring opinionl pist, at-, point out that $225dq#Tjt.s that: "If no procedure is specifically prescriUa Uyiffinues' rne ostnct court may proceed in any laurfirl manner not inconsistentwiti these rules, or any applicable statuie, and may "ppfy ifr"-f.a.""f Rules of criminal procednrl or rhe rederal nues'oi'iiitt--ilo.ea*", whichever it deems more appropriate, to motions filed under the." *i"r.,, Bl 986 citcd 42 ccH s. ct. BulI. p. UNITED STATES U. FRADY B We believg-the proper stand tion is tf,. 6rt. *a ".trrt p".jraiieltandard enunciated n Davis v. Ynited States,4ll U. S. fgg (1973), and later con-n Davis v. Wted States,4l1 U. S. f35 (1973), and later con- firmed and extend ed, rn Francis v. Henderson, 425 U . S. 536 (1976), afi W433 U.S. 72 (1977). Under this standard, to obtain collateral relief besed-quld- qIIgEtto-YirJsb-EL!9lL- emPoralleoYs objectioLwas qade' a dffiEea a efenEEt-mffi " excusin g his double procedr:ral default, and (2) "actual prejudice" result- ing from the enorc of which he compiains. In applying this dual standard to the case before us, we it unnecessarrr to t-----,,,# w because we are confident he suffered no actuai prej of a degree suffr- cient to justrfy collateral relief nineteen years after his crime.td nrle of civii or criminal procedure. The Advisory Cnrnmittee Not* $ 2255 Rule 1? refers the reader 'for discussion" of possible restrictions on til usiliffi nries of procedure to the Note to the andogous provision governing proceedings under 28 U. S. C. g?9,il, $ 2254 Rule 11 (which pro- oidest '"rt,e Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these mles, may be applied' when appropriate, to pe' titions filed under these nrles."). The Note to $ 2254 Rule 11 expiains that the nrle "allow[s] the coqrt considering the petition to use any of the rules of civil procedure (unless inconsistent $ith these mles of habeas cotpus) when in its discretion the court decides they are appropriate under the eir- cumstances of the particular case. The court does not have to rigidly ap- ply nrles which would be inconsistent or inequitable in the overall frame- work of habeas corpus." As we have explained in the text above, use of the ,llain enoy'' standard is 'tnconsistent or inequitable in the overall frameworlC' of coilateral reyiew of federal criminal coitvictions under $ 2255. 'c Frady claims that he had "cause" not to object at trial or on appeal be' cause those proceedings occured before the decisions of the Coun of Ap- peals disapproving the erToneous instnrctions. Any objection, he asserts, therefore would have been futile. In this rrigard, the Govemment points out that the flrst case to reject the jury instmctions Frady now attacks rvas decided only tu'o years after 81 987 Citcd 42 CCII S' Ct' Bull' P' UNITED STATES U. FRADY rnconsiderin-.ti,#;,,Tillqi!'ffii:'iJl.::'.;I roneolls jury instnt rrrysg,*xg$li'- mxE-rffi cases firrther etao $3 U. S., at "'. ffiftif" *1t1ofIit ttt'"in other situ- El* il::'r*ql'i?i1$,f'#1fl '(:i""-*ili'ii""'rto,show bef oreobtainrng'ttrffig:t**:'.t"f'S'I.,';X':11f,:r':m:ii:fi *x*.r";:ft :::.:::7 ::l*:lt'mn fi!::11'd:'::*= ill **:"'a' u- :**[ im,U;:*ii]l ::ffi:f ioilor"tion' which re- ';*l#i**fu in+t't'm$*[.m* *:T,'#fr'f ,gn*xlT:l':1"'i't*il'.';i*',i[:{ *kjiTiHtt"''+hfi i**+xg*ilsai"* I:i*df ".ffi ir J '*t*i!iii't*;;*"'s m'#' ilr":: '*,n""a.*,,r'::".1llil;5,i:i,:ff; l'e+tt?,Hp:m'i*:' ;:5;f#i1*,lti"'"H;;;;ii" t'o"' pl'l' ii *ii'r' we addressed a Ir{Ir,*fi *:lh"n"u"*petitiono:::'llliillll?LT",.Ti*iii. **l'"* *" i"qa st tsta' at 13' howev"t' ll'o="r; .*siitudonai stnctures ;,ff *.f $iil3:::';*'l',il:t"'T"1': Br 988 citcd 42 ccH s. ct. Bull. p. UNITED.STATES T' FRADY ouires that the clegree of prejuclice resulting from instnrction #.;"#;;;d i. the'totil context of the events at trial' As we have often emphasized: .[A] .'"-gi. in.t*ction to.a'{ j*y ;;y not U" judged in artificiai isolation' but must oe 1 "i.*.a in the .ont.it of the overall charge'" C"Pp .H xluintrn.4l4 u. s. 141, 1.1il14? (19?3) (citations omitted). #;;;;l ;.ltrdgment of conviction is commonlv the eul- *i*iion 6r a titaluch includes restimony of witnesses: s- ffi",,!..t counsel, receipt of.exhibits in evidence, and in- 3mrJi." of the iurry Uy^ttre judge' Thus not only is the challenged instnrciion Uut one of In*y such instnrctions' but iii"-proZ.rs of instnrction itself is but one of several compo- ,.rttrf the trial *ti.f, may result in the judgment of convic- tion." Id., at L47." i,v. no* rppty these established standards to Frady's case. ry Frady bases his claim that he was prejudiced on hi-s-asser- tion ttrat the jr:ry was not given an adequate oppoftunity to consider a mar,.t"ugirter vJrdict' eccordlnq toJraay+rc '' At the lime Frady was tried, murder in the flrst degree was defined (and stiil is) as a tiuing .oi*ittei .lurposeiy'' "of deliberate and premedi' ;"d ;J;;." D. c. c"a. s 2-240r (1b81)' ,Murder in the second degree was defined ." " f.iffins (oii'tt tt'* a fist<legree murd-er) with "malice aforerhought.,, S Z-Zi'Oi. Culpable killings without malice were defrned to be manslaughter. See n. 7' sttpr.o' The District of Cotumbia .t't"t' clefining murder in the flrst and second degree were first p".."d "i the turn of the century' Act of M*' ?' 1901' 31 st":.. igzr, ch. 85i, $0 ?98: aoo, as a coclifrcation of the common-law defini- ,i"*, "ti.f, they did noi-AtpUt"' See-O'Connsr v' tinited Sloies' 399 A' ?rtls|tDC 19?3); ao*iitii'i. inited' States'26 U' S' App' D' C' 382' 385 (1905). The definition of manslaughter was never codifred' but remairr a matterofcommonlaw.seeLinit-ed'Stolesv.Pend,et,3og.L2d.l92(Dc Cited 42 CCH S. Ct. Bull. p. UNITED STATES i,. FRADY Our *ffi:111_ k ^tl _*!yig:" rhe. burd e;,f ,i;;;:?,;to Frady's $".:9,r:*:::, infectins rri. .nti". iil ;ilh #; ffiXffit; Bt 989 This Frady has fa,ed to do. at the outset, we emphasize r973). The significance of .the, various degrees of homicide uncler the law of theDistrict was sumrnarizea Uy *re Coirr.:ii.r,pp""rs in 1967: "In homespun terminorogy, intentional murder is in the first degree rfcommirted in cold brood,. ani is muraeiin ii" ,."ona degree if commirtedon impulse or in the sudden.hear ,a;;:i;;:'. . . [AJ homicide conceived inpassion constitutes murder in tir" n""iJls"" onry if the jury is convincedbevond a reasonable aouut rhat ih;;;;;";"ppreciabre time after the de-sign was conceived urd. that in trus il; ti,ir" *"" "-n ir[" ir,ougi,t,and a turnin' over in tt. rina-*J;;;;.* perristence of the initialimpulse of passion. '' ' ' [A]n unlavrfur huing in the sudden heat of passion-whether pro.duced by rage' resentment. anger. ten'or or fear-is reduced from murderto manslaughter onJy if there ** ,a"q*i. provocation. such as might nat-urally induce a reasonabie ,,r io ril *.fi of the moment to loie self-control and commit the-act on impulse "na *iit out reflection. ,, Austii v.united Statbs, tn u. s. app- li.i. ;d t8s, 882 F. zd w, tB? (rs6r)(citations omitted). The polic:r basis for the clistinction between first-degree murder andother homicjdes was "ry1ry:a ii cii'i"ri ,.z,nitriitiir, i+ rii.'epp.D. c. m, ur, Lz, r. id erg, ziiiiiriii, " ' "statutes like orirs. which disting:*ish crelberate and premecritatecr murcierfrom orher murder, reflecr " ;]i-.f ,h";;;iio m"airates an intent to killand then deliberately executes it is. more aangerous. more culpable or resscapable of reformarion than one who tciUs oi.suaaen impulse; or that thepnospecE of the death oenalty is mop r,..rv i. cleter men from deliberatethan ftom impursive ,Lu"t.- rrr" aeriue'#""t itt"" is gu,ty of first degreemurdeg the impulsive killer is not.J-------- " So stated, Frad/s claim of actual prejuciice has validity , Br 990 citcd 42 ccH s. ct. Bu[. p. UNiTED STATES T.. FRADY that this would be a different case hacl Frady brought before the District Court affirmative evidence indicating that he had been convicted wrongly of a erime of which he was innocent. But Frady, it must be remembered, did not assert at trial that he and Richard Gordon beat Thomas Bennett to death without malice. Instead, Frady claimed he had nothing whatever to do with the crime. The evidence, however, was overrrhelming, and Frady promptly abandoned that theory on appeal. Frady I, L27 U. S. App. D. C., at 95, 348 F. 2d, at 101. Since that time, Frady has never presented color- able evidence, even from his own testimony, indicating such justification, mitigation, or excuse that would reduce his crime from murder to manslaughter. Indeed, the evidence in the record compels the conclusion that there was, as the clissenters from the deniai of a rehear- ing en banc below put it, "malice aplenty." Frady III,204 U. S. App. D. C., at 245,636 F. 2d, at5l7. Frady and Gor- don twice reconnoitered their victim's house on the afternoon and evening of the murder. Just before the killing, they were overheard in a conversation suggesting that they'\rere assassins hired by George Bennett to do away with his brother." Frady I, LzL U. S. App.D..C., at 97,348 F. 2d, at 103 (Miller, J., concurring in part and dissenting in part). They brought gloves to the scene of the murder which they discarded during their flight from the police, and the murder weapon bore no fingerprints. FinaUy, there was the un- speakable bmtality of the killing itself. Indeed, the evidence of malice was strong enough that the 10 judges closest to the case-the trial iudge and the nine judges who 17 years ago decided Frady's appeal en banc- were at that time unanimous in finding the record at least sufficient to sustain a conviction for second-degree muriler- a kilting with malice. Nine of the l0 judges went further, finding the evidence sufEcient to sustain the jury's verdict that Frady not only killed with malice, but with premeditated and deliberate intent. We conclude that the strong uncontradicted evidence of Br 991 citcd 42 ccH S. Ct. Bull' p' UNITED STATES I.. FRADY malice in the record, Fraciy's utter feiigre-ig mauce ln LIrtr rELUrrrl wvsr'Yt- thai hej44ed_lrilhoui,;o[|j;*,"rd *U-1-e'oIoqbllrqtm, malice, clisPoses of i:::,'::lil Bm#i'T';{il'$iy;J}H'J'l*rmlxiL'.'.* riage of justice in this case' .:-^|:^- ^r +ha irrnr ''^'S;Jd;t douut remain' our,ex-Lmlnation of the jury in- stnrctions shows "" "Ut["ftiA tiitttit'ood that the same jury that forlrd Frady ffi;;ifi"t-degree murder would have concluded, if only fi;-;;li;; instrirctions had been better framed, that his ;;; -was only manslaught-er' T", j"v' after all, did not ttiJy g"a fraay gurlty of second-degree murcler, which ,tqoi"J odv matice' - It iound Frady guilty of first-de gr..J tllil;itlna pre meditat ed-murd er' To see pr..i."ty'tlitit-ioUi'"a to conclude to make this finding, it is neces;#;;:i';"t":,!n" instmctions the triai judge gave the :'"y '" the meaning of premeditation and deliberation: "lP]remeditation is the formation.of the intent or pian to kill, the r.",#"t ;i';;;!iti"-t ies1gn to kill' It must have been contitlered bi the defendants' ..Itisyo*ii.ii.ililt..''i"-"fromthefactsandcir. cumstance. "' tt'G case as you-nna ttrem sturounding the killing wtretirel?nii4'31'a consideration amounting to deliberatio;;;;;a.- .If .q, even though it be of ex- ceedingly u,i.i"a'''iliioii' tr'"i 1s suffr cient'- because it is the fact or a.riu![ffiffi;-]i;; tt'* ti" Iength of t'l:.it continued tf,"i-it irnpo't'nt' Althou-g\ some app-recla- ble period ot iit"-nltt ha'e elapilda*ing whic'h the defendants dtiiil;tilit *at"r* this eiement to be es- tablished, no'il*il'ri;t;;gth J ti*t is necessary for deliberationt .Lt ffiols "* *o'*e the lapse of davs or hours o, .u.'ll? il;;;;- -ii- i" No' +0-?'-63 (Dc)' p' 806, rePrinted at APP' zE' Bv contrast, to have found Frady suiltv of manslaughter theirrry wouid h;#;;d ;'inaii't fr"tttintt of the kind of 81992 Citcd 42 CCH S. Ct. Bull. p. UNITED STATES u. FRADY excuse, justification. or mitigation that recluces a killing from murder to manslaughter. As the trial court put it: "The element [sic] the Government must prove in or- der for you to find the defendants Sudty of manslaughter are: "One, that the defendants inflicted a wound or wounds from which the deceased died, these being inflicted in the District of Columbia. "Two, that the defendants stmck the deceased in sud- den passion, E!$rgg! e3iigr,that the defendants' sudden passion was aroused by adequate provocation. When I say sudden passion, I mean to include rage, resentment, anger, terror and fear; so when I use the expression 'sudden passion.' [sic] I include all of these. "Provaeation, [sic] in order to bring a homicide under the offense of manslaqghter, must be adequate, must be such as might naturally induce a reasonabli man in anger of the moment to commit the deed. It must be such provocation would [sic] have like effect upon the mind of a reasonable or average man causing him to lose his self- control. "In addition to the great provocdtion, there must be passion and hot blood caused by that provoeation. Mere words, however, no matter how insulting, offensive or abusive, are not adequate to induce [sic] a homicide al- though committed in passion, provoked, as I have ex- plained, from murder to manslaughter." Id., at p. 809, reprinted at App. 30. Plainly, a rational jury that believed Frady had formed ,,a plan to kill . . . a positive design to kill" with "reflection and consideration amounting to deliberation," could not also have believed that he acted in "sudden passion . . . aroused by ad- equate provocation. . . causing him to lose his self-control." We conclude that, whatever it may wrongly have beiieved malice to be, Frady's jury would not have found passion and fl / /. Citcd 42 CCH S. Ct. BulI. p. UNITED STATES U. FRADY provocation. especially since Frady presented no evidence whatever of mitigating cireumstances, but instead defended by disclaiming any involvement with the kiliing." Surely there is no substantial likelihood the enoneous malice in- stnrctions prejudiced Frady's chances with the jury. v In sum, Frady has fallen far short of meeting tris Uuraen oy' showing that he has suffered the degree of actuai prejudice I necessary to overcome society's justified interests in the fi- | nality of criminal judgments. Therefore, the judgment of I the Court of Appeals is reversed, and the case is remanded I for further proceedings consistent with this opinion. J o ordered. THs CHrrF JusrIcE and JusucE MARSHALL took no part in the consideration or decision of this case. 'e Nor, on the facts of this case, wouid a finding of a premeditated and deliberate intent to kill be consistent as a matter of law with an absence of malice. See n. 18, supflt. We are not alone in flnding that an erroneous maiice instnrction is not necessarily cause for reversal. Even on direct appeal rather than on col- lateral attack, the highest eourt in the District of Columbia has refused to reverse convictions obtained after the use of precisely the same instnrc- tions of which Frady compiains here. For example, n Belton v. United States, ln V. S. App. D. C. 201, 382 F. 2d 150 (1967), the fi:st deeision expressly to disapprove the instnrction that the law infers malice from the use ofa deadly weapon. the court afflrnred a first<legree murder conviction with the obsen'ation that a "jury inferring premeditation and deliberation could hardly have failed to int'er.maiice." Id., at 206,382 F. 2d. at 155. Similarly, inHowardv. United Sfates, 128 U. S. App. D. 9. 336,389 F.2d 287 (196O, a seeonddegree murder conviction was ajfirmed on direct ap- peal, although the same defective instmction had been given. In two cases in which the defendants put malice in issue by raising self-defense clirims at trial, however, the court, on direct apped, reversed murder con- victions obtained through the use of the faulty instntctions. Grem v. United Stdtes (Grem I), 132 U. S. App. D. C. 98, 405 F. 2d 1368 (1968): United States v. Wharton,l39 U. S. App. D. C. 293, 433 F. 2d 451 (1970). Br 993 81994 citcd 42 ccH s. ct. Bull. p. SIPRENIE COTJRT OF TIIE I]MTED STA{rES No. 80-1595 UNITED STATES, PETITIONER, U. JOSEPH C. FRADY ON WRM OF CERTIOBARI TO THE UNITED STATES COURT OF APPEAIS FOR TIIE DISTRICT OF COLUMBIA CIRCUIT lApril S, 19821 Jugrcr SreveNs, concuring. Although my view of the relevance of the cause for coun- sel's failure to object to a jury instmction is significantiy dif- ferent from the Court's, seeWairuttright v. Sykes, 433 U. S. 72, g4-l97 (SrrvrNs, J., concurring)i Rose v. Lundy, -U. S. -r - (StnvrNs, J., dissentng);.Engle v' Isaac, - U. S. -, - n. 1 (StSvpNS, J., concuning in part and dissenting in part), I have joined the Court's opinion in this case because it properly focuses on the character of the prejudice to determine whether eollateral relief is appropriate. cited 42 ccH s. ct. Bull. p. SI]PREME COT]RT OF TIIE LII.IITED STAf,ES No. 80-1595 UNITED STATES, PETITIONER, t. JOSEPH C. FRADY ON WRTT OF CERTIORARI TO TIIE UNITED STATES COURT OT' APPEAIS FOR THE DISTRICT OF COLUMBH CIRCIIIT [Apri]5, 1982] Jusflcg BuectotuN, concuring in the judgment. Like JusucE BBENNaN, I believe that the plain emor mle of Fed. Rule Crim. Proc. 52(b) has some applicability in a 5n55 proceeding. In my view, recognizing a federai court's discretion to redress plain erzor on collateral review neither nuilifies the cause and prejudice requirement articulated in Wainutright v. Sykes,433 U. S. 72 (19?7), nor disserves the policies underlying' that requirement. Despite the Court's assertions that Ruie 52(b) was in- tended for use only on direct appeal and that the Court of Ap peals ignored "long-established contrary authority," ante, at Ll, L2,I find nothing in the Rule's seemingly broad language , supporting the Court's restriction of its scope. In fact, the fif plain error doctrine .is specifically made applicable to allflll stages of atl criminal proceedings, which, as the dissentingffl opinion points out, include the collaterai review procedures of l" $ 2255. See post, at 2, 4-5, and nn. 5, 6. Even more strik- 1 ing, $ 2255 Rule 12 explicitly permits a federal court to "apply I the Federal Rules of Criminai Procedure or the Federal I Ruies of Civil Procedure, whichever it deems most appropri- | ate, to motions filed under.these mles." 28 U. S. C. $rrfl Rule 12.* I Aithough $ 2255 Rule 12 does not 'tnandate bf its own force the use of any panicular mle of civil or criminal procedure," ante, at 1L15, n. 15. it does afford a federal court discretion in determining whether to appiy the Federal Rules of Criminal Procedure or the Federal Rules of Civil Proce- dure. The Coun's e.xtended discussion, in the same footnote. of the Advi- Br 995 *a / Bl 996 citcd 42 ccH s. cL Bull. p. UNITED STATES U' FRADY The cause and prejudice standard of Waintwight v' Sykes' $tpra' is premised on the notion that. c9pteE!.?ra+e=o1l ttre interests of p strative goais such ;;;;;i..ist;a to serve. -See 433 U'S', at 88-90'. As founa here, an explicit exception to the contemporaneous objection nrle is aPPlicable. Gi to a eon ion has ;@emporaneous obj ectiol ttqy.tT:l: ihe Court conledes, considerations of comity are not- at issue here. See ante, at 13. The second objeetive of the cause and prejudice requirement-lo enforce contemporaneous oUi..iiori nrles and, in particutar, to ensure finality-is, in il;;; ti*if"rfv irrelevant where, as, the CtY t-f }-p-p^"* and a prisoney's petition forcoilaterai review falls within that oa"piior, I see no need for the prisoner to prov.e "cause" for his failure to comply with a nrle that is inapplicable in his - sase. r-I" the federal courts, the plain elTor doctrine constitutes , - I * .*;;;d; go Fed. Rule crim. proc. 30's requirement that -t<- hrq"id;t. ,rt " timely objections to instn:ctions' If the "edft of AppeJs prop."iy .[o".t.tired the errors identifled uy "..pondent as'plain error, it correctly refused.to require him to *"k; i1," iro.. and prejudice showing dtiscribed in soryCommitteeNoteto$22S4Rulell.isbesidethepoint.The.Advisory co,*itt."Notetoszs;nuePexpresslyobsenesthatRule12"dif. i.i; torn $ 225a Rule tt in that the former "inclucles the Federai Rules of criminal Procedure as rvell as the civii." And the note to Ruie 12 appar- mrly refers to the note accompanf in_g $ 2254 ^Rule 11 -tflor cliscussion" oniy oitf," restrictions rn Fecl. R. Civ. P. gtlaxZl ' ' ' .'' Even if the note to' S-Zil nrr" ll is reievant to our clecision in this case. I do not subscribe to ih" Co*t,. conclusion that the plain enor cloctrine is " Snconsistent or in' "qoiout"intheoverallfrarnervorK,'ofcoilateralrel"iervpursuanttoi r55. See ante, at 15. n. 15. quoting Aclvisory committee Noce ro i 21{ Rule 11. 81997 circd 42 ccH s. ct. Bull. p. UNITED STATES U. FRADY Waimtright v. SYkes, sxlPro" -hri; aipror.i, ioes'not, as the Cgutt charges'- "affor[d] fed- eral prisoners a preferred status when they seek post-convic-, tionielief.,, Ante, at L4. The court has long recogmzedf ;-# th; Wainunight v. Sykes standarcl need not be metl whereaStatehasdeclinedtoenforceitsowncontemporane;1 ."..U:..tion nrle. See, e. g', Uls-ter.Cwnty C*4v.' Allen' 442 TJ. S. 140, 14&154 (tbzgl; wainutrig_ht_r:-lay12' 433 U. S., "i aZ; Francis v. Hend'erson,425 U' S' -a36' ilL l,iV obid. simiiarly, the cause and prejudice standara sirc$! / not be a barrier to relief when the plain error exception.to,the I federalcontemporaneousobjectionrequirementisap:licabll[ aTilf;;;J contemporaneous objection m=lei uuy differ tom' \,h;.;.f ,h. St@Y of the Wainunight v' ffi;**A;ArE refore may vary according to the contours /;i fi; p"ni.ot"" jurisdiction'i contemporaneous obj ection re- (oritl"i*r. _-gri that variance does not improperly distin-.;;h il;..n f.d.t t and state prisoners, just as respecting irr, aif.".nces between the contlmporaneous objection nries of two states creates no impermissible distinction. In fact, it is the Court's approach-iefusing to give effect to the plain Loo, exception io tt. federai contemporaneous objection nrle, whiie recognizing exceptions to the analogous state nrles-thatgives-someprisonersa..preferedstatus.,' Similarty,-rnyapproachdoesnotaffordprisoners"asecond appeal," anfte, al ii, ttut sacrificing.the interest in finality of .irr't i.iiont. As the dissenting opinion observes' acknowl- .agiil it . appticability of Rule 52(b) in $ 2255 proceedings does not merge direci appeal ancl collateral review' See prri .i,3, n. zisee atso Uiitectslafes v' Addonizio' MZ U' S' izg,' tgO (i9?9); Hend'erson v. Kibbe, 431 U' S' 145' 16.l (1977)..BecauselagreewiththeCourt,however,thatrespondent has not clemonstrated that the erroneous jury instructions of *ti.n he complains "so infected the entire trial that the re- .uftinJ.onviciion violates due process," Cttpp v' I'laughtm' 81998 Citcd 42 CCII.S. Ct. BulL p. UNITED S?ATES u. FBADy 474 U. S. l4l, l4Z.0gZB), I conclude thar the Court of Ap.peals ered in holding th;i;;;;t was enritted to reliefunder Bute E2(b)' i..o"ainsril'i-;;;.* in the reversar oftne judgurent of tt. C.,rrtliTip."fl. Br 999Cited 42 CCH S. Ct. Bull. P. SI]PRENIE COURT OF fiIE TINITED STTIES No. 80-1595 UNITED STATES, PETITIONER U. JOSEPH C. FRADY oNWRIToFoERTIoRARIToTHEUNITEDSTATEScoURToF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT [April5, 19821 Jusrrcr BntrNNRN, dissenting. I have frequently dissented from this Court's progressive emascuiation of collateral review of criminal convictions. E. g., En4te v. Isaac, - U. S. :,- (1982); Sumnsr v. ilIata, i+g U. S. 539,552 (1981); Wairutrightv. Sykes,433 U. S. 72, gg (L911); Stone v. Powell, 428 U: S' 465, 502 (19?6); see aiso Dauis v. United Stafes, 411 U' S' 233, 245 itgzgl 1M^RSHALL, J., dissenting). Today the Courttakes a further step down this unfortunate path by_ declaring the plain error st*drrd of the Federal Ruies of criminai Proce' iure inapplicable to petitions for relief under 28 U' S' C' 5?255. in so doing, tle Co,rt does not pause to consider the nature of the plain error Rule. Nor does the Court consider lhe riminat character of a proceeding under $ 2255 as distin- guished from the ciuil chancter of a proceeding under 28 il. S. C. g11il. Because the Court's decision is obviously inconsistent with both, I dissent. I A The Court cleclares that the plain eror Ruie, Fed' Rule Crim. Proc. 52(b), was intencled for use oniy on direct appeal and is ,,out of place" when the prisoner is collaterally attack- ing his conviciion. Ante, at 11. But the power to notice p6in error at any stage of a criminal proceeding is funda- 82000 cited 42 CCH s. ct. Bull. p. UNITED STATES u. FRA.DY Eental to the courts'obtigation to correct substantiaj miscar-riages of justiee. Th"t ;bil;;tiJn qualifies rvhat rhe courtcharacterizes as our entitremEnt io pr..u*e that the defend_ant has been fairly d frh"$'.oi"i.r"a. Ante, at tZ.The Cot't coreetly p.i"i;;;; ante a*0, n. tB, that Rule52(b), was merely ".1r1"t.ril;existing law. The role ofthe ptain error gg1ry t ".-;il; been to empower courrs,espeeiauy in eriminar cases, to correct errors ihat seriouslyaffeet the ,fairness, integrity, o" puUfi. ;6;r;ri;; ofludicialptoceedings." t|nited, Slatii u. itkrrr-*,Zg? U.S, 152, 160 S_36): significantty,.ar,rough;;. of the Rules of criminar^ttocedure ap,eT.under h"di;;:uch as ,,preliminarv pro-eeedingB, "'Trial, " _or,,Appeaf fr ,L ;zrul i. .* .iii.t6.A rrerat Frovisions":f tl" "*:G, .ooii.;;i;,;;u-;;: of au Icriminal proceedings in federai ;;il.. See Fed. Rule Crim. Ihoc. r. E' vvq -__{ The Rule has been.reried upon to-correct error:s that mayhave seriourly pr-.jyi..a , po'Jilrgr.9."ril;;d#, see,e. s., Unitea st"ti::. *tan i,-iii 11 3a tztt, tzt*r,216 (CAIrwr), @;;,, rrtg"rmin;' il-i#eity orthe judicial proceeding,. see, ,jr., iW,449 F. 2d,92,9L?5 tiez rsiil]'' fr. p,"r' error Rute miti-gates the harsh impact of the aiversarial system, underwhich the defend"ntl. g.n."Jiy ["'"ra by the conduct of his tary effect on the prosecutior'.rondu.t of the triar. If the 'Ru.le 52(b) provides: "Plain enors or defeets affecting sustantial rigits may be noticed a.rthough Hfl.H,T,."ot brought to ri,"'ittlnt];;;;i" court.,, Fed. Rule brim. Although the Rrrle applies to "prain errors or crefecrs affecting sub.tan-7tid rights," one commentltgy 1ai .rgg.ri.a inrt the disjunctive form of/the Rule is only a me:rns of aistlngr;siir;;;, sio n or e,,i aen.i *i .i.r"" J ;"}: ;i;il;: fi:l,,ifr lI;. i r,; .,i; :ilf, " j , i,s.,#i"iiil6;::i citcd 42 CCH s. cL BulI. p. 82001 UNI?ED STATES r,. FRA.Dy :1',.jXgJt[':H: t?l T:h.: t o guard . a gainst th e possi birity e.xperience " rJ.:lli:tttifl #ilHliry- H[intervene ro proteet rh. J;iil;ir"o, the mistakes of coun-sel." 88 Moore,s Federal pr.ii..'q; Z.OZ Lzl (1gg1).The Rure does not ,ra..mire ooi int.".st in the finality ofcriminai convictions. Rule ;ifUi p..r"its, rather than di-rects, the courts to_ notice pf"in .[oI; the power to recognizeplain error is one qt.1 9ir.lil;;';; admonished to exercisecautiously, see United,srares v.'b;;,515 F. 2d g92, g96 (CA51975), and resort ,-o-grly in ;..*.1pilnal cireumstances,i,Ar-kinson, ,*rpr,.. at 160, " v.t, ii"irntiri. power chat the courtholds congress intendecr-io ;;;;;;;*r courts reviewing ac- Iiil:ltfl::?H*?i.*;::iJT'riifr *11y,:i:l: H:: governing $ 225i ;.;;;iL a.r" thit the bou,.r I The Court,s assumption that Rule i2(b) is inapplicable toI proceedings under.s ?bm ir-6iil;;! gi;;^-;.H;;;;;;*,. \ ru% €1 g. s. r+s, rs+ riiia'ir,ilh suggeilIhat theE#ffi !:rT, TiT; ;i, #i, #U,h#t,: :not, that the plain error cloctrin"-fr". no role in iUU..lio*,I could not accept trr" *r" cru-.t[ analysis because it fai]sto consider the expricit .ors.*ioirr ai.rin.tion between ,The Court rrrr..::.,,.1.11.,T1:Mng ferteral-couns to recognize plain:#JJH:[};*.":"Y rvoukr obscui.',i.,iin**;;, -;;;;' ifi","""r $ 2355 and direct apo"r1'1'^'j:,1': But the signint'nt Jrr.".;;:'#;;"", rcsziJl.tj.*."'t:tj',ff i'i:::Hf :iT:Hi,i,":,,:H..,nl,11*l ;[:1,:il5,T:::ffi^1r_r:J rJlJi..s,,iJb'r" u,,r." $?o5r unjess it is a actey',rhariiro.ii"i',i1,:,,j"iiijjil,"rrll.fi f :;r;1..f,T..r;i::,i,L, if:;: ;d.ff,J.,e 1;l1f;jft:l=,1'1iffi, - s"" "r.o .iiij v Z.nited 82002 Cited 42 CCII S. Ct. Bull. P. UNiTED STATES U. FRADY g?9.*1,' a civil collateral review procedure for state prisonll ers, and |?PJr:o,' a timina,l collateral review procedure foll federal prisoners. In enacting 28 U. S. C. $ in54 and,2255, Congress could tn "s. This was Rep. reaf- , "State custody; remedies in State courts "(a) The Supreme Court, a Justice thereoi a cireuit judge' or a district court shall entertain an application for a lvTit of h in behalf of a peFon in custody pursuant to the judgment of a State court only on the gfound that he is in custody in violation of the Constitution or laws or treaties of the United States." 'fitle 28 U. S. C. $2255 provides in pertinent part: "Federal Custody; remedies on motion attacking sentence: ,.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 sen- tenci r"as imposed in violation of the Constitution or Iaws of the United States, or that the court was without jurisdiction to impose such sentence, or thet the sentence was in e.\cess 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 fo ,.An application for a writ of habeas col?us in behalf of a prisoner who is authorizld to apply for reiief by motion pursuant to this section, shdl not be entertained ifit appears rhat the applicant has failed to apply for reliei by motion, to the court which sentenced him, or that such court has denied him reliei unless it also appears that the remedy by motion is inaciequate or ineffective to test the legality of his detention." i Section 2255 was intended to be in the nature of, but much broader The habeas urit remains available to fed-k to the cotrn mat sentg l ne naoea:t wnl relllallls .lt i:ulaurE LU rw- - erai prisoners where the motion provided under $ 2255 is for some reason inaclequate. S. Rep. No. 1526, 80th Cong., 2d Sess., 2 (1948). See also H.R. hep. No. 308. 80th Cong. lst Sess., A180 (f947). See generaily not have been more explicit: Seqlion rate civil action, but a $ 225p-lqqqg! Ariminai case il which petitioner is o tS20, €Fth Cong., 2d Sess., 2 (1948).i than.theaqgjentrwitofcoramnob t'nlik. -{ /.- / B2003Cited 42 CCH S. CL Bull. P. UNITED STATES U. FBADY firmed in the 28 U. S. C. $ 2254 Rutes and the 28 U. S. C' 9?2j5:o Ruies, approved by Congress in 1976. 90 Stat' 1334' The Advisory Committee's Notes for the E ZSe nUes emptu' S1zE Advi- 11, L2, cifically prescribed by these nrles, the district court [consid- ering a motion under g 22551 may proceed in any lawfui man- United Stotes v. Hayman, ?/iZV. S. m5 (1952). 'The Advisory Note to Ruie I states in pertinent part: .,Whereas sections 2,4L-?2il (dealing with federal habeas for those in state custody) speak ofthe district court judge 'issuing the writ' as the op erative re.iay, section 2255 provides that, if the judge finds the movant's assenions to be meritorious, he'shall discharge the prisoner or resentence him or gant a new trial or corTect the sentence as may apPear appropri- ate.' lirir ir possible because a motion under $ 2255 is a further step in the movant,s criminal case and not a Sepamte civil action, as appeanl from the legislative history of section 2 of s. 20, 80th congress, the provisions of ,rf,i.h '*""e incorporated by the same Congress in title 28 U' S' C' as $2255." 28 U. S. C., P.280. The Note to Rule 3 states that the fiiing fee required for actions under $ 2254 actions is not requted for motions under $ 22$: "[A]s in other mo- tions filed h a criminal action, there is no requirement of a filing fee." a U. S. C., p.283. Rule 1l was amended in 19?9 to provide that the time for appeal of $ 2955 morions is governed by Ruie {(a). the civil provison of the Federal Rules of Appellate foocedure, rather than nrie {(b), the criminai provision. But tire Note to the Rule states: "Even though section 255 proceeclings are a fui,ther step in the criminal ease, [this provision] corectly states culTent Iaw." 28 U. S. C., p. 1207 (Supp. III). The Note to Rule 12 states: 'This nrte differs from mle 11 of the $ 2254 mles in that it includes the Fed- eral Rules of Criminal Procedure as well as the civii. This is because of the nature of a S 255 proceecling as a continuing part of the criminal pro- ceeding (see advisory committee note to rule 1) as rvell as a remedy analo' gous t; habeas corpus by state prisoners." 28 U. S. C'. p' 287' 82004 Citcd 42 CCH S. Ct. Bull. p. UNITED STATES U. FRADY ner not inconsistent with these ntles, or any applicable statute, and may appty the Fedqal Rules of Crimitnl Proce' dru,re or tire Federai Rules of Civil Procedure, whichever it deems more appropriate to motions filed under these rules." 2g u. s. c. $ D-r; hute 12 (emphasis added). This is in con- trast to the parallel Rule governing moli9ns under. $94* which providls: ,ulhe Federal Rules of, Ciyil Procedure, ttrl the extent they are not inconsistent with [the Rules Govern- / ing Section 22Ba Casesl, may be applied, when appropriaterJ . | ." 28 TJ. S. C. $ 2254 Ruie 11 (emphasis added). Thfl court today blurs the distinction between $ 2255 and $ 22il, ignores Congress' insistence that a $ 2255 motion is a continu- a"tion of the criminal trial, and makes no mention of Congress' express authorization to apply the Federal Ruies of criminat Procedrrre. The court suggests t}at to apply the piain elror Rule in $ 2255 proceedings and not in $ 22# habeas actions would grant flaerat prisoners a 'lrefelryed" stafiis ' Ante, at 14' to the contrarlr, to bar federal judges from reeognizing plain erToni on collateral review is to bind the federal prisoners ') o 2d 506, 509 (Fla. 2d 1011, 1012 (1980);Wrightv. State,33 Md- App. 68, 70, 363 A. 2d lifzo, szz (19?6); Riggs v. State,50 Or. App. 109, I14, 6P9, P. 2d 327,329 (1981); indeed, by waiving a procedural bar, state courts can permit the petitioner collaterai review in federal court as weli. lee l[ullaneA v. Wilbu,r,421 U' S' 684, 688, n. 7 (19?5). But the federal prisonerJs only source of respite from this court's "airtight system of procedural forfeitures," Wainutright v. Sykes, 433 U. S., at 101 (BneN- NAI.I, J. ciissenting), lies with the cliscretionary exereise of the federal courts' power. The Court's nrling does not es- tablish parity betwien federal and state prisoners; rather it more tishtly thanlheir state counterparts to this Court's pro- ceduraliarriersJhtate court judges may have power to rqc- osnize olain error iricollateral reile@' cited42 ccH s. ct. Buu. p. UNITED STATES U. FRADY unduly restricts the power of the federai courts to remedy substantial injustice. i As the Court notes, ante, at 13, the concems of comity which underlie many of the opinions establishing obstacles to 92254 review of state confinement, 0. 9., Sumner v. Mata, 449U. S., at 5-o0;Stonev. Powell,428U. S., at491, n.31; Francis v. Hmderson, 425 U. S. 536, 5,11 (19?6), are absent here. If it is tl:ue, as the Court has repeatedly asserted, that the tensions inherent in federal court review of state court convictions require that substantive rights f ield at times to procedural ntles, no similar tension erists in a $ 2255 proceed- ing. Under i225:o, the prisoner is directed back to the same court that fint convicted him. The plain er?or doctrin{ merely allows federal courts the discretion common to mos{ courts to waive procedural defauits where justice requires.) I might add that this is not the first instance in which the Court has obscured the distinction between 92254 and $ 2255. ln Francis v. Henderson, s'u.pra, and then n Wairutright v. lsykes, su:W, the Court ignored the distinction between I S ZSe and $ D-il in order to apply a Federal Rule of Criminal (Frocednre to the purely chlil 92254 proceeeding. Now, ironically, the Court again obscures the distinction this time to aaoid application of a Criminal Procedure Rule to a rimi' nal i25:o proceeding. with each obfuscation of the distinc- tion between i?2.54 and $ 2255, the Court has erected ; ne's "procedural hurdle," see Engle v. .Issac. - U. S. -, - (1982) (SmvrNS, J., concurring in parC and dissenting in part), for prisoners seeking collateral review of their con- victions. Indeed, the "cause and prejudice" standard, which the Court today decides preempts the plain error Ruie, and which I continue to view as antithetical to this Court's duty to ensure that "'federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for ple- nary federal judicial review,"" has its origin in the Federai 82005 B2006 UNITED STATES u. FRADY Rules of Criminai Procedure that the Court now finds inap- plicable. As the cause and prejudice standard has taken on its talismanic role in the law of habeas coryus oniy through the Court's past application of the principles of the Federal Rules of Criminal Procedure in both 52284 and $ 2285 actions, perhaps a brief review of this history is in order. The "c_ause and prejudice" standard originated in Dauis y.c:dtrasffi frgz3). lnDTais,the Coun ap-pli Rules of Criminal Proce- dure'to hoid that a federal prisoner seeking collateral re- view under i2255 had waived his objection to the composition of the grand jury. Relying on the exception for ,,cause shown" in Rule 12(bX2), and Shotwell Manufacturing Co. v. United States,37l U. S. 341 (1963) (a case of direct appeai from a federai conviction in which the Court constmed-the cause exception to 12(b)(2) as encompassing an inquiry into prejudice) the Court divined a nrle for $ 22Ei challenges to the composition of the grand jury: such claims were cogni- zable oniy if the prisoner showed both ',cause,' and ,.preju- dice." Dauis v. United States, supro,, at 24{245 0n the foundation of Dauis, the Court has buiit an incred- ible "house of cards whose foundation has escaped any sys- tematie inspection." Wainunight v. Sykes, sltpra, at 100, n. 1 (BnnNNAN, J., dissenting). Notwithstanding the lack of any evidence of congressional purpose to apply the Fecleral Rules of Criminal Procedure except in $ 22Si proceedings,' cited 42 ccH s. ct. Bu[. p. senting), quoting Fay v. iYoio. 3?2 U. S. ggf, €4 (196A). 'Rule l2(bX2), amended in l9?4, provided in peninent parr ar the time Darns was decided that: "Defenses and objections based on defects in the institution of the pros- ecution or in the indictment or information other than that it fails to iho* jurisdiction in the court or to charge an offense ma1. be raised oniy by mo- tion before trid. . . . Failure to present any such clefense or objection as herein provided constitutes a rvaiver thereoi but the court for eause showa may grant retef ftom rhe waiver." Fed. Rule crim. Proc. 12(b)(2) (1g?0). 'fie Court stated in Dads, rrithout citarion, that "The Federal Rules Cited 42 CCH S. Ct. Bull. p. UNITED STATES u. FRADY 82007 {qre crimhat defendant Finaly, coming n U .i".f.,-t[. court today relies on this "cause and preJ'uiice,' standard to preempt the plain emor standard of Rule of 5Z(b). Francis and,wainutrig,ftt_held applicable to a ciuil proceed- Tg an inapplicable Rule of criminal procedure in order to de. feat substantial claims of state prisoners. Today the Court excludes the applicablity in a criminal proceeding or a Ruie of criminal Procedure plainly intended by congresi to be avail- ableto fgdgral prisoners. Any consistency iir these decisions hes in their announcement, that even in the teeth of clear congressional direction to the contrary, this court wiit strain to subordinate a prisoney's interest in substantial justice to a supposed government interest in finality. II The court's determination to ricle roughshod over congres- sionai intention in orcier co cutail the coiiateral remediZs of prisoners, state and federal, is evident in its passing uj the opportunity to decide this case on the ground onerei uy tire Government, Brief for united States .l-1, n. 84, ancl acloptecl byJusttcn BuecruuN in his concuring opinion, that, in'any of criminal Proceclure do not e.r propio rrgore govern post-ionviction pro- ceedings." lll u. S.. at 2dt. This statemeni was pi^inty *ronft rhe special $ 2255 Rules had not yet been acroptecr ancl rhe criminal iii.. "*-pressly state that they govera all criminal proceedings, ,"" n. i, ,,,p*.At any rate, the co*n then wenr on. ipse it*t, to fin]d it,tnconceivabre,' that congress did nor intend ro have Druxzr govern in the $ 22sd action.Id., at 212. (Franns v. Hend,erson, sl,Lpra, applied the Daais,,cause and \ nrejudice" standard to a stale prisoner who, in a $ 2254 pru \ .::9hg, d::d a constitutional chailenge to the composition U{jh.:g"nd jury_. 425 U. S., at 54t-6,12, see 428 U. S., ,t 548 (BnsxNaN, J. dissenting). Building upon this strained foundation, wainurright v. sykes, sttpra, reied on Dayis and Franeis to declare the "cause and prejuctice" standard appli- cable to q{-p1qgedU1al defaults occundis durinc thp tr"icl nf r .1" : 82008 cited 42 ccH s. ct. Bull- p. UNITED STATES U. FRADY event, petitioner did not show that the instnrctions consti. tuted plain error affecting his substantial rights' That ad- *itt.aiy is a close question o-n thjs reeord''o The Government argues that because the jr:ry could not fr"r. fo*a premeditatlon without also inferring malice' the unoujectea to i*t*.tions did not affect "substantial rights'" A plausible counter to this argument occurs to me in that the trial court instnrcted the jqry that malice and premeditation were two separate etements-of the crime' App' 26-2!' The oremeditation instnrction clid not, in terms, require the jury I n"i-rrr"iiire aerenaant acted without such provocation as ;tdd preclude " h"ai"g of malic.e'.. Yet' if the Court had .o*tr,i.a that th; wa! not "plain" error, it might be diffi- ffii; Gport " dissent from that conclusion, given.the.par- ;i."6 facts of thircase. . As the court did not base it's hold- ing upon this grormd, I dissent' "'I cenainly agree with the Coun of Appeals that "[a] clear miscarriage ,t:"rii.. t* *itrtea iitt.tponaentl "-i1 guilit-v of manslaughter and is i"i," r"*t"giire penatty ror murder." -63.9 F' 2cl, at 511' But it is by no ..*. .t""i that ihere ,*.as a basis for flncling that such a miscarriage may have occurrt$ in this case.