Engle v. Isaac on Writ of Certiorari

    -.l,/-.a 
, 
- 

, 1 t L,?/,-rgv (neN

B1 953Cited 42 CCH S. Ct Bull. p.

SIPREN/M COTIRT OF TIIE III.IITED STIIES

No. 80-1430

TED ENGLE, SUPERINTENDENT, CHILLICOTHE
COBRECTIONAL INSTITUTE, PETITiONER u.

LINCOLN ISAAC

ON WRrI OF CERTIORARI TO TEE UNTTED STATES COIIRT OF
APPEAIS FOR TEE SETE CIRfiIrI

lApril S, 1S2l

Jusrtcg Srtrwxs, concuring in part and dissenting in
part.

A petition for a unrit of habeas cor?tur shouid be dismissed if
it mereiy attaches a constitutional label to factuai allegations
that do not describe a violation of any constitutional right.
In Part IIA of its opinion, the Cor:rt seems, to agree with this
proposition. See ante, at 10-U. The Corrrt nevertheless
embarks on an exposition of the procedural hr:rdles that must
be surmounted before confronting the merits of an allegation
that "states at least a piausible constitutional ciaim." Ante,
at L4. Those ntles, the Court states, "do not depend upon
the tlpe of claim raised by the prisoner." Ante, at?l. Yet,
the Court concludes, they will not bar relief for 'tictims of a
fundamentai miscarriage of justice." Ante, at 2{27.

In my opinion, the Court's preoccupation with procedural
hurdles is more likely to compiicate than to simplify the pro-
cessing of habeas cor?us petitions by federai judges.' In

tThe Cor.ut establishes in this case and ia United Slates v. Frody, 

-U. S. 

-, 
tJrai "'to obtain collaterai relief based on rrial erors to which no'l

contempor?neous objection was made, a convicted defendant must show I
both (1)'cause'excusing his . . . procedu:zi default, and (2) 'actual preju- I
dice' resulting fuE the enors of which he complains." Id., at 

-. 
I-/

joined FrufU because the Court appiied the prejudice pmng of the car.ue

and prejudice standard ia an appropriate fashion, conduding tiat the erT o-
neous instrnction did not "[infect the] entire Eiel with eror of corstitu-
tiond dimeruionE," id., et 

-, 
and "[perceiving] no risk of a firndamentd



Br 954 cited42 ccH s. ct. Bull. p.

{&i!?"a
iiir-:.-;--

ENGLE u. iSAAC

these cases, I would simpiy hold that neither of the ex-

hausted claims advanced by iespondents justifies a colliateral

attack on their convictions.2 I agree with the cor:rt's reiec'

tit" of the claim that the enactment of $ 2901'05 imposed a

.o*titotional burden on Ohio prosecuton to prove- the ab-

,"rr.. of self{efense beyond a reasonable doubt. It seems

equally clear to me that, apart from $ 2901.05, the Constitu.

tiin ai"r not require the piosecutor to shoulder that burden

whenever willfulness is an element of the offense, provided,

of .o*", that the iury is properiy instmcted on the intent

i.*".NothingintheCourt,sopinionpersuades.methatthe
second theory is any more "plausible" than the fi:rst'

I would reverse on th. merits the judgment of the court of

Appeals.

miscarriage of justice in this case," id', at-' Like the prejudice Prcng'

the cause-proni t r" some reiation to the inquiry I believe the Co_ut should

underteke in habeas cor?us cas$. See 
'?ose 

v' Lunly' 
- 

U'.S' 
-'I1S,ssvENS, J., dissenting). '[re faiiure to object gen*ally.indicates

that defense couasel felt thaithe trial error was not critical lo his client's

.r"";p""ro..bly,therefore,tJteerrordidnotrenderthetriaifuada'
mentdly unfair.

[1 thiq case, however, the court applies th{g1@prolc Yqoo! relating

itr appiication to the fairaess of reipondentsrlfrats. Indeed, the Corut

cateiorietty rejects respondents, argument ,.that their prejudice was so

;; ,h", ii shouia permit relief even in the absence of cause," noting that

froir*qnt v. Sykis,433 U. S. ?2, stated the cause and prejudice stand-

ard in th; conjrlrctive. Ante, at25, n 4i!' I would not apply that stand-

ard,astheCor:rtdoesinthiEcase,tobarhabeascor?usreiiefsimplyasa
Eatter of procedr:ral foreclosure.

! A thtd ciaim is tlat respondents were deprived of due proc-ess and

.qo"t p*r..tion of the.laws'b".",t" the Ohio Supreme Court refused to

appty,etro"ctivelytotheirconyictionsitsdisapprovaiofthechallenged
. i,i"l'i*i*ction. The co,rt declines to address this ciaim on rhe ground

thatitwasnotexpressiyraisedinthehabeascoryuspetition'.Ante'etL1
n.25.Iamnot,*.,,h.th""itcanbesaidthattheclaimhasnotbeen
raised, but in any event I find the ciairn unpersuasive'

+yr.sir-:'
*i.r;*i'tffit'

\"S.. '" !P- ;'l
--.i4-1.,1.



cited 42 ccH s. ct. Bull. p.

SIIPBENIE COT]RT OF TIIE III\ITED STrlf,ES

No. 8G-14i10

TED ENGLE, SUPERINTENDENT, CHILLICOTHE
CORRECTIONAL INSTITUTE. PETITIONER u.

LINCOLN ISAAC

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

lApril5, 19821

Jusucs BRENNaU, with whom Jusrrcs Mensser.r, joins,
dissenting.

Today's decision is a conspicuous exercise in judicial activ-
ism-particuiarly so since it takes the form of disregard of
precedent scarcely a month old. In its eagerness to expati-
ate upon the "significant costs" of the Great Writ, ante, at
1&19, and to apply "the principles articulated in Wainutright
v. Sykes," 4il3 U. 5.72 (L977), ante, at L4, to the cases before
us, the Court demonstrably misreads and reshapes the ha-
beas claim of at least one of the state prisoners involved in
this action. Respondent Isaac presented exactly one ciaim
in his habeas petition. That claim did not eaen erist until
after Isaac was denied relief on his last direct appeal. As a
result, Isaac could not have "preservecl" his claimln the state
courts: He simply committed no "procedural default," and the
Court is thus clearly wrong to apply Syi'es to his claim in or-
der to relegate it tq the clustbin. Moreover, the Court does
so by ignoring the holding only last month in.Rose v. Lundy,

- 
U. S. 

- 
(March 3, 1982): namely, that a habeas peti-

tion that contains an y unexhausted claims must be dismissed
by the habeas coun,. The Coun then compounds its error
when it attempts to articuiate the "principles" of Sylies: In
purpofting to give content to the "cause" stanciard announced

Bl 955

r:- i?



Citcd 42 CCH S' Ct' Bull' P'
Bl 956

ENGLE U. ISAAC

in that case, the Court defines "cause" in a way supported

neither by Sykes nor by common t:l::' I dissent from both

Hffi;";;#, *t'iti' Lt discussed in turn below'

I

Respondent Isaac was indicted in Mav tg75; he was con-

victed after a jury trial and sentencea during the following

September ' Whilt hi; conviction *tt on applA in the Ohio

Conrt, of Appeals,-it"bnio SupIgP: Court decided State v'

Robinson,+z onio'dl ziiqa'.iui * E' 2d 88 (Julv 1e76)'

which constmed Of"t nt"' iode "tnn' $ 2901'05(A) (effective

January 1, 19?4) it itqtrirt the prosecution to bear the bur-

den of p"^u^'on'-beyond a reasonable doubt' with respect

to an affirmaUve iele"#t."d-.-f.*e raisea by the defend-

ant. Ttre ohio d;?;'p:';p*ed Isaac's conviction

in Febnrarv Lg;;? 
" ii'';"5hio sootttne Court dismissed

Isaac's appeal in 
jutv lii;',,--0" tt't"'me day' the ohio Su-

Dreme Court atti'ati ;;;;; v' H1t'7'rhries' 51 ohio St' 2d 95'

s6a N. E.2dt35i:=H;1"* aggit ed Robinsom ret:oactive

to the effective i"tt^il"szgorostel'-uot oily partiallvz lt

held that in order to garl tir3 1try1cil" 
Ut"Oti of the Eob'

insondecision, a deiendant tried before a jury must have

fr :'ffitj;ffi .'i"fjff :';Yl j[tTJ[Ti?f:l:,1d
defendant .ooia'i"ut made the same objection as late as m

the catrt 'f 'ee"l'i*J 
tltg tUjeciion wouid still have been

preserved. er or'il st ia' ti torrog' 3&l N' E' 2d' at

t'?3;". 
fi,ed his habeas petition in the United States District

Court for the s";il;6i=ititt or or'ioln March 19?8'' The

'ApP. 2; Appendlt to Brief in No' ?&3a88' /soac v' Engte tCA6)' pp' 2'

3-{.
'APP'6'

:ilL,ll; to Brief in No' ?8-3'188 ' Isaac v' Enste tcA6)' p' 18'



citcd 42 ccH s. ct. Bull. p.

ENGLE u. ISAAC

asserted ground for relief was "denial of due process of law,"
in that

'The trial court charged petitioner had the burden of
proving self-defense. After conviction and during the
first appeai the Ohio Supreme Court deciared the in-
stnrctions to be prejudicial error under Robinson. This
case was immediately raised to the Appeilate Court.
They held any error was waived. The Ohio Supreme
Court then held Robinson retroactive. Petitioner had
raised retroactivity in its leave to appeal and was denied
leave to appeal the same day Humphies was decided de-
claring retroactivity. The Ohio Supreme Court refuses
to give relief despite its own pronouncement. The hold-
ing of the court is contrary to the Supreme Court of the
United States in regard to proving self-defense."5

Isaac's memorandum in support of his habeas petition made it
plain that his claim was that Humphries'selective retroactive
application of the Robinson nrie denied him due proeess of
law.6 It is obvious, of course, that it was simply impossible
to make this claim before Hu,mphries was decided, in Juiy
L9T7 , on the same day that Isaac's direct appeals in the state
court system were finally rejected.

Ohio Rev. Code Ann. $ 2953.21(A) provides for post-
conviction relief under certain circumstances:

"Any person convicted of a criminal offense . . . claiming
that there was such a denial or infringement of his rights
as to render the judgment void or voidable under the

' Id., at p. 2l (emphasis added).

'Id.,at p.25: "[T]he Ohio Supreme Coun denied [Isaac]leave to appeai
on the same day it decided Sfate v. Huntphfies. . . . rvhieh declared its rul-
ing in EoDinsoa to be retroactive toJanuar-v I, l9?4. . . . [IsaacJ submits
to make Robinson retroactive, and then !o refuse to give him the benefit of
retroactivity denies him the due process guarantees of the Fourteenth
Amendment. . . ."

81957



Br 958 Cited 42 CCH S. Ct. Bull. p.

ENGLE u. ISAAC

Ohio Constitution or the Constitution of the United
States, may file a verified petition at any time in the
court which imposed sentence, stating the grounds of re-
lief relied upon, and asking the court to vacate or set
aside the judgment or sentence or to grant other appro-
priate relief."

By applying the doctrine of res judicato to postconviction pe-
titions, the Ohio Supreme Court has allowed relief under this
procedure only under limited cireumstances: Constitutional
issues can be raised under $ 2953.21(A) only when they could
not have been raised at trial or on appeal. State v. P*.rg, L0
Ohio St. 2d L75, 180-181, 226 N. E. 2d 104, 108 0967); see
Keenerv. Ridenour,594 F. 2d 581, 589-591 (CA6 t9?9) (con-
stnring scope of Ohio postconviction remedy); Riley v.
Haaen*, 391 F. Supp. Lll7, 117L1180 (ND Ohio 1974)
(same). But Isiiac's claim is manifestly of the sort that cauld
not haue been raised at trial or on appeal, for the claim only
came into existence on the day that Isaac's last appeal was
rejected. Consequently, state postconviction remedies are
avaiiable to Isaac and have noi been exhausted.

I draw three conclusions from the foregoing aceount, all of
which to my mind follow ineluctably from the undisputed
facts of this case. First, Isaac's habeas petition should have
been dismissed for his failure to exhaust available state reme-
dies. See Picard v. Connor, 404 U . S. 270 (1971), where we
emphasized that

''the federal claim must be fairly presented to the state
courts. . . . Only if the state courts have had the first
opportunity to hear the claim sought to be vindicated in a
federal habeas proceeding does it make sense to speak of
the exhaustion of state remedies." 404 U. S., at
27:}|276.

In the present case, petitioner Engle responded to Isaac's pe-
tition by raising the issue of Isaac's failure to exhaust.?

:1d,., at pp. 3*36.



citcd 42 ccH s. ct. Bull. p. Br 959

ENGLE U. ISAAC

Therefore the court of Appeais clearly ened, under Picard
and our whole line of exhaustion precedents, in granting ha-

beas relief to Isaac instead of requiring exhaustion. The

proper disposition of Isaac's case is thus to reverse and re-
'rn*a witli instnrctions to dismiss on exhaustion grounds.

The Court's failure to order such a disposition is incom-

prehensible: Barely a month ago this Court emphatically re-

affirmed the exhaustion doetrine, and indeed extended it, an-

nouncing a requirement of "total exhaustion" for habeas

petitioni. Rosi v. Lundy, 

- 
U. S. 

- 
(March 3, 1982).t

but today the Court finds the nostnrm of "cause and preju-

dice" moie attractive, and so Rose v. Lundy is not applied'

Sic transit gloria Lundyl In scarcely a month, the bloom is

off the Rose.'
My second conclusion is that Isaac simply committed no

,,protedural default,' in faiiing to raise at trial or on direct ap-

plai the claim that appears in his habeas petition' .P"t
.t.i- d;id, not exist at any time during Isaac's trial or direct

."A rigorously enforced total exhaustion nrle will encourage state pris-

oners toieek full relieffirst from the state courts, thus giving those courts

the first opportunity to review all claims of constitutional enor. As the

number olprisoners who exhaust all of their federal ciaims increases, state

courts may become increasing famiiiar with and hospitable toward federal

constitutional issues." Slip op.. at 10.
,The court notes. ante, at u-15. note 25, that Isaac added citations to

Mullanql and Patterson in his memorandum in support of his habeas peti'

tion. Ttre Court apparently holds that these citations somehow save

Isaac's petition from dismissat. But that holding is flatly contraqy to the

explicit holcling of Rose. that *the exhaustion mle in 28 U' S' C'

$S'ZS,ltUNc) requires a federal district court to dismiss a petition for a

rv1it of habeas cor?us containing ony claims that have not been exhausted

in the state courts." SIip op.' at 1 (emphasis added).

Recognizing this flat contracliction. the Court suggests that the claim
,.toutedi by ml ,.formed no part of Isaac's original habeas petition." Ante,

at t5, note 25. This suggestion is clearly belied by the plain langrage of

Isaac,s habeas petition, rvhich the Court never quotes, but rvhich is quoted

in fuli szrpra, ai B. That lang:age speaks for itself. far more clearly and

eloquently than the court's unsuccessful attempt to reeonstnrct it.



Br 960 Cited 42 CCH S. Ct. Bull. P.

ENGLE U. ISAAC

appeai. Thus the essential factuai predicate for an applica-

;il;i Wairunight v. Sykes, sx{pro' is completely absent in

i."".lr .".". iEkes involved a habeas petitioner who had

iJ.a to object ina timety manner to the admission of his con-

ie.sion at irial. 4il8 Ir. S., at 86.8?. Given that factual

pi.Ji.rt., Sykes addressed the question of whether federai

iaUe". review should be baned absent a showing of "cause"

i* ifr. procedural default of failing to object, and. a further

.h;*irg of ,,prejudice" resulting from the admission of the

confesstn . ia., at 81,90-91. But in the case before us' re-

spondent Isaac could not have made any objection,.timely or

oifr.."i.., at trial or on appeai. Thus the application of

sykes is completely and manifelly elToneous in this case.r0
-"M, 

hst conclusion is that the Court is so intent upon apply-

*i- siirr to Isaac's case that it plays procnrstes with his

.iiitn. In order to bring Isaac's claim within the ambit of

iiiit,the Court flrst chalacterizes his petition as tomplex,"
inte,'at 9, and "confused," ante, at 16, n' 25'" Then' with-

oot .r.t quoting the claim as it actualiy appeartd T Isaae's

p"ilii.u it. C-oort delineates a "colorable constitutional

.t"i-" nowhere to be found in the petition. As the Court re-

casts it, Isaac's ciaim is as follows:

tTlhe crime[] charged against [Isaac] requirels] a show-

",The panel opinion of the united states court of Appeals for- the sixth

Circuit in Isaac;s case reached this same conclusion. The panei comectly

,""d l.rr.,. petition as presenting the question of'\rrhether the decision of

il; S;G;"'Coqrt of oirio to withhold from petitioner the benefits of Sec-

tion 2901.05(A), as established in state v. Robinson, for failure to comply

with ohio,s contemporaneous objection mie was a deprivation of due proc-

..r.i' et6 F. zd, tiz2.,1121 (19b0). As to this question, the panel accu'

rately conciuded that ,,'wainwright v. Sy/tes, supm, is not dpplicable to . . .

[Isaac's] petition." Id., et L127.' 
',Thodt[ text of Isaac,s claim appears sztpro, at 3. It is plain that the

court,s claims of "compiexity" and iconfusion" are merely a smokescreen,

behind which the Court feels free to reshape Isaac's claim'



cited 42 ccH s. ct. BulI. p.

ENGLE u. ISA,AC

ing of pur?osefui or knowing behavior. These terms,
according to [Isaac], imply a degree of cuipability that is
absent when a person acts in self-defense. . . . Selfde-
fense, llsaac] urge[s], negates . . . [essentiai] elements
of criminai behavior. Therefore, once the defendant
raises the possibility of self-defense, [Isaac] contend[s]
that the State must disprove that defense as part of its
task of establishing gulity rnens reo, voluntariness, and
unlawfuIness. The Due Process Clause, according to
llsaac's] interpretation of Winship, Mullaney, and Pat-
terson, forbids the States from disavowing any portion of
tlis burden." Ante, at 12-13.

This new-modeled claim bears no resemblance to the claim
actually made by Isaac in his habeas petition. See szpro, at
3. u But by virtue of this exercise in juristic revisionism, the
Court puts itseif in position to find that "Isaac's" claim was
'forfeited before the state courts," ante, at 17-no dfficult
task, since the claim is wholly imagined by the Court itself-
thus enabling the Court to reach its clearly sought goal of de-
ciding '\rhether the principles articulated in Wainwright v.
Sgkes, supra, bar consideration of the claim in a federai ha-
beas proceeding." Ante, atL4. Unsurprisingly, the Court's
bottom line is that Isaac's fictive claim is indeed barred by
Sykes. In short, the Court reshapes respondent Isaac's ac-
tuai claim into a form that enables it to foreclose all federal
review, when as plainly pleaded the claim was unexhausted,
thr:s calling for the dismissal of Isaac's petition for habeas re-
lief. The Court's analysis is completely result-oriented, and
represents a noteworthy exercise in the very judicial activ-
ism that the Court so deprecates in other eontexts.

u It does bear some resemblance to Isaac's claim as consirued by the plu-
rality opinion of the Court of Appeals sn bauc beiow. 646 F. 2d 1129,
113L1136 (1980). But the pluralit-v's constnrction rvas simply inconrect,
and this Coun should correct such erors, not pet?etuate them.

Bl 961



/'

81962 Cited 42 CCH S. Ct. Bull' P'

ENGLE U, iSAAC

II

For the reasons stated above'- I conciude that in its un-

#,.H[['ffi ]il',flff #'#tii34.:flrfqt
day's decision is tt"i"ait that ry1i-"lo'n"' 

I turn to the

court's treatment t*f d; ;;l; oi tr't t"ttt before- us- I

continue to believe ii"itf"-"atii!"I*t bvaass" standard an-

nounced tnFay u''i"ii"izu' s' 391 (1963)' is the only sen-

sible nrle to applyin habeas t*tt 't"h-* tttpot'dents'' 'I
adhere to mv diJil; w@t'*ight v' Svkes' lllpra' rrl

which I termedt,i"t 
;t"it"-""a-ptt:"ditti' tt"dard adopted

in that case "a "* 
i'"i*t oi t"ia" *hose foundation has es-

caped *y .yttt*"iit ii"ntttion''i 433 U' S'' at 99-100' n'

1. the Court #ffiil*"': turnish its house of cards-

*a tl" tu*it*"oii'l":tffo*'t as the house itself'

Sykesdid not give the terms "cause" and "prejudiee" any

"precise tontt"t'ii"i*"*Sa thalilater casls" would pro-

vide such .on"nt''*+ili ti' s'l."t,gr"--ioday the nature of

that content u"t'o*tlaili"tttingrppparent' 
The Court

still refnset'o t"v'ii"Jt""t" it-e"ii predict that'on the

Cor:rt's present i#:; *ii-p"out easier for a camel to go

through the eve #"Jn;;tii;1litlt9i ; state prisoner to show

*cause." got *"i;.;'l'"" it-q' the Court is more than ea-

ser to sav what';;;;;;;1;"ott A"it doing so' the corrrt is

fuoported neither by comlnon sense nor by the very reasons

offered i' sutrl'# ;;r,il or ti.';to,ise and prejudice"

rt*a"ta in the frrst^Olace'.r-^..^^rtis 
not demonstrated when

,* : 
g F,.:i :H !"'it^ J tl[ i:' n "r'i' 

*'l i iac ked t he

tools to .ontt*li itlit tonititut'onit claim"' ante' at 24'

however pti*ti" 'f"* 
tools were-tna tf'ot however incho-

ate the claim;;;;;petitioners were in the state courts'

.:1+'



,t/

/"

Br 963
Cited 42 CCH S. Ct. Bull. P'

ENGLE U. ISA,\C

the Court concludes, after severai pages oftortuous reason-

ing, ante, at?!%24:;i;;;t;;"dents ii tt" present cases' did

indeed have ,.the ,oor." to in"t. their constitutional claims.

This conclusion it it"ti"a by the sheerest inference: It is

based on citation. ; ;Glases in other jurisdictions' where

other defendants ;;;.J other claims assertediy simiiar to

those that respord;;'; "could" have raised' Ante' at?f-l24

andnote40.Toholdthepresentresoondentstosuchahigh
standard of foresight is tantamount to a complete rejection of

the notion that theie it 
" 

poi"t before which a claim is so in-

choate that there ;;;aa*te ,,cause,' for the failure to raise

it. In thus ..i..iing inchoateness as "cause"' the Court

overiooks the fact thrt- non. of the rationales used in sykes t o

'iustifv adoption oiifr. i"utt-'na-prejudice standard can jus-

tiry tia"fi d.firtition of "cause"'

Sykes adopted i;; ;;;and'prejudice standard in order

to "accord 'lreater respect" to.. state 'contemporaneouit-

;h"d; dE ,r,i' *"t'*tttedlv given bv-Fav v' l'loia'

suo',a'. 4!S U. S- 
"t 

AS-' The Cou:rt then offered a number

:f"d#;;;;*po*.o*-objection nrles should be

glven such greater resPect:

(1) *A contemporaneous objection enables the record

to be made #il;;p"tt to the constitutiond claim when

the recollections of witnesses are freshest' not a year

later in a federal habeas proceeding'" 43P.U' S" at 88'

(2) A contffioraneous objection "enables the judge

who obserr;;il;;;l"not of thott witnesses to make

the factual aeterminations necessary f9I properly decid-

td ;h.'federJ-constitutional.question"' Ibid'

(3) "A .onlt-pt*eous-objettion rule may lead to

the exclusion-oiJtA.nce objected to, thereby.making a

major contiUution io nnaiity in criminal litigation."

Ibid.
(4) The Fay v' Noio nrle "may encourage 'sandbag-

grnd on tir. iitt tialrtntt lawyers' who may take their

\
,



81961 Cited 42 CCH S. Ct. Bull. p.

ENGLE U. ISAAC

chances on a verdict of not $iity in a state trial court

with the inteni to raise their constitutional claims in a

federaihabeascorrrtiftheirinitialgambledoesnotpay
off." 1d,., at 89.

(5) A contemporaneous objection nrle "encourages the

result that [cri-riinal trials] b" '" 
free of error as possi-

ble." /d., at 90.

None of these rationales has any force in the present case'

The first three r."*r[ oe valid, if at all, onlY T the partieu-

Iar context of objections to the admission of evidence' such as

were at issue in SUkus. As for the "sandbagging" ratignale'

iliiny;;peatea-uv today's.Court, ante' at20' note 34' that

;-tu1iy;;.r.iir, *V sykes dissent:,3 That argument still

u433 U. S., at 103-1M and n' 5:
*under the regime or.orli."a ,eview recognized since the days of, Broum

tl'uii tw-u. s. caa (195s)1, and enforced- by the Fcg bypass test' no

rational Iawyer *oura iJ1-r*:s"nau"ggind feared by the Court' ' ' ' In

brief, the defense f"*yei would face-iwo options: (1) l{e couid eiect to

present his constitutio*t tt^i-' to the state courts in a proper fashion'- If

the sate trial court " o"*rJ; that a consritutional breach has occurred.

the remedies dictaterj 
"rvlh" 

con.,itution would be imposed' the defense

would be bolstered, # ii; prosecution accordingiy weakened, perhaps

precluded altogether. If the state court rejectslhe properly tendered
P;H, ;"1;i;;-t"r-L.i "*hing: 

Appeuare review betbre the state

co,rts and federal habeas consicleration are preser:'red. (2) He could elect

to'sandbag.' ttti= p"lt"i'Ufy t""nt' fr:si' that he rvouid hold back the

presentadon or irr conslit;onal claim to the trial coun. thereby increas'

ing the liketihooct "f 
;-;";;iion since the prosecurion rvould be able to

Dresent evidence tf,r.. *iiif" arguably consiitutionally deficient' may be

ilffiiiiilffij;;;;;;.".- s".lna. he wouicl rhereby have forfeited

ailstatereviervandremerlieswithrespecttotheseciaims(subjecttolvhat.
ever liarn ."rof *i"'i.l'"if"Uf"l' 

'Thi'q' to carn' out his scheme' he

rvould norv be compellJ io deceive the fecleral habeas court and to con'

vince the judge that i*iiJ""ilaeliberateiy blpass' the state procedures'

If he loses on t}is ;;i;,-"i i"a.""t revierv-wouicl be baned. and his

'sandbagging'*oofA il"o" ""Jt"a 
in nothing but the fodeiture of ail judi-

cial rcvierv of his ctientis .rri-". Ttre Court. rvithout substantiation, ap

,*."afvLU"u"u tf,.r"it""itzu number of la. aers are induced into op

\



Citcd42 CCH S. Ct. Bull. p.

ENGLE u. ISA.AC

"offends common sense," and does not become iess offensive
by sententious repetition. And the 6nal reason-..ti.o on
again today, ante, at lLis plainiy irrelevant to a case in-
volving inchoate constitutional claims. such claims are er
hypothesis so embryonic that only the extraordinoity ior.-
sighted criminal defendant will raise them. tt is comptetety
implausible to expect that the raising of such claims 

",iri 
pr.-

dictably--or even occasionally-r"i.e triais more ,,free of
et?or."

B
The court justifies its result today with several additional

reasons-or, rather, sentiments in reasons, clothing. We
are told, ante, at 18, that "the Great writ entails sifrificant
costs. collateral review of a conviction extends the irdeal of
trial for both society and the accused." But we ,". noi tota
why the accused would consider it an "ordeal,' to go i"r.i.r.r
court in order to attempt to vindicate his cJnstitutional
rights. Nor are we tord why society shouid be eager to en-
sure the finaiity of a conviction arguably tainteaiy uare-
viewed constitutioP ._og. directly affecting the truthfinding
function of the trial. I simply rail to underitand how allow-
ance of a habeas hearing "entails sifficant costs,' to aigone
under the circumstances of the cases before us. '

In a similar vein, we are told, ante, at 19, that ,,We must
also aclo:owledge that writs of habeas corpus frequently cost
society the right to punish admitted offenders."' I for one
rvill acknowledge nothing of the sort. Respondent. *L". 

"uconvicted after trials in which they allege that the burclen of
proof respecting their afflrmative defenses was imposed upon
them in an unconstitutional manner. Thus thet;;-;otl,.d_
mitted" offenders at alr: If they had been t"i.J *iir, ti,.
assertediy proper allocation of the burclen of proof, tirenlhey
might very well have been acquitted. Furiher,'it is sheer

Bl 965

tion 2 by Fay. I do not. That beiief simply offends cornmon sense.,,



Cited42 CCH S' Ct' Bu['P'
Bl 966

ENGLE U. ISAAC

ff;T3#,H.[,iJffi .ff ;:i'#'l'iJff H'ii'fl']l

iiffi ,lT.lff l,*ffid'l:L:1n*;':'m;:fr 
?*}*:

don of tte contmuii;;;t5*t ' ' ' of i'it ut'itta States"' 28

u' s' c' $2254(a) 
iold', wte,at 19-20 and note 33' that

tT#J 
axi.ffi;'*ro"''P":'-1.'o'ts 

on our federai svs-

tem. ' ' ' rtil#iti*:1t*]";;"lt"tt ttimi"al'trials

frustrate uotilit-Sl"1t-t''t'ou1tt* **:r to puni-sh of-

renders *a i'n.,i: t*1 r''r' I fii'i:' UUXH1XI};

#rfl*ru*ri*m#iggt#:,3SH
r;254P'ot"tii"g' new constltu

once again, tire Coult drags "':l,}t*ing 
across it13-atir' I

l:n.'*1rl;i#H?ffillt*ggpq,''l-,rJl;
Lnitla States: :T'.;:1#:*i'fit ","'iG 

reason for deep

the suPreme lav

concem when tiril.il; fo'gttt; "t'ii 
tt't^ittiy does today'

that 'tt is a corJsat;i*we ire t.p"*ai"g"' I '-1j'onstitu-

iionintend"a."'l'[*""r:"q::^:li]m;X'*S'X'"iJ1:

l:,H:1t1itJ":tuil,#fr1+ffi 
i*in:1,::premacv.

to defer * ""I"ffi 
'*'lf :td**"'H.,X';' Hlfi"'J

[tuiti]i],'rj**tx#[*ilfr*ffi i*Tr
Ei:r,ln*i;l;u;"ii'""3i;[:[iltt]$'i?:'3:TJ'{i
ffi $t'a.ff"H:ffi 31ilHH;','T'ho=tli[ivioti'easser-

', l!,C*lloch v. *laryland' 4 Wheat'



cited 42 ccH s. ct. Bull. p.

ENGLE u. iSA.AC

tion of federal constitutional claims, starkly reveals the emp

c
Finally, there is the issue of the Court's ertension of the

Sykes standard "to cases in which the constitutional enrcr
. . . affect[s] the tnrthfinding function of the trial." Ante, at
20. The Court concedes, ibid., that Sykes itself involved the
violation of the habeas petitioney's Miranda rights, and that
although ''this defect was serious, it did not affect the deter-
mination of guilt at trial." But despite the fact that the
present cases admittedly do involve a defect affecting the
determination of guilt, the Coun refuses to limit SE&es and
thus bars federai review: "We do not believe . . . that the
principles of, Sykes lend themselves to this limitation." Id.,
at 21. In so holding, the Court ignores the manifest differ-
ences between claims that affect the tnrthfnding function of
the trial and claims that do not.

The Court proelaimed in Stone v. Powell, 4?A V. S. 465,

490 (1976), "the ultimate question of guilt or irunocence . . .

should be the central concem in a criminai proceeding."
defendant's Fourth Amendment rights, see Sfone, or
Miranda rights, see Sg&es, may arguably be characterized as

"cmcially different from many other constitutional rights,"
Kau,fman v. United Stafes, 394 U. S. 217, 237 (1969) (Black,
J., dissenting), in that evidence procured in violation of those
rights has not ordinariiy been rendered untnrstworthy by the
means of its procurement. But a defendant's right to a trial
at which the burden of proof has been constitutionally allo-
cated c n neaer be violated without rendering the entire lrial
result untmstworthy. "In all kinds of litigation it is plain
that where the burden of proof lies may be decisive of the
outcome," Speiserv. Randall, 357 U. S. 513, 525 (1958), and
petitioners in the present cases concede as much, Brief of Pe-
titioners 22. As Justice Harlan noted in In re Winship, 397

u. s. 358 (1970),

81967

A
his



Citcd 42 CCH S' Ct' BuIl' P'

81968

ENGLE 
u' lsAAc 

^.c^- a nnminai trial

*l
tts,

Ti#, 
innoct 

-^ h,rrd€rl was nii::*"i'^fi#ff1x1 u.-

-- :':"; here, ,::.:HffiX,!fr::',"^:::"rh" nsk or con-

Where' - --.r.,e
-ather rh,rr u,' "-:pl'l'."" of the t*i}til iiltit; 1*;*;=
il*"rbva.plt^P^:nd"'A'-"L-*eatertllil;il'919t-H"l".
':;sr}:Hl-;r#:'ry.rxi*si.i"Hltr;;
:?fiHiH':ffi $lq=*'tiff.i:,tit?Hf ,iTJ'"""':
qP,,Pi:W;, +or !' ";-il,"""troac,.' -- -^*, e.orrstlrof N! i""i-nw to be rurtv ']..-.,"o of a ne1 ll] .r1"i ,iro,
sion in n '-':'" _: ,, - mqiof pory""L"t sf a criruna I,\na tosrv- 

{..\i\jrhere tn".-' ?iie * "rr_i:;;** W*Tr*rtE uw-
doctrtnl,S l,:.:;;;;;r its .tnr tie acattacl]ll..o*pr"..

*Y###i::{; Wr* :*rffi i w' *'! i
dtctst,rtPffi**l:'*,#,,y,#ffiW
*r'ilry:;;,,i"Y:?f ',:;:;;"erosee,cff ;iJ(i-;;;.*oti*pted.r' - ; 

^ 
a sx'ffrceo'".' :ffffori" ;.-: u,y1;1, iiir u. s.

of jtnl'.ii",iii*,,'-' 
"l: ffi;;1: llf'l?lt. i6g, zea

tnthesr

Y*'xtisef 
'iii':tt[ftt*'t'ul;-'""**

Og68). 
'+ot U' =",::;tor" 

"antted 
to t

'W***,*Y, f rr#l#'$X r:'s

u$Ie iau

H:'Bf



cited 42 ccH S. Ct" Bult. p. Bl 969

ENGLE u. ISA.rtC

that, "In the administration of criminal justice, our society
imposes almost the entire risk of error upon itself," beeause
"the interests of the defendant are of such magnitude.,,
Addirqtonv. Teras,44t U. S. 4lg, 42U24 (19?9): In the
context of the cases before us today, this principle means that
a habeas claim that a mistake was made in implsing that risk
of error cannot be cavalierly dismissed as jusi .noih.r ,.t)pe
o.f dlT raised by the prisoner," ante, at 2L In ,y oi.*,
the sykes standard is misguided and insupportable in any
context- But if it is to be suffered to exist aCa[, it shouid bL
Fit:9 to the arguable peripheries of the triai process: It
shouid not be ailowed to insulate from all judicial review au
violations of the most fundamentai right. of th. accused.

I dissent.