Montana Law Review

Volume 26
Article 3
Issue 1 Fall 1964

July 1964

The Writ of Habeas Corpus

Gorham Swanberg

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Gorham Swanberg, The Writ of Habeas Corpus, 26 Mont. L. Rev. (1964).
Available at: https://scholarship.law.umt.edu/mlr/vol26/iss1/3

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 Swanberg: The Writ of Habeas Corpus

NOTES
THE WRIT OF HABEAS CORPUS

In 1915, the Supreme Court of the United States in what has come to
be considered a breakthrough decision discarded the restrictions on
habeas corpus review that had previously existed. The Court held that it
would look beyond the question of whether the state court had jurisdic-
tion over the defendant, to determine whether the state court had given
the defendant "due process of law" under the fourteenth amendment.
In so doing, it stated:
But this does not mean that that decision [of the state court]
may be ignored or disregarded. To do this, as we have already
pointed out, would be not merely to disregard comity, but to
ignore the essential question before us, which is not the guilt or
the innocence of the prisoner, or the truth of any particular fact
asserted by him, but whether the State, taking into view the
entire course of its procedure, has deprived him of due process
of law. This familiar phrase does not mean that the operations
of the state government shall be conducted without error or fault
in any particular case, nor that the Federal courts may substi-
tute their judgment for that of the state court's, or exercise
any general review over their proceedings, but only that the fun-
damental rights of the prisoner shall not be taken from him arbi-
trarily or without the right to be heard according to the usual
course of law in such cases.'
Thirty-nine years later, the Supreme Court reversed a decision of the
New York Court of Appeals by holding that a confession of the defend-
ant was, as a matter of fact, coerced. The Court stated: "The question
for our decision is therefore whether the present confessions were so
coerced. The question can only be answered by reviewing the circum-
'2
stances surrounding the confessions."
The difference in approach taken by the Supreme Court in these two
cases is fundamental. In the former, the Court looked only to the procedural
aspect of whether the state allowed the defendant a fair opportunity to
present his claim. In the latter, it redetermined the facts which had al-
ready been determined on the merits by the court system of New York,
the federal district court, and the federal circuit court. The Supreme
Court reversed them all.
It is the purpose of this paper to discuss in detail the reasons for
this fundamental change in the Court's attitude, the nature of the change,

'Frank v. Mangum, 237 U.S. 309, 334 (1915).

2
Leyra v. Denno, 347 U.S. 556, 558 (1954).

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 Montana Law Review, LAW
MONTANA Vol. 26 [1964],
REVIEW Iss. 1, Art. 3 [Vol. 26,

the problems it has led to, and those that it will possibly lead to in the
future.
Prior to the Civil War, there was no authority in federal judges to
3
entertain petitions of habeas corpus alleging detention under state law.
However, in 1867, an act was passed vesting federal courts with this
power, but it was repealed the following year and no cases came before
5
the Supreme Court under it. 4 The act was not re-established until 1885.6
7
The first case arising under the new statute was Ex parte Royall
which enunciated the rule that the writ would not lie until the petitioner
had exhausted all his state remedies.8 On the rationale that, in the interest
of comity, the state ought to be allowed to pass on the federal questions
first, the rule was later extended to hold that if the state did pass on the
federal question the proper procedure was to appeal to the United States
Supreme Court, rather than to ask for a writ of habeas corpus.9 A corol-
lary to this rule was established in 1891 to the effect that the writ of
habeas corpus could not be used to relitigate an issue already decided in
the state courts. 1° The reasoning was grounded in the belief that federal
district courts should not serve the function of an appellate court for
state findings of fact, nor should the writ of habeas corpus serve the
purpose of a writ of error. Thus until 1915,.the writ of habeas corpus
would lie only to correct jurisdictional errors. In that year the decision
of Frank v. Mangum11 was handed down.

Petitioner in that case was convicted of murder and sentenced to

death. His petition for a new trial alleged mob domination which re-
sulted in intimidation of the jury and thus deprived him of a fair trial.
The new trial was denied and an appeal taken. The Georgia Supreme
Court took depositions and made an extensive investigation into the mat-
ter, determined the contention to be unfounded, and affirmed the convic-
tion. 12 After several unsuccessful attempts to gain relief through post-
conviction remedies in Georgia, a writ of habeas corpus was asked of the
federal district court which was denied. Eventually the case reached the
United States Supreme Court. The Court affirmed the conviction pri-
marily on the ground that the Georgia Supreme Court had already
adjudicated the issue. The Court stated:

3Ex parte Dorr, 44 U.S. (3 How.) 103 (1845).

'Act of Feb. 5, 1867, ch. XXVII, 14 STAT. 385.
5
Act of March 3, 1885, ch. 353, 23 STAT. 437.
"During this time there was habeas corpus litigation under the Act of 1789. How-
ever, this statute was construed to apply only to jurisdictional issues. Ex parte Wat-
kins, 28 U.S. (3 Pet.) 193 (1822). The Court in that case stated at page 202: "An
imprisonment under a judgment cannot be unlawful, unless that judgment be an
absolute nullity; and it is not a nullity if the court has general jurisdiction of the
subject although it should be erroneous.''
'117 U.S. 241 (1886).
'This rule was subsequently enacted into law by Congress. 28 U.S.C. § 2254 (1958).
'Urquhart v. Brown, 205 U.S. 179 (1907).
101n re Wood, 140 U.S. 278 (1891).
"237 U.S. 309 (1915).
UFrank v. State, 141 Ga. 243, 80 S.E. 1016 (1914).
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1964] NOTES

[W] e hold that... a determination of the facts as was thus made

by the court of last resort of Georgia respecting the alleged in-
terference with the trial . . . cannot in this collateral inquiry be
treated as a nullity, but must be taken as setting forth the truth
of the matter, certainly until some reasonable ground is shown
for an inference that the court which rendered it either was want-
ing in jurisdiction, or at least erred in the exercise of its juris-
diction; and that the mere assertion by the prisoner that the facts
of the matter are other than the state court upon full investiga-
tion determined them to be will not be deemed sufficient to raise
an issue respecting the correctness of that determination ....13
The Court however, put an end to one previously important aspect of
habeas corpus by deciding that the writ need not be based only on juris-
diction. The Court stated: " [J]f the State, supplying no corrective
process, carries into execution a judgment . .. based on a verdict ... pro-
duced by mob domination, the State deprives the accused of his life or
liberty without due process of law. '14 (Emphasis added.)
The decision stands for the rule that the writ of habeas corpus will
lie whenever the state does not provide a means of correcting its own
legal errors. The case is directed toward providing a method whereby it
can be made reasonably certain that the defendant was convicted in an
error-free atmosphere. The Court does not take the next step and deter-
mine whether there has, in fact, been an error-free trial. 15 If, however,
the state court never determines whether there has been an "error-free
atmosphere," then the Supreme Court will set the conviction aside. This
was done in Moore v. Dempsey, 16 a case presenting the Supreme Court
with the same issue as was presented in the Mangum case 1 7 except that
the Arkansas Supreme Court had rejected the contention of mob violence
without an independent investigation. The Court stated:
But if the case is that the whole proceeding is a mask-that
counsel, jury, and judge were swept to the fatal end by an ir-
resistible wave of public passion, and that the State Courts failed
to correct the wrong, neither perfection in the machinery for cor-
rection nor the possibility that the trial court and counsel saw
no other way of avoiding an immediate outbreak of the mob can
prevent this Court from securing to the petitioners their con-
stitutional rights.'

"Frank v. Mangum, supra note 11, at 335.

"Ilbid.
"5Although such an approach has been deemed unduly restrictive by Professor Curtis R.
Reitz in his article, Federal Habeas Corpus: Impact of an Abortive State Proceeding,
74 HKxv. L. REV. 1315 (1961), it would seem that a state court with its ability to
take depositions is in a much better position to determine a factual issue than is the
United States Supreme Court. On the other hand, if the factual issue is never liti-
gated, then it would seem there has been a failure to supply a corrective process.
16261 U.S. 86 (1923).
-Supra note 11.
"Moore v. Dempsey, supra note 16, at 91.
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Many writers have contended that the Moore case discredits Frank
v. Mangum.19 The case is definitely ambiguous and this is an easily justi-
fied position. However, it is important to remember that in the Mangum
case,20 the contention of the petitioner was argued and evidence taken,
while in the later case, the contention of mob domination was rejected by
looking only at the record. It is very difficult to visualize the effects of
mob domination being reflected in the record, with the result that looking
only to the record does not seem to meet the "corrective process" test re-
21
quired by the Mangum case.

The problem of the adequacy of the state record has been adjudicated
many times and has provided the federal courts with many of their most
difficult problems. By 1952 however, it was well established that a writ
of habeas corpus would lie if the petitioner's allegations were such that
they would not show in the record. The position was well stated in
Waley v. Johnston: "The issue here [whether the defendant had been
coerced into pleading guilty] was appropriately raised by the habeas
corpus petition. The facts relied on are de hors the record and their effect
22
on the judgment was not open to consideration and review on appeal.
A later per curiam decision stated a more general rule:

Where the state courts have considered and adjudicated the

merits of . . . [the petitioner's] contentions, and this Court had
either reviewed or declined to review the state court's decision,
a federal court will not ordinarily re-examine upon writ of
habeas corpus the question thus adjudicated. . . . But where
resort to state court remedies has failed to afford a full and fair
adjudication of the federal contentions raised, either because the
state affords no remedy ... or because in the particular case the
remedy afforded by state law proves in practice unavailable or
seriously inadequate ... a federal court should entertain his peti-
tion for habeas corpus . .2

This then, was the state of the law prior to 1952. Before turning to
the recent expansion of the above rules, certain collateral matters should
be disposed of. A major issue before the Court concerned the scope to
be given to the "exhaustion of state remedies" doctrine as enunciated by
Ex parte Royjall. 4 The controversy centered around the question of
whether it was necessary to go directly to the Supreme Court from an
adverse state court decision and if so, what effect should be given to a

19
See, e.g., Hart, The Supreme Court 1958 Term. Forward: The Time Chart of the
Justices, 73 HARv. L. REV. 84 (1959). This position is also elaborated on by the
Supreme Court in Fay v. Noia, 372 U.S. 391, at 421 n. 30 (1963).
°Supra note 11.
'For an exposition of this view, see Bator, Finality in Criminal Law and Federal
Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441, 488 (1963); Fay v. Noia,
supra note 19, at 448 (Harlan, J., dissenting.)
2316 U.S. 101, 104 (1942).
3Ex parte Hawk, 321 U.S. 114, 118 (1944).
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2-Supra note 7. 4
 Swanberg: The Writ of Habeas Corpus
1964] NOTES

denial of certiorari. In 1950, the Supreme Court held that a person had
not exhausted his state remedies until he had applied for a writ of certi-
orari from the Supreme Court and was barred from aid in the federal
courts if he did not so apply.2 5 The Court acknowledged the conflict in
interest between state and federal courts concerning the recognized right
of federal courts to determine federal constitutional issues, stating:

Solution was found in the doctrine of comity between courts, a

doctrine which teaches that one court should defer action on
causes properly within its jurisdiction until the courts of another
sovereignty . . . have had an opportunity to pass upon the
26
matter.

The Court then denied the writ because the petitioner had not asked
the Supreme Court to review the state court conviction by a writ of certi-
orari prior to asking the federal district court for a writ of habeas corpus.
The Court expresslyo refused to decide what weight should be given to a
denial of certiorari, stating only that the denial should not be res judicata.
However, two Justices in a concurring opinion and Frankfurter in a dis-
27
senting opinion, stated that the denial should be given no weight.

In 1953, the Supreme Court handed down the now famous case of
Brown v. Allen 25 involving three petitions for habeas corpus from the state
of North Carolina. Two of the appeals were factual, involving the ques-
tion of jury discrimination against the Negro defendants. The third ap-
peal involved the legal question concerning the failure to perfect an ap-
peal within the required time limit, the appeal having been filed one day
late. Eventually all the convictions were affirmed but not until the
Supreme Court had broken much new ground. The significance lies in
the almost casual acceptance of the rule that the Supreme Court should
decide the cases on the merits even though this had already been done
by the Supreme Court of North Carolina. The Court was not concerned
with whether the state had provided the petitioners with an adequate
"corrective process" but rather whether the state court had correctly
decided the factual issues involved. It is difficult to find the test the
Court sets up within the opinion itself,29 but it has generally been inter-
preted to lay out the rule that a federal district judge may grant a new
hearing on the merits of the petitioner's claim, even though the state court
has litigated the issue on the merits adversely to the petitioner, whenever

'Darr v. Burford, 339 U.S. 200 (1950).

'Id. at 204.
nBrown v. Allen, 344 U.S. 443 (1953) later decided the issue in accordance with this
position.
2Ibid.
'Actually the word "opinion" is highly inaccurate since there were two majority
opinions, the first of which, entitled the "Opinion of the Court" espouses Mr.
Justice Reed's minority position, four concurring opinions and two dissents, with
Mr. Justice Black leading the list by writing one concurring opinion, one dissent,
and concurring in the other dissent.
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there are "unusual circumstances ' 3 0 or "a vital flaw . . . [is] found in the
process of ascertaining such facts in the state court .... 31

Concerning the other major issues in the trial, the Court held that if
the petitioner violated the procedural time limit for filing an appeal he
was thereafter barred from receiving a writ of habeas corpus. The Court
stated:
The writ of habeas corpus in federal courts is not authorized
for state prisoners at the discretion of the federal courts. It is
only authorized when a state prisoner is in custody in violation
of the Constitution of the United States. 28 U. S. C. § 2241. That
fact is not to be tested by the use of habeas corpus in lieu of an
appeal. To allow habeas corpus in such circumstances would
subvert the entire system of state criminal justice and destroy
32
state energy in the detection and punishment of crime.
33
This latter position was reaffirmed in a rather 1eculiar 1959 case.
The defendant having been convicted of murder in a highly publicized
trial, asked for a new trial on the ground the adverse publicity had de-
prived him of a fair trial. The motion was overruled because the defend-
ant had escaped from jail and was still at large. The Supreme Court of
Indiana affirmed. Habeas corpus was denied on the ground that there
was an adequate state ground for the conviction which barred looking
into the constitutional issue. The United States Supreme Court granted
certiorari and reversed, sending the case back to the circuit court for a de-
termination on the merits of the constitutional claim. 34 The problem in the
case concerned the ground on which the Indiana court had based its
decision. The circuit court had decided that the Indiana court had based
its decision35 on the procedural aspect of the case, and that the escape
barred adjudication of the constitutional issue.3 6 The Supreme Court
disagreed stating: "On the contrary, the opinion to us is more reasonably
to be read as resting the judgment on the holding that the petitioner's
constitutional claim is without merit. ' 37 Having decided that the state
court based its decision on the constitutional rather than the procedural
aspect of the case, the Court found no difficulty in deciding it was error
for the federal courts not to relitigate the constitutional claim. There
were four dissenting Justices who thought the Indiana court had rested
the decision on the procedural issue. They pointed to the fact that the
first seven pages of the Indiana opinion were devoted to it while only
the latter two pages discussed the constitutional question. The dissent

"'Supra note 27, at 463.

8Id., at 506 (Frankfurter, J., concurring.)
a"Id., at 485.
mIrvin v. Dowd, 359 U.S. 394 (1959).
31The Seventh Circuit ultimately affirmed the conviction in 271 F.2d 552 (7th Cir.
1959).
'Irvin v. State, 236 Ind. 384, 139 N.E.2d 898 (1959).
"'251 F.2d 548 (7th Cir. 1958).
7
- Supra note 33, at 403.
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 Swanberg: The Writ of Habeas Corpus
1964] NOTES

also pointed to the transition sentence between the procedural and con-
stitutional portions of the case which reads: "Our decision on the point
under examination makes it unnecessary for us to consider the other con-
tentions of the appellant; however, because of the finality of the sentence
in the case we have reviewed the evidence to satisfy ourselves that there
38
is no miscarriage of justice in this case."1
Regardless, however, of how the Indiana court meant to decide the
case, the rule of the Dowd case is clear: an adequate, independent state
procedural basis for conviction will bar federal interference.
This then is how the law stood until March 18, 1963, when the
Supreme Court handed down two cases which drastically changed the
law of habeas corpus. 9 The first of these cases, and probably the most
significant, sets out certain situations in which a federal district judge
must hold an evidentiary hearing. The second, Fay v. Noia, holds that
state procedures cannot act as a bar to the granting of a writ of habeas
corpus.

In Townsend v. Sain, the defendant, convicted of murder and robbery,

appealed, alleging that he had been convicted by the use of a coerced
confession. The Illinois Supreme Court upheld the conviction on the
ground that the confession was voluntary. 40 The Supreme Court denied
certiorari. The defendant then applied for post-conviction relief from the
Illinois courts which was denied on the theory that the decision concern-
ing coercion was res judicata. Certiorari was again denied. Petitioner
next sought a writ of habeas corpus from the federal district court which
was denied and affirmed by the Seventh Circuit. The Supreme Court
granted certiorari, vacated the judgment and "remanded for a decision
as to whether, in the light of the state court record, a plenary hearing
4'
was required."'

On remand, the federal district judge did not grant a hearing stating
that "he was satisfied from the state court records before him that the
decision of the state courts holding the challenged confession to have been
freely and voluntarily given by petitioner was correct . "42 The district

court concluded: "Justice would not be served by ordering a full hearing

or by awarding any or all of [the] relief sought by Petitioner."4" The
Seventh Circuit again affirmed, holding however, that a federal district
judge can inquire only into the undisputed portions of the record. 44 The
Supreme Court granted certiorari to determine if the Seventh Circuit
applied the correct test.
'Supra note 35, 139 N.E.2d at 902.
9Townsend v. Sain, 372 U.S. 293 (1963); Fay v. Noia, 372 U.S. 391 (1963).
'°People v. Townsend, 11 Ill.2d 30, 141 N.E.2d 729, 69 A.L.R.2d 371 (1957).
"Townsend v. Sain, supra note 39, at 296. See Townsend v. Sain, 359 U.S. 64 (1959),
where the judgment was vacated and the case remanded.
'2Townsend v. Sain, supra note 39, at 297.
"3Ibid.
"Townsend v. Sain, 276 F.2d 324, 329 (7th Cir. 1960).
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In the petition for habeas corpus, petitioner alleged that he had new
evidence that had not been brought out at trial. Two questions are then
ultimately presented by the case: (1) Did the defendant have any new
evidence, and; (2) If so, must the federal courts grant an evidentiary
hearing to determine its validity. The Court answered both questions in
the affirmative and remanded the case for a determination on the merits
of the petitioner's claim.
Petitioner in the Sain case was a nineteen-year-old dope addict with a
mentality barely above that of a moron. To relieve his withdrawal symp-
toms, the police, after his arrest, allowed a doctor to administer a shot of
hyoscine and phenobarbital. Hyoscinc is more commonly called scopola-
mine and known to most people as "truth serum." Petitioner contended
that the court, in determining the voluntariness of his confession, was not
told that hyoscine was a truth serum, and further that it was not common
or proper to administer this combination to an addict suffering with-
drawal symptoms. The prosecution conceded there was no direct mention
made of the identity of hyoseine and scopolamine but thought the omis-
sion harmless since the effect of hyoscine was described by three medi-
cal expert witnesses at the trial. Further the police medical doctor testi-
fied that it was common practice for him to administer the mixture to
those suffering withdrawal pains and that he had never seen it have the
effect petitioner contended it had on him. The state denied that the effect
of the drug was correctly stated by petitioner.

The Court held this was a sufficient dispute of fact not passed on by
the Illinois Supreme Court to warrant a plenary hearing to determine
the truth of the allegations. The Court then laid down the following
test :
Where the facts are in dispute, the federal court in habeas corpus
must hold an evidentiary hearing if the habeas applicant did not
receive a full and fair evidentiary hearing in the state court,
either at the time of the trial or in a collateral proceeding. In
other words a federal evidentiary hearing is required unless the
state-court trier of fact has after a full hearing reliably found
the relevant facts. 45 (Emphasis added.)
In discussing this test it is important to note that the rule is manda-
tory and not discretionary with the federal judge. The Court further
states: "In all other cases where the material facts are in dispute, the
holding of such a hearing is in the discretion of the district judge. '46

This, then, is an extreme broadening of the scope of habeas corpus.

The "exceptional circumstances" and "vital flaw" tests of Brown v. Allen
are overruled. 47 The federal courts now have unlimited discretion to
'5Townsend v. Sain, supra note 39, at 312.
'lId. at 318.
"'Townsend v. Sain, supra note 39, at 313.
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 Swanberg: The Writ of Habeas Corpus
1.9641 NOTES

overturn a state court's finding of fact and in many instances a hearing

is mandatory.
In an attempt to clarify and particularize the test set out above, the
Court listed the following situations in which a plenary hearing must be
granted:
(1) [T]he merits of the factual dispute were not resolved in the
state hearing; (2) the state factual determination is not fairly
supported by the record as a whole; (3) the fact-finding proced-
ure employed by the state court was not adequate to afford a
full and fair hearing; (4) there is a substantial allegation of
newly discovered evidence; (5) the material facts were not ade-
quately developed at the state-court hearing; or (6) for any rea-
son it appears that the state trier of fact did not afford the
48
habeas applicant a full and fair fact hearing.

The second aspect of the Court's holding is perhaps more novel than
what has been stated above. This concerns the legal aspects of the rules
laid down by the state court and held controlling by them. The Court
states:
Reconstruction [of the state court's findings] is not possible
if it is unclear whether the state finder applied correct constitu-
tional standards in disposing of the claim. Under such circum-
stances the District Court cannot ascertain whether the state
court found the law or the facts adversely to the petitioner's con-
tentions. Since the decision . . . may rest upon an error of law
rather than an adverse determination of the facts, a hearing is
compelled to ascertain the facts. 49 (Emphasis added.)
When the facts and law are so blended that the two concepts cannot
be separated and it is not clear on what the state court based its decision,
the Supreme Court has this to say:
If any combination of the facts alleged would prove a violation
of constitutional rights and the issue of law on those facts pre-
sents a difficult or novel problem for decision, any hypothesis
as to the relevant factual determinations of the state trier in-
volves the purest speculation. . . . Under these circumstances it
is impossible for the federal court to reconstruct the facts, and a
hearing must be held.50 (Emphasis added.)
In other words, there is no presumption raised that the judge decided
the law correctly. In fact the opposite conclusion is reached; namely, the
federal district court is instructed to raise the presumption that the state
supreme court did not know the law and hence decided the petitioner's
claim incorrectly.

48Ibid.
191d. at 314.
'OId. at 315.
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The companion case of Fay v. Noia5 ' is concerned with a related

aspect of habeas corpus; what is to be done if a valid state procedural
law prevents the constitutional claim from being litigated? Noia was
convicted, along with two others, of murder and was sentenced to life
imprisonment. The other two defendants appealed and eventually had
their convictions reversed on the ground that the confessions involved
were coerced.5 2 Noia, however, deliberately did not appeal his conviction.
After the reversal of the other two convictions, Noia applied for post-
conviction relief from New York which was denied because of his failure
to appeal within the required time limit. Petitioner then asked for a writ
of habeas corpus which was denied because he had not exhausted his
state remedies by virtue of his failure to appeal. 53 The circuit court re-
versed, questioning the validity of the lower court's holding but deciding
that the circumstances of the case were so exceptional that compliance
54
with the section [28 U. S. C. section 2254 (1958)] could be waived.
The Supfeme Court granted certiorari; affirming the decision of the Sec-
ond Circuit but on different grounds. The Court stated:

We hold: (1) Federal courts have power under the federal habeas
statute to grant relief despite the applicant's failure to have pur-
sued a state remedy not available to him at the time he applies;
the doctrine under which state procedural defaults are held to
constitute an adequate and independent state law ground barring
direct Supreme Court review is not to be extended to limit the
power granted the federal courts under the federal habeas
5
statute. 5

Thus an adequate and independent state ground will no longer bar

review or reversal via habeas corpus by the federal courts. The Court
next concluded that the exhaustion of state remedies as required bY 28
U. S. C. section 2254 applies only to those available at the time the writ of
habeas corpus is applied for. And finally, the Court decided that the
failure to appeal cannot be looked upon as a waiver of the right to ask
for a writ of habeas corpus. In setting up limitations on the rule, the
Court stated that one who has "deliberately sought to subvert or evade
the orderly adjudication of his federal defenses in the state courts"5 6
may in the discretion of the federal district judge, be denied a writ of
habeas corpus. But this choice must be the petitioner's own and not his
counsel's. 5 7 Further, neither neglect nor inadvertence will be a bar to the
granting of the writ. 58 Thus, whatever interest the state may have in

-372 U.S. 391 (1963).

6U.S. ex rel. Caminito v. Murphy, 222 F.2d 698 (2d Cir. 1955); People v. Bonino,
152 N.Y.S.2d 298, 135 N.E.2d 51 (1956).
"Fay v. Noia, 183 F. Supp. 222 (1960).
"Fay v. Noia, 300 F.2d 345 (2d Cir. 1962).
5Fay v. Noia, supra note 51, at 398.
RId. at 433.
17 1d. at 439.
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1964] NOTES

setting up a system of procedure designed to facilitate an orderly ad-

ministration of justice, it must fall before the defendant's right to have
his constitutional guarantees.
The actual facts in the Noia case show an even greater liberalizing than
do the tests set out above. Noia had deliberately waived his right of ap-
peal. The reasons for this waiver are unclear although the Supreme
Court states that for Noia to have appealed would have meant there was
a substantial chance of retrial and a death sentence.5 9 "His was the grisly
choice of whether to sit content with life imprisonment or to travel the
uncertain avenue of appeal which, if successful, might well have led to a
retrial and death sentence."60
The Court does point out however, that the possibility of an enhanced
sentence on retrial will not always be a valid reason' for deciding not to
appeal. Rather "each case must stand on its facts."'
The present law of habeas corpus can be summarized as follows:
1. Where there is a dispute of fact involving a constitutional
question, a plenary hearing must be granted on an application for
a writ of habeas corpus to determine if the petitioner has been
deprived of his constitutional rights, unless the state court has
fully adjudicated the issue.
2. If the state court has given a full review on the merits, the
federal district judge has the discretion to retry these facts and
decide against the state court.
3. The petitioner need not ask the Supreme Court for certiorari
62
before asking for a writ of habeas corpus.
4. State procedure must fall before a constitutional right, even
though the failure to comply with a state procedural rule was
negligent or sometimes, even if it was wilful.
Before turning to the consequences of this liberal trend, it is in-
teresting to note some of the possible reasons for such an expansion.
Perhaps the one most often given concerns the expansion of the meaning
"The validity of this approach is problematical for three reasons:
1. The orginal trial conviction was based only on the confessions with the result
that a reversal would have left the state with no evidence with which to convict a
second time. Although the convictions of Caminito and Bonino were reversed,
neither was retried as the state had presented no evidence but the coerced con-
fessions now unavailable. Fay v. Noia, supra note 51, at 395 n.1.
2. The New York Federal District Court inquired into the reasons for the failure
to appeal but made no findings. Noia, however, testified that he did not wish
to saddle his family with a financial burden. Only Noia's lawyer brought up
the possibility of the death sentence on re-trial. Fay v. Noia, supra note 51, at
386 n.3.
3. The Court mentions the comments of the trial judge when he sentenced Noia
and although the judge did state he had considered disregarding the jury's recom-
mendations, the fact is that he did not.
GOFay v. Noia, supra note 51, at 440.
61
Ibid.
Published"Fay
by The Scholarly
v. Noia, Forum
supra @ Montana
note Law, 1964
51, overruled Darr v. Burford, supra note 25, in this respect. 11
 Montana Law Review, Vol. 26 [1964], Iss. 1, Art. 3
MONTANA LAW REVIEW [Vol. 26,

of "due process of law" as embodied in the fourteenth amendment. The

writ of habeas corpus can be looked upon as a means of enforcing these
guaranteed rights. It might logically be asked why the Supreme Court
does not take the case directly from the state supreme court. There are
several reasons why it does not. One is the sheer volume of work this
would entail. If all the writs that now come before the lower courts were
to come directly to the Supreme Court, the already difficult task would
be made completely impossible.0 3 Secondly, many of the issues raised are
such that by their nature, the record does not contain sufficient infor-
mation to judge the matter. Suppression of evidence, perjured testimony,
and inadequate counsel are among the problems that do not find their
way into the record.
A second major reason for the expansion of habeas corpus is fun-
damental to a basic change in our society. For many years now, there
has been a steady barrage of literature challenging the ability of our
court system to arrive at a consistently correct verdict. Books such as
Not Guilty by Judge Jerome Frank and Barbara Frank have performed
a service by pointing out weaknesses in our judicial process. They have,
as a by-product, left lawyers and judges alike with a feeling that per-
haps the verdict pronounced is wrong. This, coupled with various so-
ciological and psychological studies tending to show the emotional
prejudices that govern man and the studies showing the unreliability of
peoples' senses have all combined to make courts extremely reluctant to
accept a judgment as final. There is always the nagging doubt that per-
haps this man is not guilty.

In discussing this problem, it must be remembered that a distinction

should be made between legal certainty and absolute certainty. This
latter can never be accomplished, for all men are subject to the same
possibility of error. Constant relitigation of the same issue doesn't neces-
sarily materially decrease the chance of error. It only allows a higher
court to make the error. The processes of law should not aim at this
perfection but rather should attempt to set up a system that is socially
64
acceptable and reasonably probable to come to the correct solution.
The courts have not recently been concerned with providing a rational
framework within which legal certainty can be found. Rather the empha-
sis has been toward finding the "absolute truth of the matter." Also,
many people tend to consider a pronouncement by a court freeing an
individual as correct while they look upon a conviction as questionable.
A recent case and the comment by a distinguished judge concerning it
will serve as an illustration. The petitioner had been convicted of first
degree murder and had never appealed, although he had alleged at trial
his confession was coerced through police brutality. While serving his
sentence he petitioned a federal district judge in Washington for a writ

"Reitz, Federal Habeas Corpus: Post Conviction Remedy for State Prisoners, 108 U.
PA. L. REV. 461, 464 (1960).
https://scholarship.law.umt.edu/mlr/vol26/iss1/3
"Bator, Finality in Criminal Law, supra note 21. 12
 Swanberg: The Writ of Habeas Corpus
19641 NOTES

of habeas corpus. The judge carefully considered Brown v. Allen"5 and

decided to hold a hearing and determine the evidence for himself.

He heard the witnesses and being convinced that the police offi-
cers were not telling the truth, made finding that Gonzales'
claim of coercion was supported by the evidence, and that the
alleged beating did in fact occur and cause the confession. He
held that Gonzales was illegally detained and must be granted
a new trial or released. 66

Gonzales was never tried again because the state had insufficient
evidence for conviction without the confession. Judge Pope cites the
incident with approval indicating that the district judge had indeed
found the meritorious habeas applicant. Yet how can he be so sure?
The state trial court chose to take the word of several policemen over
that of the defendant. The jury was convinced beyond a reasonable
doubt. Yet the federal district judge chose to take the word of the de-
fendant over that of the police.

A point is reached in any litigation when the processes of the legal

system have made a factual determination as close to absolute certainty
as possible. At this point, legal certainty has been reached and the chance
of error minimized as much as possible. To redetermine or relitigate at
this point will not increase the number of absolutely correct decisions.
It will only increase the number of defendants that are set free.
In seems inescapable that the federal district judge's chance of com-
ing to the correct conclusion is the same as that of the jury which first
decided the case. If we assume as an arbitrary figure that a jury will
correctly decide that a person is guilty in ninety-nine out of every 100
cases, then a decision should be allowed to stand unless it can be shown
that another court can increase this percentage. If another court cannot
increase the percentage, then by reversing or deciding differently, it will
be releasing ninety-nine guilty persons in order to release one innocent. In
the Gonzales case, the federal district court had the same evidence before
it and based its decision on the same legal principles. It shows no reason
to be able to more correctly decide the case than did the original jury.
It is well established that some guilty must go free so as not to con-
vict the innocent. But does this mean that the same facts ought to be
constantly relitigated on the chance that some one judge or one particu-
lar court may be convinced by the defendant's uncorroborated state-
ments? Such a procedure will certainly set more defendants free, but
will it increase the percentage of "actually correct" decisions? It would

6Supra note 27.

Address of Judge Walter L. Pope, Conference of the Ninth Judicial Circuit, August
2, 1962, in Applications for Writs of Habeas Corpus and Post Conviction Review of
Sentences in the United States Courts, 33 F.R.D. 363, 420 (1963). [hereinafter cited
as Habeas Corpus and Post Conviction Review]. The case was affirmed on appeal
with the court refusing to look to the merits of the matter. Cranor v. Gonzales, 226
Published byF.2d
The Scholarly
83 (9th Forum @ Montana Law, 1964
Cir. 1955). 13
 Montana Law Review, Vol. 26 [1964], Iss. 1, Art. 3
MONTANA LAW REVIEW [Vol. 26,

seem that as long as it is realized there can never be actual certainty in

criminal matters, the concept of letting the guilty go free to protect the
innocent ought to dictate that all defendants be acquitted and all pris-
oners set free. If this is patent nonsense, then where should the line be
drawn? It is contended that the line ought to be drawn at -that place
where the percentage of actually correct decisions ceases to go up. To
ascertain this, it is necessary to direct one's attention not to the actual
facts of the case involved but rather to the methods and procedures by
which the defendant was convicted. If they are reasonably calculated to
ascertain the truth, then the results of that decision ought to stand. At
that point, the process of justice will have ground its way to a solution
and overturning that decision will not lead to a higher percentage of
"correct" solutions. It will only lead to a releasing of more defendants.
A certain percentage of these will be innocent, but it is contended the
percentage will not be any greater than it would be if all the prisoners
in the penitentiaries were set free.

The role of the Supreme Court in this field should only be to deter-
mine if the processes used by the state courts were reasonably calculated
to determine the truth of the matter. The Supreme Court should not
attempt to substitute its interpretation of the facts for those of the state
court. As Justice Jackson stated in concurring in Brown v. Allen

Whenever decisions of one court are reviewed by another,

a percentage of them are reversed. That reflects a difference in
outlook normally found between personnel comprising different
courts. However, reversal by a higher court is not proof that jus-
tice is thereby better done. There is no doubt that if there were a
super-Supreme Court, a substantial proportion of our Feversals
of state courts would also be reversed. We are not final be-
cause we are infallible, but we are infallible only because we are
67
final.
The federal court system, it is contended, should consider a policy
of judicial self-restraint. It should limit its participation to exercising
control only over the methods by which the state courts operate and
should not concern itself with the ultimate truth or falsity of any given
set of facts. As triers of fact, they are no better than a state court and
are correct in no greater a percentage of the cases.
A third major reason for the expansion of the federal habeas corpus
jurisdiction is the gross inadequacy of state post-conviction remedies for
handling federal constitutional claims.6 8 For many defendants, "the fed-
eral habeas corpus remedy is the only possible forum for adjudication of
[constitutional] rights."'6 9 Only two post-conviction remedies are gen-
erally available. The state writ of habeas corpus is an extremely limited

07Supra note 24, at 540.

0Fay v. Noia, supra note 51, is an outstanding example.
https://scholarship.law.umt.edu/mlr/vol26/iss1/3
OReitz, supra note 63, at 464. 14
 1964] Swanberg: TheNOTES
Writ of Habeas Corpus

common law writ which tests only the jurisdiction of the authority im-
posing the restraint.70 It is, by its very nature, ineffective to handle
questions of due process. 7' The other is the writ of error coram nobis.
Although it has occasionally been used as a means of vindicating a peti-
tioner's constitutional rights in state court,7 2 the common law scope of the
writ was such that it would not issue to test constitutional issues.'. "

While both habeas corpus 7 4 and coram nobis have been somewhat
expanded in light of the recent trend in the Supreme Court of the United
States, there is much left to be done. 5 As long as it is left undone, the job
of testing constitutional issues in post-conviction procedures must go to
the federal courts by default. The two recent Supreme Court habeas
corpus cases are good illustrations. In Townsend v. Sain,7' petitioner was
not allowed a hearing on his claim of newly discovered evidence because
the issue of coercion was res judicata. This was so even though peti-
tioner was utilizing one of the most modern post-conviction remedy pro-
cedures in the county.77 Fay v. Noia7 8 provides a second example. Noia
was denied post-conviction relief because his "failure to pursue the usual
and accepted appellate procedure to gain a review does not entitle him
'' °
later to utilize . . . coram nobis. 7
The importance that the Supreme Court attaches to the need for
post-conviction remedies can be gathered from noting that at least four
of the six times habeas corpus will issue, 0 according to the test laid down
in the Sain case, 8 ' would be eliminated by adequate post-conviction remedy
procedures. The 1953 Conference of Chief Justices, while attacking the
enlargement of federal habeas corpus, recognized that little could be
done to restrict the scope of federal habeas corpus until state procedures
were corrected. The Conference adopted unanimously that part of a re-
port of a committee on habeas corpus calling for sweeping state re-

701 BAILEY, HABEAS CORPUS AND SPECIAL REMEDIES §§ 29-33 (1913).

'Montana is typical in this respect. REVISED CODES OF MONTANA, 1947, § 94-101-14

states that the writ will not lie "if it appears that he [the habeas corpus applicant]
is detained in custody- . . . 2. By virtue of the final judgment or decree of any
competent court of criminal jurisdiction, or of any process issued upon such judg-
ment or decree."
7
1E.g., Randall v. Whitman, 88 Ga.App. 803, 78 S.E.2d 78 (1953).
78
Briggs, "Coram Nobis"-Is it Either an Available or the Most Satisfactory Post-
Conviction Remedy to Test Constitutionality in Criminal Proceedings, 17 MONT. L.
REV. 160 (1956). See also the description of the nature of the writ in Commonwealth
ex rel. Spader v. Myers, 190 Pa. Super. 62, 152 A.2d 787 (1959).
"See, e.g., People v. Adamson, 34 Cal.2d 320, 210 P.2d 13 (1949).
' 0For a summary of what the various states are doing to correct procedural deficiencies,
see Reitz, supra note 63, at 466-472.
7
'Supra note 39.
"Illinois Post-Conviction Hearing Act, ILL. ANN. STAT. ch. 38, §§ 122-27 (Smith-Hurd
1964).
'8Supra note 51.
7170 N.Y.S.2d 799, 804, 148 N.E.2d 139, 143 (1958).
'OSee discussion, supra note 48.
'Supra note 39.
Published by The Scholarly Forum @ Montana Law, 1964 15
 Montana Law Review, Vol.
MONTANA LAW 26 [1964], Iss. 1, Art. 3
REVIEW [Vol. 26,

2
forms. If such procedures tend to lengthen litigation and prolong
finality, there seem to be necessary evils inherent in the problem of pro-
tecting constitutional rights. As Judge Irving R. Kaufman stated:
8 s3
"Finality is a good thing but justice is even better.
The fourth and final reason seen by this writer for the expansion
of the writ of habeas corpus concerns the respective merits of the federal
and state court systems as seen by the United States Supreme Court.
This is illustrated by a recent Supreme Court case."4 The case turned on
whether a litigant who had filed his case in federal court could return
to federal court for a determination of federal questions after he had
been sent to a state court for determination of state-law issues.8 5 The
Supreme Court recognized that the constitutional issue involved will
often be decided by how the facts are found and then continued: "Lima-
iting the litigant to review here [from a state court's determination of the
facts] would deny him the benefit of a federal trial court's role in con-
structing a record and making fact findings."'8 6 (Emphasis added.) In
concurring in the result, Mr. Justice Douglas is even more explicit. He
states: "Today we put federal jurisdiction in jeopardy. As the Court
says there are many advantages in a federally constructed record. More-
over, federal judges appointed for life are more likely to enforce the con-
87
stitutional rights of unpopular minorities than elected state judges."
The trend demonstrated by the recent Supreme Court cases has re-
sulted in many problems and much opposition. Perhaps the biggest prob-
lem has been the increasing number of habeas corpus applications that
the federal courts must pass on. Since 1940, the number of petitions
filed has increased steadily from 12788 to 1,232 in 1962.89 Between 1946
and 1952, 3,702 petitions were applied for but only sixty-seven were
granted.90 With an already overworked judiciary9 and every reason to
believe that the number of habeas corpus applications will increase,
there is cause for concern. However, even more striking, perhaps, is the

8Report of the Conference of Chief Justices, Aug. 14, 1954, printed in H. IR. Rep.
No. 1293, 85th Cong., 2d Sess. 7 (1958).
83The Supreme Court and its Critics, Atlantic, Dec. 1963, p. 47.
8'England v. State Bd. of Medical Examiners, 84 S.Ct. 461 (1964).
"The Court held that the litigant could return to federal court, but later litigants would
have to expressly state that they wished to return.
mSupra note 84, at 465.
111d. at 471.
"Speck, Statistics on Federal Habeas Corpus, 10 O1Io ST. L.J. 337 (1949). Also
shown are the following years and number of petitions: 1943, 269 petitions filed;
1948, 543 petitions filed; and, 1952, 541 petitions filed.
8Fay v. Noia, supra note 51, n.2 (Clark, J., dissenting). Also given are the following
years: 1960, 872 petitions filed, and 1961, 906 petitions filed.
-Brown v. Allen, 344 U.S. 443, 498 (1953).
91
An interesting study of this problem has been made by Professor Hart, The Time
Chart of the Justices, supra note 19, at 85-94. In the article the author finds that
each Supreme Court Justice has available 1728 hours of working time to cope with
this load. The October, 1957, term saw for the first time the number of cases reach
1765 and thus pass the number of working hours. This allows one hour per case per
justice or a total of nine hours to hear oral arguments, discuss, research and write
opinions.
https://scholarship.law.umt.edu/mlr/vol26/iss1/3 16
 1964] Swanberg: The NOTES
Writ of Habeas Corpus

drop in percentages of petitions granted from 2.8% in 1946 to 1.8% in

195292 and an over-all average from 1946 through 1957 of 1.4%Y. Al-
though the figures vary sufficiently to be suspect, if true, they show that
the number of petitions applied for must double just to release the same
number of prisoners. In other words, the 500 plus applications in 1946
resulted in success for only fifteen applicants while the 1,200 plus in
1962, using the 1957 percentage, resulted in the release of only seventeen
prisoners. An increase of 700 applications resulted in the release of only
two extra prisoners. Justice Jackson foresaw this situation when he
stated in a concurring opinion in Brown v. Allen:
[T] his Court has sanctioned progressive trivialization of the writ
until floods of stale, frivolous and repetitious petitions inundate
the docket of the lower courts and swell our own. Judged by our
own disposition of habeas corpus matter, they have, as a class,
become peculiarly undeserving. It must prejudice the occasional
meritorious application to be buried in a flood of worthless ones.
He who must search a haystack for a needle is likely to end
9 4
up with the attitude that the needle is not worth the search.

It is further to be noted that the granting of the habeas corpus peti-

tion does not insure freedom. A study of the years 1949-1952 "shows
that out of 29 petitions granted, there were only 5 petitioners who were
released from state penitentiaries."9 5 Finally, it is interesting to note
that Joliet prison in Illinois churns out 3,000 legal documents per year
that some court must consider.9 6 One might legitimately wonder if the
gain is worth the energy expended.
A related problem concerns the vast number of petitions that must
be accorded hearing in which the claim is wholly without merit and in
many instances an empty lie. Mr. Justice Pope, senior circuit judge of
the Ninth Circuit lists several such examples, one of which is worth re-
producing here:
Take the case of Price whose petition against the warden,
Johnston, was passed upon by the Supreme Court on May 24,
1948.91 When he filed his fourth petition in the District Court,
it was dismissed without a hearing. He appealed and his case
promptly became a cause celebre. The appeal was heard twice,
once before a panel of the court when Price was allowed to ap-
pear and argue for himself, and again before the whole court
sitting in bank. The District Court was affirmed. The Supreme

"2Brown v. Allen, supra note 90, at 537 n.10 (Jackson, J., concurring).
"3Fay v. Noia, supra note 51, at 852 n.1 (Clark, J., dissenting).
"Supra note 90, at 536.
5
O Brown v. Allen, supra note 90, at 498. Mr. Justice Frankfurter in concurring quoted
from Habeas Corpus in the Federal Courts Brought by State Prisoners, AD. OFFICE
OF THE U.S. CoURTs 4 (Dec. 16, 1952).
"6Habeas Corpus and Post Conviction Review, 33 F.R.D. 363, 411 (1963).
-1334 U.S. 266 (1947).
Published by The Scholarly Forum @ Montana Law, 1964 17
 Montana Law Review, Vol.
MONTANA LAW 26 [1964], Iss. 1, Art. 3
REVIEW [Vol. 26,

Court reversed and remanded the case to the District Court.

By now Price had become almost as famous as Chessman. The
opinion of the Supreme Court began with these words:
"The writ of habeas corpus has played a great role in the
history of human freedom. It has been the judicial method of
lifting undue restraints upon personal liberty."
The only trouble with these noble words was that, true as
they were, they had' no possible application to Price. When the
District Court heard the evidence, it found that Price's claim that
the prosecution had knowingly used perjured testimony was
utterly false; no such thing had occurred. And when Price
appealed again, Judge Denman, who had dissented from the
earlier affirmances, wrote the opinion affirming the denial of the
writ, demonstrating that the claim was utterly frivolous.
Price was not a complete loser as every prisoner knew. His
name had made headlines; he had trips to the courthouse; he
could gloat that he won a case in the Supreme Court. So why
should not some other prisoner try the same thing?9"
Other examples can be found in Justice Jackson's concurring opinion
in Brown v. Allen where he states: "Certainly the use of the federal courts
as aids in such delaying tactics as evidenced here does not elevate the
stature of the writ of habeas corpus. We have no mythical abuse here but
a very real problem of harrassment of the state." 911
The test laid out in the Sain case' 00 does much to compound the prob-
lem. As will be remembered, the case stated instances where a hearing
must be granted. Six instances were listed. 1 1 All of them turn on alle-
gations of fact. It is to be wondered if the federal judge can ever meet
these tests without a hearing on the merits.
The requirements for making application for the writ of habeas
corpus are quite easy. 10 2 A person who wishes to apply needs only a
verified affidavit. The facts he alleges are pretty much up to his own
discretion or imagination. If he wishes to claim a coerced confession, he
need only to allege he was beaten or whipped using a rubber hose so as
to leave no incriminating marks. Perhaps the prisoner would rather add
variety and allege a prosecution witness committed perjury. The prison-
er then types it up on a prison typewriter (or perhaps he wishes the air
of sincerity of the handwritten paper) and sends it to the nearest district

-Supra note 96, at 414.

9'Supra note 90, at 537 n.11.
"'Townsend v. Sain, 372 U.S. 293 (1963).
lnSupra note 100, at 313.
10228 U.S.C. § 2242 (1958) provides in part: "Application for a writ of habeas corpus
shall be in writing signed and verified by the person for whose relief it is intended
or by someone acting in his behalf. It shall allege the facts concerning the appli-
cant's commitment or detention, the name of the person who has custody over him
and by virtue of what claim or authority, if known."
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 Swanberg: The Writ of Habeas Corpus
19641 NOTES

judge. A hearing now must be held. A few hours are wasted in the hear-
ing and the prisoner returns to jail. He has gained a few hours outside
the prison, added a bit of variety to his life with the added enticement
that some judge might take his word over that of the police. At least
he has had some fun. Further, this is done at no risk to himself. Even
if he is occasionally caught perjuring himself, this is insignificant to the
convict serving a long term.
A second major problem that has developed is the delay in federal
and state courts. Some of the cases already discussed show this problem.
Petitioner in the Sain case' 0 3 was convicted in 1955. In 1957, the Supreme
Court denied certiorari to the state court.10 4 It then took five more years
to reach the U. S. Supreme Court which sent the case back for a hearing
on the merits. Petitioner in Rogers v. Richmond' ° 5 was convicted in 1954.
It took seven years to prosecute the writ of habeas corpus to the Supreme
Court. Again the Supreme Court only decided that the wrong standard
had been used in determining the admissibility of a confession. Perhaps,
however, the worst abuse in this respect is found in the Noia case.' 0 6 The
three defendants were convicted in 1942 and it was not until 1955 that
Caminito was finally released. 01' At this point Noia started the proceed-
ings that resulted in the 1963 decision. By 1963 Noia had been in jail
for twenty-one years.
There are several points to be noted as a result of these cases. For
the innocent prisoner, it is a long time to spend in prison for a crime he
did not commit. For the guilty, it allows evidence for a retrial to dis-
appear. If Mr. Noia is guilty, conviction on retrial twenty-one years after
the commission of the crime is highly unlikely. And this is a very com-
mon situation. Rogers v. Richmond is an illuminating example.' 08 Con-
necticut had used to determine the admissibility of a confession a test
based on the probable truth or falsity of the confession (a test also used
by Montana). In determining this to be an incorrect standard, the Court
stated:
Indeed, in many of the cases in which the command of the Due
Process Clause has compelled us to reverse state convictions
involving the use of confessions obtained by impermissible
methods, independent corroborating evidence left little doubt of
the truth of what the defendant had confessed. 0 9
The test to be applied is "[W] hether the behavior of the State's law
enforcement officials was such as to overbear petitioner's will to resist
and bring about confessions not freely self-determined--a question to be
103
Supra note 100.
'Townsend v. Illinois, 355 U.S. 850 (1957).
105365 U.S. 534 (1961).
'-Supra note 51.
i°7U.S, ex rel. Caminito v. Murphy, 222 F.2d 698 (1955).
1
O'Supra note 105.
1
1 Id.
Published by The Scholarly Forum @ Montana Law, 1964
at 541. 19
 Montana Law Review, Vol. 26 [1964], Iss. 1, Art. 3
MONTANA LAW REVIEW [Vol. 26,

answered with a complete disregard of whether or not petitioner in fact

spoke the truth." ' 10

How long is this "independent corroborating evidence" going to

last? Mr. Rogers will be retried on a charge o~f murder ten years after
the shooting. Is that evidence still going to be available?

Also a delay of ten years or more limits the nuraber of prisoners

benefitted by habeas corpus to those sentenced to long prison terms.
One does not need to read far in a study of habeas corpus to notice the
similarity of crimes involved in the cases. Of the cases discussed in this
article, Noia, Rogers, Leyra, Irvin, Townsend, Frank, and two of the four
petitioners in Brown v. Allen were convicted on murder charges. The
other two petitioners in Brown v. Allen were sentenced to death for rape,
leaving only Darr who was not given either life imprisonment or a death
sentence. (Darr received only eighty years.) It has been said that the
wheels of justice grind exceedingly slowly but perhaps they ought to
grind with less discrimination.

However, it should be noted that some of the delay may well have
been eliminated by the Sain case."' Allowing a writ of habeas corpus to
issue without the necessity of first asking the Supreme Court for a writ
of certiorari will aid some. More important however, is the requirement
that federal district courts must hold a hearing. Although this requirement
is very likely to clog lower federal court calendars, it has the advantage
of requiring the court to decide the allegation on the merits at a much
1 12
earlier point in the proceedings, and thus avoid continued litigation.
The third and final problem caused by the expansion of federal
habeas curpus jurisdiction to be discussed is the increasing dominance of
the role played by federal courts with the corresponding eclipse of that
sphere left to the states.
The idea of two distinct court systems, one judging state matters
and the other federal matters, is unique to this country. The theory has
always been that each is the final arbiter in its own field. However,
with the recent expansion of the fourteenth amendment, there has been
a steady encroachment by the federal judiciary into what had earlier been
considered as within the sole province of state courts. In criminal mat-
ters, it has reached the point where one can say with some validity, that
state courts are merely inferior federal courts. It has reached the stage
where one federal judge can overrule the combined decision of all the
state courts that tried the matter. 1 3
It is often said that since federal judges can only release a prisoner

0
: 1d. at 544.
I'Supra note 100.
2
"11 This benefit could be largely lost if the Supreme Court refused to accept the district
court's interpretation of the facts. See e.g., Leyra v. Denno, 347 U.S. 556 (1954).
"'In a recent Montana case, a federal district judge released the defendant after his
conviction and affirmance by state courts. Application of Tomich, 221 F. Supp. 500
(D. Mont. 1963).
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 Swanberg: The Writ of Habeas Corpus
1964] NOTES

when his constitutional rights have been violated, that federal courts
ought to be given the final decision. Yet such an answer is much too
superficial to be of much aid. The problem is more complicated. In
actuality, it is rare in a criminal case that a state court does not decide
a constitutional question and seldom that the federal question does not in
turn embrace state law which is clearly constitutional. 114 This close
interrelation of state and federal questions leads to many complex prob-
lems in civil as well as in criminal cases. To answer these problems and
make federalism work in the criminal law field requires close co-opera-
tion between state and federal jurisdictions. Yet it is all too common for
state courts to react to the recent trend as did Chief Justice Weygandt
of the Ohio Supreme Court when he stated: "Our penitentiary has as
many curbstone lawyers as any other state penitentiary, but we at least
have a consistent record in Ohio that we have never allowed one of these
'
writs of habeas corpus. "11

If state courts are going to take pride in refusing to clean their

own house, and are going to obey Supreme Court decisions only grudg-
ingly, then many needed reforms are going to be made by the federal
courts and state courts will relinquish by default their right to an inde-
pendent criminal judiciary. State legislatures and courts must realize
that the concept of criminal justice is changing, and that the law which
only a few years ago gave adequate protection to the accused now falls
far short of providing even minimal protection under the Constitution.
Lawyers, judges, and legislators can argue rationally or emotionally on
the subject of "federal encroachment" but as long as they do not act, that
"federal encroachment" will continue.1 1 6

Specifically, this means that state criminal procedures must undergo

extensive changes to provide a person charged with a crime more com-
plete protection. Concerning federal habeas corpus proceedings, it means
that state post-conviction remedies must be expanded.' 1 7 If the states
would create their own corrective procedures, many cases now reaching
federal courts with a resultant release of the defendant could be dis-
posed of on the state level.
However, it does seem that the federal courts have gone too far in
overturning state decisions. The abuse of a state rule of procedure, no mat-
ter how valid, no matter how necessary for orderly court procedure, can
no longer be used to deprive a person of a federal right. Yet there must

ME.g., Fay v. Noia, supra note 51; Darr v. Burford, 339 U.S. 200 (1950).
5
Reitz, supra note 63, at 472.
"'AMapp v. Ohio, 367 U.S. 643 (1961) is an excellent example. Anyone who reads this
case and is familiar with the earlier cases concerning the fourteenth amendment and
the exclusionary rule cannot help but be struck by the fact that had Ohio been more
willing to conform to the present trend, society would not now be facing the possible
retroactive release of all prisoners who were convicted in violation of the fourteenth
amendment. For a discussion of this problem, see, Collateral Attack of Pre-Mapp v.
Ohio Convictions Based on Illegally Obtained Evidence in State Courts, 16 RUTGERS
L. REV. 587 (1962).
"'For a summary of what has been done see Beitz, supra note 63, at 466-472.
Published by The Scholarly Forum @ Montana Law, 1964 21
 Montana Law Review, Vol. 26 [1964], Iss. 1, Art. 3
MONTANA LAW REVIEW [Vol. 26,

come a time when the interests of society in an orderly state court sys-
tem outweight the interests of those who would abuse that system. There
must come a time when the interests of society in keeping criminals off
the street overcomes that criminal's right to abuse the law of the state's
appellate procedure under the guise of a constitutional right.
Mr. Justice Cardoza once stated: "The criminal is to go free because
the constable blundered. ' 118 This is not quite so true today. Often the
question should be: "Should the criminal go free because the Supreme
Court changed its position?" It is no longer completely accurate to say
that the police officer violated the Constitution in his action. All that
can often be said is that the police officer failed to predict what the
Supreme Court would hold ten years later. Has there really been a vio-
lation of a constitutional right when a state court interprets the case law
correctly, thereby upholding a conviction, and later the Supreme Court
overrules or severely limits the cases relied on? The average life of a
Supreme Court decision is twenty-three years." 9 Darr v. Burford120 was
overruled only thirteen years after it was handed down. Wolf v. Colo-
rado 121 lasted only twelve years. 122 Will the writ of habeas corpus now
lie for legitimate convictions under these overruled cases? The problem
here is much too fundamental to be answered by concluding there is an
overriding federal policy. The Constitution is a living document meant
to be expanded. But this expansion ought to be consistent with estab-
lished procedure and people should be able to rely on what the Supreme
Court has said.

CONCLUSION

A constant relitigation of the same facts serves no useful purpose

if the tribunal which first acted did a competent job. As discussed
earlier 1 2 a point is reached in litigation of cases where a factual redeter-
mination of the issues is not going to improve the percentage of correct
decisions. This is especially true where the second hearing to determine
the facts occurs many years after the original conviction. If this is as-
sumed as a basic premise, then it follows that the federal court when
presented with a writ of habeas corpus ought not to concern itself with
the factual matters involved but rather should look to the adequacy of
the process by which the defendant was convicted. In other words, the
writ of habeas corpus should be directed primarily to those areas in
which the nature of the alleged violation goes to the failure to provide a
constitutional process, i.e., one that is likely to have failed to provide a

lsPeople v. Defore, 224 N.Y. 13, 150 N.E. 585, 587 (1924).
"'Douglas, Stare Decisis, 49 OOLUM. L. REv. 735, 757 (1949).
,"Darr v. Burford, supra note 114.
'338 U.S. 25 (1949).
-It was overruled by Mapp v. Ohio, supra note 116.
"Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76
HARV. L. REv. 441 (1963), and accompanying text.
https://scholarship.law.umt.edu/mlr/vol26/iss1/3 22
 Swanberg: The Writ of Habeas Corpus
1964] NOTES

reasonably adequate tribunal in which to determine guilt or innocence.

Thus, an allegation that the petitioner was not represented by adequate
counsel would be properly entertained by a federal district judge. The
same result would follow if the defendant claimed the trial was domin-
ated by a mob or that a witness had perjured himself. On the other hand,
if these matters had been raised by the defendant in the state courts and
there had been a factual determination made against him, this ought to
end the matter. The federal courts should intervene only in those in-
stances when there has been an allegation, untested in state courts, that
24
the machinery by which the facts were found was deficient.
If the federal courts would limit their inquiry to a determination of
the competency of the fact finding tribunal, and the states would under-
take a thorough revision of their post-conviction remedies, most of the
problems heretofore discussed would be eliminated. The accused would
receive the benefit of a quicker determination of his claims while the fed-
eral judiciary would be relieved of the mounting numbers of petitions for
writs of habeas corpus. But this can happen only if state and federal
judges and legislators are willing to attempt to understand the problems
faced by the others. It can never happen if each looks upon the other
with distrust and suspicion. And all too often, it is the latter, rather
than understanding and cooperation, which governs attempts to solve
the problems facing our federal system.
GORHAM SWANBERG.

'24 1t ought to be remembered at thi point that most substantive changes in criminal
law on the constitutional level are made by direct appeal to the Supreme Court.
Thus, any change in habeas corpus procedures will not in any way affect the ways
in which normal law is made and changed.
Published by The Scholarly Forum @ Montana Law, 1964 23