The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_1030/91_1030.zx1

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SUPREME COURT OF THE UNITED STATES
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No. 91-1030
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PAMELA WITHROW, PETITIONER v. ROBERT
ALLEN WILLIAMS, Jr.
on writ of certiorari to the united states court
of appeals for the sixth circuit
[April 21, 1993]

  Justice Scalia, with whom Justice Thomas joins,
concurring in part and dissenting in part.
  The issue in this case-whether the extraordinary
remedy of federal habeas corpus should routinely be
available for claimed violations of Miranda
rights-involves not jurisdiction to issue the writ, but the
equity of doing so.  In my view, both the Court and
Justice O'Connor disregard the most powerful equitable
consideration: that Williams has already had full and fair
opportunity to litigate this claim.  He had the opportunity
to raise it in the Michigan trial court; he did so and lost.
He had the opportunity to seek review of the trial court's
judgment in the Michigan Court of Appeals; he did so and
lost.  Finally, he had the opportunity to seek discretionary
review of that Court of Appeals judgment in both the
Michigan Supreme Court and this Court; he did so and
review was denied.  The question at this stage is whether,
given all that, a federal habeas court should now reopen
the issue and adjudicate the Miranda claim anew.  The
answer seems to me obvious: it should not.  That would
be the course followed by a federal habeas court reviewing
a federal conviction; it mocks our federal system to accord
state convictions less respect.
                            I
  By statute, a federal habeas court has jurisdiction over
any claim that a prisoner is -in custody in violation of the
Constitution or laws- of the United States.  See 28
U. S. C. 2241(c)(3), 2254(a), 2255.  While that
jurisdiction does require a claim of legal error in the
original proceedings, compare Herrera v. Collins, 506 U. S.
___ (1993), it is otherwise sweeping in its breadth.  As
early as 1868, this Court described it in these terms:
      -This legislation is of the most comprehensive
character.  It brings within the habeas corpus
jurisdiction of every court and of every judge every
possible case of privation of liberty contrary to the
National Constitution, treaties, or laws.  It is
impossible to widen this jurisdiction.-  Ex parte
McCardle, 6 Wall. 318, 325-326 (1868).
Our later case law has confirmed that assessment.
Habeas jurisdiction extends, we have held, to federal
claims for which an opportunity for full and fair litigation
has already been provided in state or federal court, see
Brown v. Allen, 344 U. S. 443, 458-459 (1953); Kaufman
v. United States, 394 U. S. 217, 223-224 (1969); to
procedurally defaulted federal claims, including those over
which this Court would have no jurisdiction on direct
review, see Fay v. Noia, 372 U. S. 391, 426, 428-429
(1963); Kaufman, supra, at 223; Wainwright v. Sykes, 433
U. S. 72, 90-91 (1977); Coleman v. Thompson, 501 U. S.
___, ___ (1991) (slip op., at 24-25); and to federal claims
of a state criminal defendant awaiting trial, see Ex parte
Royall, 117 U. S. 241, 251 (1886).
  But with great power comes great responsibility.
Habeas jurisdiction is tempered by the restraints that
accompany the exercise of equitable discretion.  This is
evident from the text of the federal habeas statute, which
provides that writs of habeas corpus -may be
granted--not that they shall be granted-and enjoins the
court to -dispose of the matter as law and justice require.-
28 U. S. C. 2241(a), 2243 (emphases added).  That
acknowledgment of discretion is merely the continuation
of a long historic tradition.  In English law, habeas corpus
was one of the so-called -prerogative- writs, which
included the writs of mandamus, certiorari, and
prohibition.  Duker, The English Origins of the Writ of
Habeas Corpus: A Peculiar Path to Fame, 53 N. Y. U. L.
Rev. 983, 984 n. 2 (1978); 3 W. Blackstone, Commentaries
132 (1768).  -[A]s in the case of all other prerogative
writs,- habeas would not issue -as of mere course,- but
rather required a showing -why the extraordinary power
of the crown is called in to the party's assistance.-  Ibid.
And even where the writ was issued to compel production
of the prisoner in court, the standard applied to determine
whether relief would be accorded was equitable: the court
was to -determine whether the case of [the prisoner's]
commitment be just, and thereupon do as to justice shall
appertain.-  1 id., at 131.
  This Court has frequently rested its habeas decisions on
equitable principles.  In one of the earliest federal habeas
cases, Ex parte Watkins, 3 Pet. 193, 201 (1830), Chief
Justice Marshall wrote: -No doubt exists respecting the
power [of the Court to issue the writ]; the question is,
whether this be a case in which it ought to be exercised.-
And in Ex parte Royall, the Court, while affirming that
a federal habeas court had -the power- to discharge a
state prisoner awaiting trial, held that it was -not bound
in every case to exercise such a power,- 117 U. S., at 251.
The federal habeas statute did -not deprive the court of
discretion,- which -should be exercised in the light of the
relations existing, under our system of government,
between the judicial tribunals of the Union and of the
States,- ibid.
  This doctrine continues to be reflected in our modern
cases.  In declining to extend habeas relief to all cases of
state procedural default, the Court in Fay v. Noia said:
-Discretion is implicit in the statutory command that the
judge . . . `dispose of the matter as law and justice
require,' 28 U. S. C. 2243; and discretion was the flexible
concept employed by the federal courts in developing the
exhaustion rule.-  372 U. S., at 438.  See also Wainwright
v. Sykes, supra, at 88.  In fashioning this Court's
retroactivity doctrine, the plurality in Teague v. Lane, 489
U. S. 288, 308-310 (1989), also relied on equitable
considerations.  And in a case announced today, holding
that the harmless-error standard for habeas corpus is less
onerous than the one for direct review, the Court carries
on this tradition by expressly considering equitable
principles such as -finality,- -comity,- and -federalism.-
Brecht v. Abrahamson, ___ U. S. ___, ___ (1993) (slip op.,
at 14-15).  Indeed, as Justice O'Connor notes, this
Court's jurisprudence has defined the scope of habeas
corpus largely by means of such equitable principles.  See
ante, at 2-4.  The use of these principles, which serve as
-gateway[s]- through which a habeas petitioner must pass
before proceeding to the merits of a constitutional claim,
-is grounded in the `equitable discretion' of habeas courts.-
Herrera v. Collins, supra, at ___ (slip op., at 12-13).
                           II
  As the Court today acknowledges, see ante, at 4-5, the
rule of Stone v. Powell, 428 U. S. 465 (1976), is simply
one application of equitable discretion.  It does not deny
a federal habeas court jurisdiction over Fourth
Amendment claims, but merely holds that the court ought
not to entertain them when the petitioner has already had
an opportunity to litigate them fully and fairly.  See id.,
at 495, n. 37.  It is therefore not correct to say that
applying Stone to the present case involves -eliminating
review of Miranda claims- from federal habeas, ante, at
11, or that the Court is being -asked to exclude a
substantive category of issues from relitigation on habeas,-
ante, at 4 (opinion of O'Connor, J.).  And it is therefore
unnecessary to discuss at length the value of Miranda
rights, as though it has been proposed that since they are
particularly worthless they deserve specially disfavored
treatment.  The proposed rule would treat Miranda claims
no differently from all other claims, taking account of all
equitable factors, including the opportunity for full and
fair litigation, in determining whether to provide habeas
review.  Wherein Miranda and Fourth Amendment claims
differ from some other claims, is that the most significant
countervailing equitable factor (possibility that the
assigned error produced the conviction of an innocent
person) will ordinarily not exist.
  At common law, the opportunity for full and fair
litigation of an issue at trial and (if available) direct
appeal was not only a factor weighing against reaching
the merits of an issue on habeas; it was a conclusive
factor, unless the issue was a legal issue going to the
jurisdiction of the trial court.  See Ex parte Watkins,
supra, at 202-203; W. Church, Habeas Corpus 363
(1884).  Beginning in the late 19th century, however, that
rule was gradually relaxed, by the device of holding that
various illegalities deprived the trial court of jurisdiction.
See, e.g., Ex parte Lange, 18 Wall. 163, 176 (1874) (no
jurisdiction to impose second sentence in violation of
Double Jeopardy Clause); Ex parte Siebold, 100 U. S. 371,
376-377 (1880) (no jurisdiction to try defendant for
violation of unconstitutional statute); Frank v. Mangum,
237 U. S. 309 (1915) (no jurisdiction to conduct trial in
atmosphere of mob domination); Moore v. Dempsey, 261
U. S. 86 (1923) (same); Johnson v. Zerbst, 304 U. S. 458,
468 (1938) (no jurisdiction to conduct trial that violated
defendant's Sixth Amendment right to counsel).  See
generally Wright v. West, 505 U. S. ___, ___ (1992) (slip
op., at 6-7) (opinion of Thomas, J.); Fay, supra, at
450-451 (Harlan, J., dissenting).  Finally, the
jurisdictional line was openly abandoned in Waley v.
Johnston, 316 U. S. 101, 104-105 (1942).  See P. Bator,
D. Meltzer, P. Mishkin & D. Shapiro, Hart and Wechsler's
The Federal Courts and the Federal System 1502 (3d ed.
1988) (hereinafter Hart and Wechsler).
  But to say that prior opportunity for full and fair
litigation no longer automatically precludes from
consideration even nonjurisdictional issues is not to say
that such prior opportunity is no longer a relevant
equitable factor.  Reason would suggest that it must be,
and Stone v. Powell, 428 U. S. 465 (1976), establishes that
it is.  Thus, the question before us is not whether a
holding unique to Fourth Amendment claims (and resting
upon nothing more principled than our estimation that
Fourth Amendment exclusion claims are not very
important) should be expanded to some other arbitrary
category beyond that; but rather, whether the general
principle that is the only valid justification for Stone v.
Powell should for some reason not be applied to Miranda
claims.  I think the answer to that question is clear: Prior
opportunity to litigate an issue should be an important
equitable consideration in any habeas case, and should
ordinarily preclude the court from reaching the merits of
a claim, unless it goes to the fairness of the trial process
or to the accuracy of the ultimate result.
  Our case law since Stone is entirely consistent with this
view.  As the Court notes, ante, at 5-6, we have held that
the rule in Stone does not apply in three cases.
Kimmelman v. Morrison, 477 U. S. 365 (1986) involved
alleged denial of the Sixth Amendment right to counsel,
which unquestionably goes to the fairness of the trial
process.  Rose v. Mitchell, 443 U. S. 545 (1979) involved
alleged discrimination by the trial court in violation of the
Fourteenth Amendment.  We concluded that since the
-same trial court will be the court that initially must
decide the merits of such a claim,- and since the claim
involved an assertion that -the state judiciary itself has
purposely violated the Equal Protection Clause,- no
opportunity for a full and fair state hearing existed.  Id,
at 561; see also id., at 563.  And Jackson v. Virginia, 443
U. S. 307 (1979) involved a claim that -no rational trier
of fact could have found proof of guilt beyond a reasonable
doubt,- id., at 324, which is obviously a direct challenge
to the accuracy of the ultimate result.
                           III
  The rule described above-or indeed a rule even
somewhat more limiting of habeas review than that-is
followed in federal postconviction review of federal
convictions under 28 U. S. C. 2255.  In Kaufman v.
United States, 394 U. S. 217 (1969), which held that res
judicata does not bar 2255 habeas review of
constitutional issues, we stated that a district court had
-discretion- to refuse to reach the merits of a
constitutional claim that had already been raised and
resolved against the prisoner at trial and on direct review.
Id., at 227, n. 8.  Since Kaufman, federal courts have
uniformly held that, absent countervailing considerations,
district courts may refuse to reach the merits of a
constitutional claim previously raised and rejected on
direct appeal.  See, e.g., Giacalone v. United States, 739
F. 2d 40, 42-43 (CA2 1984); United States v. Orejuela, 639
F. 2d 1055, 1057 (CA3 1981); Stephan v. United States,
496 F. 2d 527, 528-529 (CA6 1974), cert denied sub nom.
Marchesani v. United States, 423 U. S. 861 (1975); see
also 3 C. Wright, Federal Practice and Procedure 593,
p. 439, n. 26 (1982); Note, Developments in the
Law-Federal Habeas Corpus, 83 Harv. L. Rev. 1038,
1064-1066 (1970).  Thus, a prior opportunity for full and
fair litigation is normally dispositive of a federal prisoner's
habeas claim.  If the claim was raised and rejected on
direct review, the habeas court will not readjudicate it
absent countervailing equitable considerations; if the claim
was not raised, it is procedurally defaulted and the habeas
court will not adjudicate it absent countervailing equitable
considerations (e.g., actual innocence or cause and
prejudice, see United States v. Frady, 456 U. S. 152
(1982)).
  Because lower federal courts have not generally
recognized their discretion to deny habeas relief in state
cases where opportunity for full and fair litigation was
accorded, the peculiar state of current federal habeas
practice is this: State courts routinely see their criminal
convictions vacated by federal district judges, but federal
courts see their criminal convictions afforded a substantial
measure of finality and respect.  See Hart and Wechsler
1585.  Only one theory can possibly justify this
disparity-the theory advanced in Fay v. Noia, that a
federal forum must be afforded for every federal claim of
a state criminal defendant.  See 372 U. S., at 418.  In
my view, that theory is profoundly wrong for several
reasons.
  First, it has its origin in a misreading of our early
precedents.  Fay interpreted the holding of Ex parte
Royall-that federal courts had discretion not to entertain
the habeas claims of state prisoners prior to the
conclusion of state court proceedings-as containing the
implication that after conclusion of those proceedings there
would be plenary federal review of all constitutional
claims.  372 U. S., at 420.  In fact, however, Royall had
noted and affirmed the common-law rule that claims of
error not going to the jurisdiction of the convicting court
could ordinarily be entertained only on writ of error, not
on habeas corpus.  117 U. S., at 253.  See Fay, 372 U. S.,
at 453-454 (Harlan, J., dissenting).  See also Schneckloth
v. Bustamonte, 412 U. S. 218, 255 (1973) (Powell, J.,
concurring).  Royall contained no hint of a suggestion that
a federal habeas court should afford state court judgments
less respect than federal court judgments.  To the
contrary, it maintained the traditional view that federal
and state courts have equal responsibility for the
protection of federal constitutional rights.  The discretion
of the federal habeas court -should be exercised,- it said,
-in the light of the relations existing, under our system
of government, between the judicial tribunals of the Union
and of the States, . . . courts equally bound to guard and
protect rights secured by the Constitution.-  117 U. S., at
251.  And in describing the proper disposition of a federal
habeas petition filed after state conviction, Royall cited Ex
parte Lange, 18 Wall. 163 (1874), which involved a federal
habeas attack on a federal conviction.  See 117 U. S., at
253.  Thus, Royall is properly understood as saying that
the federal habeas statute guaranteed state prisoners, not
a federal forum for all their federal claims, but rather the
same rights to federal habeas relief that federal prisoners
possessed.
  Worse than misreading case precedent, however, the
federal right/federal forum theory misperceives the basic
structure of our national system.  That structure
establishes this Court as the supreme judicial interpreter
of the Federal Constitution and laws, but gives other
federal courts no higher or more respected a role than
state courts in applying that -Law of the Land--which
it says all state courts are bound by, and all state judges
must be sworn to uphold.  U. S. Const., Art. VI.  See
Robb v. Connolly, 111 U. S. 624, 637 (1884); Ex parte
Royall, supra, at 251; Brown, 344 U. S., at 499 (opinion
of Frankfurter, J.).  It would be a strange constitution
that regards state courts as second-rate instruments for
the vindication of federal rights and yet makes no
mandatory provision for lower federal courts (as our
Constitution does not).  And it would be an unworkable
constitution that requires redetermination in federal courts
of all issues of pervasive federal constitutional law that
arise in state-court litigation.
  Absent indication to the contrary, state courts should
be presumed to have applied federal law as faithfully as
federal courts.  See Ex parte Royall, supra, at 252; Brecht
v. Abrahamson, ___ U. S., at ___ (slip op., at 15).  A
federal court entertaining collateral attack against a state
criminal conviction should accord the same measure of
respect and finality as it would to a federal criminal
conviction.  As it exercises equitable discretion to
determine whether the merits of constitutional claims will
be reached in the one, it should exercise a similar
discretion for the other.  The distinction that has arisen
in lower-court practice is unsupported in law, utterly
impractical and demeaning to the States in its
consequences, and must be eliminated.
                        *   *   *
  While I concur in Part III of the Court's opinion, I
cannot agree with the rest of its analysis.  I would
reverse the judgment of the Court of Appeals and remand
the case for a determination whether, given that
respondent has already been afforded an opportunity for
full and fair litigation in the courts of Michigan, any
unusual equitable factors counsel in favor of
readjudicating the merits of his Miranda claim on habeas
corpus.