THE FUTURE OF THE ADEQUATE STATE GROUND AS A
LIMITATION ON SUPREME COURT REV IEWOF STATE COURT DEC ISIONS
MIKE DE GEURIN
Supreme Court Review of State Court Judgments
A.
General Limitations
The Constitution does not specifically give the Supreme Court the authority
to review decisions of the state courts. l
However, it does extend the judicial
power of the United States to defined classes of cases, some of which are as
likely to arise in the courts of a state as a federal court.
The Constitution
gives to the Supreme Court appellate jurisdiction over all such cases, other
than those within the original jurisdiction of the Court, with such exceptions
2
and under such regulations as the Congress shall make.
The First Congress passed the famous section 2S of the Judiciary Act of
1789 which authorized Supreme Court review of state court decisions.
3
Even
though the Constitution says that the Court shall have appellate jurisdiction
and gives Congress only the secondary role of making exceptions and regulations,
the Judiciary Act of 1789 and its successors have not set forth exceptions,
instead they have defined the types of cases which the Court may act.
The im-
plication, whether valid or not, is that the Supreme Court can exercise appellate
jurisdiction only in accordance with the acts of Congress.
fortified by repeated assertions of the Supreme Court.
4
This belief has been
From 1789 to 1914, the
jurisdiction over state courts was limited to cases in which the state court had
held some federal act invalid, or had upheld the validity of a state act against
a claim based on the federal Constitution of law.
In 1914, the review power of
the Supreme Court was broadened so that they could hear cases in which the state
court had sustained a federal claim.
S
Under the present statute, review is possible of the final judgment of the
highest court of a state in which a decision could be had in any case where the
validity ·of a treaty or statute of the United States is drawn in question or
where a state's statute is in conflict with the Constitution, a treaty, or a
6
law of the United States.
Jurisdiction rests entirely on the existence of what is referred to as a
"federal question."
The mere presence of a federal question in a state court
7
will not permit review, the question must be "substantia1."
More importantly,
the question of whether there is a federal question presented must be decided
8
by the Supreme Court.
Another requirement is that before the state court decision can be reviewed
by the Supreme Court, the decision must be that of the highest court of the
9
state in which that decision could be had.
Also, review can only be had of
"final judgments or decrees."
This latter limitation is consistant with the
10
As a general rule·,
general aversion of the federal courts to piecemeal review.
the principles applied in determining what is a final judgment of a state court
are the same as those applied to determining what is a final judgment of a
federal district court or court of appeals.
The question of final judgment is
decided by the Supreme Court itself from the circumstances of what has been done
11
and what may still be done within the state judicial system.
The Court may
12
look to any relevant matter, in or out of the record in determining finality.
In recent years, the Court has relaxed the requirement of finality for review
of state court decisions as it has in other areas where a final judgment is re13
quired by statute.
The general test seems ' to be that a judgment is final for
purposes of review if it leaves only ministerial acts, such as entry of judgment
14
in the lower courts.
The federal question must have been raised in a proper and timely manner in
the state court.
The test is whether the claim and the ground therefore is brought
15
to the attention of the state court with fair precision and in due time.
The
question of timeliness is largely a matter for the state to regulate by its procedural rules.
If the appellant fails to raise the question at the stage of the
16
proceedings required by state law, the question may be precluded from review.
For example, it is a general rule that it is too late to raise a federal question
17
by petition for rehearing to the state appellate court.
However, an exception
to this rule is where the decision of that court has unexpectedly given rise to
a federal question that the party seeking review has had no previous opportunity
18
to assert and could not fairly have anticipated.
All of the rules concerning whether a substantial federal question has been
properly presented to the state court becomes moot when the highest court of the
state in which decision could be had actually decides the federal question.
Once
the highest court of a state passes on a federal question, there can be no question
19
as to the proper presentation of the claim.
B.
The Adequate State Ground Limitation
The most difficult limitation on Supreme Court review of state court decisions
is the "adequate and independent state ground" doctrine.
The rationale for the
limitation is based on a general aversion by the Court to give advisory opinions.
20
The rationale was well stated by Justice Jackson in Herb v. Pitcairn:
This court from the time of its foundation has adhered to the
principle that it will not review judgments of state courts
that rest on adequate and independent state grounds.* * *The
reason
is so obvious that it has rarely been thought to warrant
statement.
It is found in the partitioning of power between the
state and federal judicial systems and in the limitations of our
own jurisdiction.
Our only power over state judgments is to cor- -
rect them to the extent that they incorrectly adjudge federal
rights.
And our power is to correct wrong judgments, not
to revise opinions.
We are not permitted to render an ad-
visory opinion, and if the same judgment would be rendered
by the state court after we corrected its views of federal
laws, our review could amount to nothing more than an
21
advisory opinion.
Even though there is a federal question present, if there is also an independent state ground on which the judgment can rest, the Court does not have
jurisdiction to decide either the federal question or the state question.
This
limitation was imposed on the Court by a proviso to section 25 of the Judiciary
22
Act of 1789.
This proviso was eliminated by amendment in 1867.
Its elimination
raised the question whether the amendment meant that the state questions were
open to review if there was a federal question in the case sufficient to take
the case to the Supreme Court.
That question was answered in the negative in
23
Murdock
1875 by the Supreme Court in the landmark case of Murdock v. Memphis.
established that the presence in a case of a federal question adequate to permit
the exercise of jurisdiction did not confer upon the Court a general power to
decide all of the questions presented; that the Court will not review a case,
even though it contains a federal question, if there is an adequate state ground
that supports the decision of the state court; and that the Court will accept
as binding upon it the state court's decision of questions of state law.
Historically then, there can be no review of a state court decision if the
decision was based exclusively on some ground of state law and a federal question
24
present in the case was never reached.
There can be no review where the state
court has decided both the federal and state question if the decision . of the federal question was not necessary in the light of its disposition of the state
25
And where the state court's decision is based entirely on a federal
question.
question, the Supreme Court does have jurisdiction to review.
In such a situation,
jurisdiction is not defeated by a suggestion that an independent state ground
26
was available.
In the past, the.Supreme Court has been
c~ncerned
only with the problem of
defining what questions, other than those which confer jurisdiction, are open
27
to review.
Prior to the decision in Henry v. Mississippi
the inadequate state ground fell into two basic categories:
the cases involving
(1) the state ground
which contravenes federal law; and (2) the independent state ground that would
28
not be subject to review in the absence of a separate federal question.
In the first category, the attack is directed against the state rule itself
on the ground of inconsistency with paramount federal law, and it is immaterial
whether there are other federal issues in the case.
The question as to the
29
validity of the state rule is determined by federal law.
In the second category of cases, the Court has used the following analysis.
The Court first determines whether the judgment appealed from was in fact based
exclusively or alternatively on a state ground.
If the Court determines that
the decision was based alternatively on a state ground, the Court must then
30
determine whether that ground was "adequate."
31
In order for the state ground to be adequate, it must be "independent"
32
and "broad enough to sustain the judgment."
If the reasoning behind the appli-
cation of the state ground appears to have been controlled by federal law, the
state ground is not independent of federal law. For example, in State Tax
33
Comm'n v. Van Cott,
Mr. Justice Black reasoned:
If the (state) court were only incidentally referring to
decisions of this Court in determining the meaning of state
law • • • this Court would have no jurisdiction to review
that question.
But if the state court did in fact intend
(5)
alternatively to base its decision upon the state statute
and upon an immunity it thought granted by the Constitution
as interpreted by this Court, these two grounds are so
interwoven that we are unable to conclude that the judgment
34
rests upon an independent interpretation of the state law.
Prior to 1887, the Court was not prepared to examine a state ground to
determine whether the ground was "tenable," it only decided whether there was
an independent ground upon which the decision was based. However, in Chapman
35
v. Goodnow's Adm'r,
the Court implied that an additional test would be used
to determine "whether it was the real ground of decision, and not used to give
36
color only to a refusal to allow"
the federal claim. Mr. Chief Justice Waite
noted that a "right or immunity set up or claimed under the Constitution or laws
of the United States may be denied as well by evading a direct decision thereon
37
as by positive action."
38
Although the additional test of "tenability" was dicta in Chapman,
sub39
The criterion of the test and
sequent cases applied the test of tenability.
its rationale was declared in 1904:
(W)e cannot decline jurisdiction of a case which certainly
never would have been brought but for the passage of flagrantly
unconstitutional laws, because the state court put forward the
untenable construction
* * * To
Hold otherwise would open an
40
easy method of avoiding the jurisdiction of. this court.
Although the court has been vague as to what tests determine the rule's
applicability, it seems clear that at least where there is evidence of an
intent to evade the claim of a federal right, i.e., where the independent state
ground "properly may be regarded as essentially arbitrary or a mere device to
41
The Court had
preve',lt a review of the decision upon the federal question,"
(6)
consistently assumed jurisdiction and applied the rule of tenability.
Within the second category, the Court's decisions can be divided into those
involving state substantive grounds, and those involving state procedural grounds.
1.
The State Substantive Ground.
Most illustrative of these decisions are
42
the cases dealing with impairment of contractual obligations.
Where a state
court rests its decision on a determination of the meaning and effect of a
contract, the ground will not preclude review by the Supreme Court if there is
asserted an infringement of a constitutional right under the Contract Clause of
the United States Constitution.
Though the Supreme Court has recognized that
the meaning and effect of a contract is a question best decided by local law,
it will nevertheless test the state court's decision to see whether it rests upon
43
a "fair or substantial basis." In Memphis Natural Gas Co. v. Beller,
the
Supreme Court stated that the fair or substantial test would be applied in a
narrow manner.
"We examine the contract only to make certain that the nonfederal
ground of decision is not so colorable or unsubstantial as to be in effect an
44
evasion of the constitutional issue."
This same test is applied in the property cases where a federal right is
45
asserted under the due process clause.
Where there is an allegation of im-
pairment of rights in violation of the contract or due process clauses, the
critical issue is whether the asserted right has the scope claimed by the one
charging impairment.
Since federal review of this issue is essential to effect-
uation of the federal right, and there has never been serious doubt concerning
the justification of the review, there may be a semantical problem in including
these cases in a discussion of the adequacy of state ground to preclude Supreme
Court Review.
The question involved in the property and contract cases may be
a federal question in the first instance which the Supreme Court allows the
46
state courts to decide, but always subject to Supreme Court review.
The semantical problem aside, the Court's distinction between state substantive and procedural grounds may be a distinction without a difference for
another reason.
The "avoidance-of-an-advisory-opinion" rationale laid out in
Herb v. Pitcairn was recognized in Mr. Justice Brennan's opinion for the Court
47
in Fay v. Noia
to apply equally to state substantive and procedural grounds.
The question before the Court is the same whether the state ground is substantive or procedural, i.e., whether it ought to preclude the Court's consideration of the federal claim.
2.
The State Procedural Ground.
As previously stated, the Supreme Court
has· jurisdiction to pass on questions of federal law only i f they are dispositive
of the case.
If a state procedural rule precludes the federal question in the
state court, and the procedural rule is fair and has a sufficient basis in state
law, a decision on the merits of a
position of the case.
fede~al
question will not affect the dis-
Historically, the Court has declared that the states
control the procedure of their courts, and that "state law and practice in this
regard are no
less applicable when federal rights are in controversy than when
48
the case turns entirely upon questions of local or general law."
In the cases prior to Henry, involving a state procedural rule, the Court
saw the reviewability of the state ground as turning not upon the question
whether the particular ground itself contravenes federal law, but on whether
it stands in the way of an independent federal ·claim.
If it did, the Supreme
Court would make an inquiry to determine whether the state procedural rule had
been applied inconsistently or discriminatorily to obstruct presentation of a
federal right.
If either, the state procedural rule was declared inadequate to
49
preclude review.
The only other situation where the Court was willing to
50
declare the state ground inadequate
was where in the particular case, the
51
st·ate interest in enforcing the rule was minimal.
(8)
C.
Recapitulation
The jurisdiction of the Supreme Court to review state court decisions is
not that of a general reviewing court on appeal, but is limited to the specific
52
instances of denials of federal rights.
Whether invoked by appeal or certiorari,
this power to review state court decisions is limited to real and substantial
federal questions.
volved.
The Jurisdiction is therefore dependent on the questions in-
The Supreme Court has since its beginning adhered to the principle that
it will not review the judgments of state courts which rest on grounds independent
of federal law and adequate to support the state decision.
Moreover, the Court
will decline to review state court judgments which rest on independent and
adequate state substantive or procedural grounds, even where those judgments also
decide federal questions.
The Adequate State Ground Doctrine, ' a self-imposed limitation, arises in
three situations:
(1) in those cases where a federal question is answered by
the state court in favor of the petitioner, but he loses his case on state
grounds; (2) in those cases where both the federal question and the state
question ara answered against the petitioner; and (3) in those cases where the
state court refused to answer the federal question because of a noncompliance
with a state procedural rule.
It is the third situation to which the remainder of this paper is primarily
directed.
Although the Supreme Court has used varied language in formulating
the test for determining whether noncompliance with a state rule constitutes
an adequate state ground to preclude Supreme Court review, up until the decision
in Henry, the Court has been fundamentally consistent.
The test has been
whether the state rule had been applied "fairly and consistently," regardless
of whether the substantive issues were based on federal or state law.
Generally, when a litigant is not allowed to raise a constitutionally pro-
(9)
tected federal right because of a noncompliance with a state rule, he may either
appeal the state court judgment to the Supreme Court of the United States, or
he may, by writ of habeas corpus, seek review in a federal district court.
both methods, the petitioner alleges basically the same thing, that is ,
he has been denied some constitutionally protected right.
In
that
Although the remedy
by habeas is available in situations that the remedy by direct appeal is not,
and vice versa, there are also situations where both methods are available.
And
although there are limitations placed on both methods, the limitations are not
the same.
Because of the obvious interrelationship of the two, one cannot fully
understand the problems associated with direct appeal without understanding
the problems associated with the federal habeas. corpus.
Even though Henry v. Mississippi, decided in 1965, presented an extremely
narrow holding - a determination only that a waiver issue was present and
warranted further consideration by the state court - an extended discussion
of adequacy by Justice Brennan has had radical implications for the scope of
Supreme Court review.
The Court apparently departed from the relatively narrow
inquiry involved in the application of the "fairly and consistently" test.
Henry v. Mississippi
A.
The State Court Proceedings
Henry, a Black resident of Clarksdale, Mississippi, and president of both
the Coahoma County Branch of the National Association for the Advancement of
Colored People was tried and convicted in 1962 on a charge of disturbing the
peace by making indecent proposals to and an assault upon a hitchhiker to whom
he allegedly had given a ride.
testimony of the alleged victim.
The primary evidence against Henry was the
To corroborate this testimony, the prosecutor
·introduced testimony of the police officer who had searched Henry's car shortly
•
53
His testimony tended to substantiate the victim's accuracy
after his arrest.
(10)
concerning details of the interior of Henry's car that could have been observed
54
only by one who had been inside the car.
Although represented by three attorneys, no objection was raised when the evidence was introduced at trial.
At the close of the state's case, counsel for Henry entered a motion for
a directed verdict and urged that the testimony of the officer was the product
of an unlawful search.
The basis of his claim was that the search was not
authorized by a warrant or incident to an arrest, and was not justified by the
permission given by Henry's wife.
The motion was denied.
The motion was re-
newed at the completion of the defense, and was again denied.
55
The intermediate appellate court
affirmed the conviction and Henry
appealed to the Mississippi Supreme Court.
The Mississippi Supreme Court held
that the officer's testimony was improperly admitted as the fruit of "an unlawful
56
search and was in violation of § 23, Miss. Constitution 1890."
The court
reversed despite Henry's failure to comply with the customary requirement that
57
an objection to illegal evidence be made at the time it is introduced.
When
the court handed down its first opinion it was of the opinion that Henry had
been represented only by out-of-state counsel unfamiliar with local procedural
rules.
However, when the state filed a "Suggestion of Error" which pointed out
that Henry had been represented by two local attorneys presumed familiar with
local law, the court withdrew its first opinion and affirmed the conviction and
held that the failure to object when the illegal evidence was introduced resulted
58
in a "waiver" of the right to object.
"In such circumstances, even if honest
mistakes of counsel in respect to policy or strategy or otherwise occur, they
59
are binding upon the client as a part of the hazards of courtroom battle."
B.
The Supreme Court Decision
The Supreme Court heard the case on certiorari.
The federal claim of Henry
was tha"t he had been convicted in a state criminal proceeding on the basis of
60
evidence obtained through an unconstitutional search.
The Court divided
three ways with the majority concluding that the state court judgment should
be vacated and the case remanded to determine whether the failure of Henry's
counsel to object when the officer's testimony was introduced was an intentional
61
abandonment of the federal claim.
1.
The Majority Opinion
Mr. Justice Brennan, writing for the majority, cited three cases, Lovell v.
62
City of Griffin,
63
Liner v. Jafco, Inc.,
64
and Love v. Griffith,
and concluded
that they "settle the proposition that a litigant's procedural defaults in
state proceedings do not prevent vindication of his federal rights unless the
State's insistence on compliance with its procedural rule serves a legitimate
65
state interest."
The Court found that the Mississippi contemporaneous objection
rule did serve a legitimate state interest which was "avoiding delay and waste
66
in the disposition of the case."
However, the Court went on to say that the
purpose of the contemporaneous-objection rule may have been substantially served
by petitioner's motion at the close of the state's evidence asking for a directed
verdict.
And if the purpose of the rule was substantially served by the motion,
and enforcement of the contemporaneous-objection would serve no substantial
interest, "then settled principles would preclude treating the state ground as
adequate; giving effect to the rule for its own sake 'would be to force resort
67
to an arid ritual of meaningless form . '"
A decision on whether the purpose of the rule had been served was not reached
as the court viewed it unnecessary because the record before the Court suggested
the possibility that the failure to object may have been . attributable to a
68
The question whether there had been a
conscious waiver of the objection.
conscious waiver was left for the state court on remand to decide.
Brennan
reasoned that a remand for a hearing on that question would be particularly
(12)
appropriate since, even if the writ for certiorari were dismissed on the basis
of an adequate state
ground, the doctrine of Fay v. Noia would permit Henry
to assert his federal claim in a federal habeas corpus proceeding unless it
69
could be shown that he had "deliberately bypassed" state procedure.
2.
Black's Dissenting Opinion
Mr. Justice Black dissented because in his view the state procedural rule
70
was inadequate to preclude Supreme Court review. Citing Williams v. Georgia
he said:
This court held that where a state allows constitutional
questions 'to be raised at a late stage and be determined
by its courts as a matter of discretion, we are not concluded from assuming jurisdiction and deciding whether the
state court action in the particular circumstance is, in
71
effect, an avoidance of the federal right.'
Black's dissenting opinion may be read to take the position that the very
existence of discretion in the state court requires a determination of in72
adequacy.
A more probable reading in the light of the circumstances is that
where a state court has discretion to consider errors not appropriately raised
at trial, a determination by the state court not to hear the' error is adequate
if it is consistent with the exercise of discretion in other cases. Black
73
pointed out in his opinion that in Brooks v. State
the Mississippi Supreme
Court reversed a conviction obtained through ' the use of unconstitutionally
seized evidence, even though, as in the present case, there had been no objection made at the time the evidence was presented.
3.
Harlan's Dissenting Opinion
Mr. Justice Harlan who was joined by Justice Clark and Stewart, dissented
also, but on different grounds.
He found Mississippi's interest in the integrity
(13)
of its procedure plainly adequate to bar review of the federal claim.
Although
he did not disagree with Mr. Justice Brennan's formulation of the test for determining the adequacy of state procedural grounds, he did consider the majority's
suggestion that the purpose of the contemporaneous objection might have been
74
substantially served by the motion for a directed verdict as "fanciful."
He
saw more in the majority's opinion than a simple failure to assess properly
the state's interest in its rule; he saw a "s~ere dilution, if not complete
abolition of the concept of 'adequacy' as pertaining to state procedural
75
grounds."
Harlan suggested that the real reason for the majority's disposition
was a desire to extend the doctrine of Fay v. Noia (to which he dissented) to
direct review, and thus warned:
Despite the Court's soft-spoken assertion that "settled
principles" will be applied in.the future, I do not think
the intimation will be missed by any discerning reader of
the Court's opinion that at least a substantial dilution
76
of the adequate state ground may be expected.
C.
The Significance of· the Decision
The majority opinion in Henry is notable not only because of its novel
articulation of the adequate state ground doctrine, but also because of the
novel character of the remand for consideration of waiver.
1.
Remand for the consideration of Waiver
The majority intimated that a state ground that serves a legitimate state
policy in the abstract may nevertheless be inadequate if a specific application
is unwarranted.
The Court did not hold the Mississippi Contemporaneous-objection
rule to be an inadequate ground, but still remanded the case.
Evidently, the
Court did not believe the remedial remand is dependent on a finding of in-
n
adequacy.
At least the decision can be read to indicate that the Court
(14)
contemplates a remand when the state procedural ground is found inadequate, or
is likely to be found inadequate if the question is pressed to a conclusion.
2.
The Legitimate State Interest
Although the majority cited three cases which it said "settled the proposition" that the validity of a state's insistence upon compliance of a state
rule is dependent upon the existence of a "legitimate state interest," the
78
dissenters, as well as commentators are not convinced.
Whether the cases
support the proposition or not, the cases do not articulate the governing law
in terms of "legitimate state interest."
To answer the question of what a
legitimate state interest is, we must look to other cases.
The language may have been drawn from Brennan's decision in Fay v. Noia
which was decided two years before Henry.
In Fay, the Court interpreted the
Federal Habeas Corpus statute as giving.a state prisoner the right, absent
waiver, to be heard on the merits of his federal claim in a federal court
notwithstanding procedural defaults that precluded consideration of the claim
in the state courts.
Brennan recognized that the application of the rule
79
might "frustrate substantial interests of a state,"
but reasoned that the
state policy was "manifestly insufficient" in the face of the federal policy
of permitting the vindication of federal rights despite procedural defaults
80
under valid state law.
Some of the cases decided after Henry shed a little light on what the
majority will consider in determining whether a particular state rule serves
81
a legitimate state interest.
In Douglas v. Alabama,
decided right after
Henry, the state appellate court had affirmed the trial court's decision that
the petitioner had waived his right to object to certain evidence because he
had stopped objecting to the prosecutor's reading of a co-defendant's confession.
The counsel for the petitioner had made repeated objections at first,
(15)
and then waited to the end of the confession and objected once again.
Brennan,
again writing for the majority said that the Alabama rule that required repeated objections did not serve a legitimate state interest.
Elaborating, he
explained that "an objection which is ample and timely to bring the alleged
federal error to the attention of the trial court and enable it to take appro82
priate corrective action is sufficient to serve legitimate state interests.
The decision may be read to mean that even though a procedural rule serves a
legitimate state interest, if noncompliance of the rule is inadvertent, and
if in the opinion of the Supreme Court, the procedural steps taken by the
claimant are sufficient by federal standards, the default cannot bar the federal
claim.
If this is what the Court meant, then it truely is a departure from the
83
"settled principles" exemplified by the decision in Wolfe v. North Carolina.
In Wolfe, a state appellate court's refusal to consider certain evidence inadvertently omitted from a party's case on appeal was held to have been based
on adequate state grounds precluding Supreme Court review of the federal question involved.
The Court made an independent determination that the state
court had followed well-established local procedural rules, and even though
application of the rule was discretionary, the state court had consistently
and repeatedly held that it would not make independent inquiry to determine
the accuracy of the record before it.
The Court in Wolfe did not consider
whether the claimant had taken steps tha t would be sufficient by federal standards.
The rationale of Douglas seemed to be adopted by the majority in Parrot v.
84
Tallahassee when the Court held that a certification-of-,r ecords rule was
not an adequate state ground to preclude review wh e re the petitioners had tried
to correct the defect when notified of ' it, and where under state law, the
defect was not jurisdictional.
The "jurisdictional-discretionary" dichotomy
seems to be a departure from the prior test which had been whether the state
(16)
court had consistently applied the rule. Ammunition for this proposition is
85
found in Sullivan v. Little Hunting Park
which was decided in 1969.
In
Sullivan, the petitioner had failed to comply with a court rule that "required
reasonable written notice" to be given to opposing counsel of the time and
,
place of tendering the transcript, and "reasonable opportunity to examine the
transcript" before inclusion in the record for appeal.
In the appellate
court's opinion, the petitioner did not comply with the rule.
The Supreme
Court, per Douglas, held that the state court rule requiring reasonable notice
of the time and place of tendering the trial transcript is "more properly
86
deemed discretionary than jurisdictional"
and does not bar review in the
Supreme Court.
Although Douglas did not elaborate on his rationale, Justice
Harlan (who dissented) suggested that the majority meant that any decision made
pur.s uant to a broad standard cannot provide an adequate state ground.
It is
very interesting to note that the majority opinion cited for its authority a
portion of Black's dissenting opinion in Henry.
The portion cited basically
stood for the proposition that a procedural rule that is discretionary is
87
inadequate.
It is important at this time to take a look at the development of the
federal habeas corpus to fully understand the Court's language concerning the
adequate state ground and its effect as a waiver of constitutionally protected
rights.
Federal Habeas Corpus
Relief under federal habeas corpus is a matter of statutory provision.
The Constitution does not specifically require .every federal question raised
by a state prisoner to be heard at some stage of litigation in a federal court.
In 1867, the Habeas Corpus Act was adopted and has been virtually unmodified
87a
In the beginning, federal habeas corpus was limited to post-conviction
since.
(17)
process, questioning only the jurisdiction of the Court that convicted the
88
state prisoner. In 1830, the Supreme Court in Ex parte Watkins
interpreted
the scope of the writ to be very narrow; Le., "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
89
be erroneous."
The scope of federal habeas corpus has been the subject of a continuous
debate between Justice Harlan and Justice Brennan.
Harlan takes the position
that the writ since its beginning has been limited to an inquiry as to whether
there were jurisdictional defects in the state court proceedings.
Mr. Justice
Brennan on the other hand, maintains the habeas writ has always been available
for the determination of serious Constitutional claims, and dismisses the
language found in cases like Watkins as-situations where the Court regarded
the substantive claims of the defendants as frivolous and copped-out by resting
their judgment on lack of jurisdiction.
In 1915, the Supreme Court spoke again of the scope of the federal writ in
90
Frank v. Mangum.
In Frank the state prisoner's federal claim was considered
by the state court and rejected.
The Supreme Court held that since his claim
was considered by the state court, he was afforded due process, and he could
not renew the same claim in federal habeas corpus proceedings.
The cases that
followed Frank took the position that his claim (that his trial had been mobdominated and therefore no trial within the meaning of due process) related
to the jurisdiction of the convicting court, ' and being based on the federal
91
constitution, warranted consideration by the federal courts.
The Court's
decisions were consistent with Harlan's philosophy until 1953.
92
In Brown v. Allen
Brennan's philosophy was accepted by the majority of
the Court.
In Brown the Court held that it was mandatory for the lower federal
(18)
courts, on habeas corpus, to pass on the
meri~s
of the federal claims which
the state courts had already considered and rejected - not only questions
relating to the jurisdiction of the state courts, but any and all questions
of federal law.
In short, Brown extended the scope of federal habeas corpus
to be equal to the scope of direct review.
The genesis of the proposition that the adequate-state-ground doctrine
should be incorporated in the law of federal habeas corpus was in the dissent93
ing opinion of four justices in Irvin v. Dowd,
and a strong endorsement by
94
95
Professor Hart.
And then, in Daniels v. Allen,
the Court actually placed
the adequate-state-ground limitation on the federal writ.
In Daniels, the
petitioner was late in filing his appeal, and the state's highest court refused to hear the appeal.
The federal habeas corpus court refused his writ
on the grounds that he had not exhausted his state remedies.
On appeal the
Supreme Court held that if a judgment of a state court rests on a "tenable" nonfederal ground, it cannot be questioned by habeas corpus in a federal court.
This remained the rule until recently; in Fay v. Noia, the Supreme Court
held that the adequate-state-ground limitation on direct appeal did not apply
to federal habeas corpus.
The majority said that a mere showing of noncompliance
with a state court procedural rule would not bar federal habeas corpus proceeding.
In fact, nothing less than a "deliberate bypass of the orderly pro96
cedures of the state courts"
must be shown to bar· review, and even then it
is discretionary with the court.
It was recognized in Fay that noncompliance
with a state-court, procedural rule was doctrinally treated as a forfeiture of
the litigant's constitutional rights, and that the adequate-state-ground rule
should be understood as a limitation peculiar to the appellate jurisdiction
of the Supreme Court.
Cases since Fay establish that not only must an "intentional bypass" be
(19)
shown in order to amount to a waiver of a federal claim, but moreover, the
intention must be that of the defendant as opposed to that of the attorney.
97
where the Court held that
Such a rule was intimated in Brookhart v. Janis,
a defendant's constitutional right to confront the witnesses against him could
not be waived by his attorney's agreement to accept proof of a prima facie
case.
In March of this year, the Court again applied such a rule in Humphrey v.
98
Cady.
In Humphrey, the federal district habeas court had held that a failure
of petitioner's trial counsel to file a brief in the state court amounted to
a deliberate strategic decision to abandon his constitutional claims.
The
Supreme Court made its position abundantly clear that a deliberate bypass of
appropriate state remedies is not to be presumed from the failure or default
of counsel, that there must be a showing that the failure to exhaust the
remedies was the result of knowing and understanding decision of the petitioner.
Mr. Justice Marshall, writing for the majority said, "such a waiver must be
the product of an understanding and knowing decision by the petitioner himself,
99
who is not necessarily bound by the decision or default of his counsel."
The Court remanded the case to the federal district court with the following
command:
"If the District Court cannot find persuasive evidence of a knowing
and intelligent waiver on the part of the petitioner himself, then the Court
100
should proceed to consider petitioner's constitutional claims."
It is fair to conclude that at least in effect, a federal standard of pro-
cedure is imposed on the state courts when a federal claim is presented in the
state court.
This standard is enforced at least through the subsequent remedy
available to the defendant in the federal habeas corpus proceeding.
Whether
such a result is the intention of the Supreme Court is a matter of intellectual
debate.
However, evidence of such an intention may be drawn from the con-
Wl
curring opinion of Mr. Justice Brennan in Case v. Nebraska.
(20)
The issue before
the Court on certiorari was whether there was an affirmative obligation on the
state of Nebraska to provide for a post-conviction process consistent with
federal standards.
Before the case was argued to the Supreme Court, the
Nebraska legislature enacted a new
post-convic~ion
remedy statute.
withheld decision on the issue on the grounds of mootness.
The Court
However, in his
concurring opinion, Brennan applauded the statute as a step in the direction
of harmonious federal-state relations and stated, "The Fourteenth Amendment
and the Supremacy Clause make requirements of fair and just procedures an
integral part of those laws, and state procedures should ideally include
102
adequate administration of these guarantees as well."
It is not disputed that the state courts have a constitutional duty to
103
adjudicate federal questions when Congress commands.
Nor is it disputed
that in the enforcement of federal statutory rights, the states can be compelled
104
to subordinate their own procedures to the procedures of the Federal Courts.
A logical progression from these principles is a requirement that the state
courts adjudicate constitutional questions arising in state criminal proceedings,
and that they do so in compliance with procedural ground rules set by the
Supreme Court.
Authority for such a proposition is derived from the development
of the confession cases decided by the Supreme Court.
The prohibition of the
use of coerced confessions in state courts was based on the Fourteenth Amendment
105
106
And in Jackson v. Denno
the Supreme Court held
in Brown v. Mississippi.
that the Fourteenth Amendment requried a prior and full determination of
voluntariness of a confession before it could be introduced at trial.
The
Court was in fact determining what procedure was necessary in the state courts.
It has been suggested, and it is the conclusion of this writer, that the
fundamental reasons which impell the federal courts to hear constitutional
claims despite the state defendant's failure to comply with state procedural
(21)
rules are derived from the Due Process Clause of the Fourteenth Amendment.
If
this conclusion is true, then the question of the "legitimate state interest"
of a state procedural rule will be decided by a federal standard similar to
that used in the federal habeas corpus proceedings.
The "forfeiture" standard
in the adequate-state-ground doctrine is then the same as the "waiver" standard
in the habeas corpus proceedings, and Harlan's fear of an extention of the Fay
doctrine to direct appeal is real.
(22)
1.
W. Berger, Congress v. Supreme Court 225 (1969); Merry, Scope of the
Supreme Court's Appellate Jurisdiction:
Historical Basis, 47 Minn. L.Rev. ,53
(1962).
Wright, Law of Federal Courts 481, § 107 (2d ed. 1970).
2.
~
3.
Act of Sept. 24, 1789,
4.
For examples of the early assertions see Merry, supra, note 1 at n. 10.
5.
Act of Dec. 23, 1914, c. 2, 38 Stat. 790.
6.
28 U.S.C.A.
7.
The Supreme Court will not hear a case, even though a question of federal
§
§
25, 1 Stat. 73, 85.
1257 (3) •
law has been raised, i f i t appears that the question is who"lly formal, or is
so absolutely devoid of merit as to be frivolous, or has been explicitly forclosed by a prior decision so as to leave no real controversy.
See Equitable
Life Assurance Society v. Broun, 187 U.S. 308 (1902); Note, 62 Harv. L.Rev. 488.
8.
Angel v. Bullington, 330 U.S. 183.
9.
This does not mean that review is restricted to decisions of the state's
highest court.
The test is whether there is a higher state court to which the
party can resort.
The general rule is that even if discretionary review is
available in some higher state court, such review must be sought.
~
Banks v.
California, 395 U.S. 708 (1969); Gotthilf v. Sills, 375 U.S. 79 (1963);
Stratton v. Stratton, 239 U.S. 55 (1915).
10.
~
Boskey, Finality of State Court Judgments Under the Federal Judicial
Code, 43 Col.L.Rev. 1002.
11 • .~ Crick, The Final Judgment as a Basis for Appeal, 41 Yale L.J. 539
(1932) •
12.
Gospel Army v. City of Los Angeles, 331 U.S. (1947); Local No. 438
Construction & General Laborers' Union, AFL-CIO v. Curry, 371 U.S. 542 (1963).
13.
(1966).
See Frank, Requiem for ' the Final Judgment Rule, 45 Tex. L. Rev. 292
14.
Board of Com'rs of Tippecanoe County v. Lucas, 93
u.s.
108 (1876);
Department of Banking, State of Nebraska v. Pink, 317 U.S. 264 (1942); Cole v.
Violette, 319 U.S. 581 (1943).
15.
New York ex reI. Bryant v. Zimmerman, 278 U.S. 63 (1928); Street v.
New York, 394 U.S. 576 (1969).
16.
Edelman v. California, 344 U.S. 357 (1953).
Even where the question
had been properly raised in the trial court, the appellant has been deemed to
have waived the question by failing to preserve it on appeal.
Beck v. Washington,
369 U.S. 541 (1962).
17.
Herndon v. Georgia, 295 U.S. 441 (1935).
18.
Parker v. Illinois, 333 U.S. 571 (1948); Central Union Tel. Co. v.
City of Edwardsville, 269 U.S. 190 (1925).
19.
Raley v. Ohio, 360 U.S. 423, 416 (1959); See also, Boykin v. Alabama,
395 U.S. 238 (1969).
20.
324 U.S. 117 (1945).
21.
~.
22.
The proviso said:
at 125-26.
"But no' other error shall be assigned or regarded
as a ground of reversal in any such ,case as aforesaid, than such as appears on
the face of the record, and immediately respects the before mentioned questions
of validity or construction of the said Constitution, treaties, statutes, commissions, or authorities in dispute." Act of Feb. 5, 1867,
23.
87 U.S. (20 Wall.) 590 (1875).
decided in earlier cases.
§
2, 14 Stat. 385, 386.
The question was recognized but not
Trebilcock v. Wilson, 79 U.S. (12 Wall.) 687, 694
(1872); Stewart v. Kahn, 78 U.S. (11 Wall.) 493, 502-03 (1871).
24.
McCoy v. Shaw, 277 U.S. 302 (1928); Johnson v. New Jersey, 384 U.S.
719 (1966).
25.
Fox Film Corp. v. Muller, 296 U.S. 207 (1935).
26.
Indiana ex reI. Anderson v. Brand, 303 U.S. 95 (1938).
(2) "
27.
379 U.S. 443 (1965).
28.
See, Hill, The Inadequate State Ground, 65 Col. L.Rev. 943 (1965).
29.
The attack on the state ground does not depend on the existence of an
independent federal question in the case.
The state rule may be attacked as
impairing first amendment rights; Speiser v. Randall, 357 U.S. 513 (1958); or
as tending to promote an involuntary servitude in violation of the thirteenth
amendment, Bailey v. Alabama, 219 U.S. 219 (1911); or as sanctioning resolution
of a civil, Western & Atl. R.R. v. Henderson, 279 U. S. 639 (1929); or criminal
proceeding, Manley v. Georgia, 279 U.S. 1 (1929) on the basis of the due process
clause of the Fourteenth Amendment.
This collection of cases was taken substantially
from Hill, The Inadequate State Ground, 65 Col . L.Rev. 943, 945 • .
30.
~
31.
~,Moran
32.
~,Enterprise
Note, 74 Harv. L.Rev. 1375, 1380 (1961).
v. Horsky, 178 U.S. 205, 207-08 (1900).
Irrigation Dist. v. Farmers Mut. Canal Co., 243 U.S.
157, 164 (1917). Despite frequent statements that insufficient breadth alone
requires reversal, no case prior to Henry had held a state ground inadequate
for this reason.
On the other hand,. the Supreme Court has vacated judgments
where they did not rest clearly on independent state grounds.
independence has not always
b~en
The criterion of
differentiated from that of breadth, but in
some cases where breadth is used, it is in reference to the reasoning that
underlies the state ground.
33.
306 U.S. 511 (1939).
34.
Id. at 514 (footnotes omitted).
35.
123 U.S. 540 (1887).
36.
Id. at 546-47.
37.
1£.
38.
In an earlier case than Chapman, the Court declared that if it affirma-
at 548.
tively appeared in the record that the state court had decided on a nonfederal
(3)
ground, the Court "would not inquire into the correctness of that decision,"
even if it were regarded as untenable.
Neilson v. Lagow, 53 u.s. (12 How.)
98, 110 (1851).
39.
~,~,
Rogers v. Alabama, 192 u.s. 226 (1904); Dibble v. Bellingham
Bay Land Co., 163 U.S. 63, 74 (1896); Carter v. Texas, 177 U.S. 442 (1900).
40.
Terre Hante & I.R.R. v. Indiana ex reI Ketcham, -194 u.s. 579, 589 (1904).
41.
Leathe v. Thomas, 207 u.s. 93, 99 (1903).
This quote from Leathe is
not to be interpreted to mean that before a state ground can be declared untenable there must be an intentional evasion of the federal question.
State
grounds have been found untenable under circumstances that did not suggest intentional evasion.
~,Shuttlesworth
v. Birmingham, 376 U.S. 339 (1964).
For
a persuasive objection to the treatment of a finding of intent to deprive a
litigant of his federal rights as one of the tests for adequacy see Williams v.
Georgia, 349 u.S. 375, 399 (Clark's dissenting opinion) (1955).
42.
~
Hill, The Inadequate State Ground, supra, note 29.
43.
315 U.S. 649 (1942).
44.
l£.
45.
Demorest v. City Bank Farmers Trust Co., 321 U.S. 36 (1944).
46.
For a full discussion of the sematical problem see Hill, The Inadequate
at 654.
State Ground, supra, note 29, at n.93.
47.
372 U.S. 391 (1963).
48.
John v. Paullin, 231 U.S. 583, 585 (1913).
49.
~
Wright v. Georgia, 373 U.S. 284 (1963); NAACP v. Alabama ex reI.
Patterson, 357 U.S. 449 (1958); Williams v. Georgia, 349 -U.S. 375 (1955);
Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673 (1930); Carter v. Texas,
177 U.S. 442 (1900).; Comment, 61 Colum. L.Rev. 255, 264-70 (1961); Note, 74 Harv.
L. Rev; 1375, 1385-91 (1961); cf. Wolfe v. North Carolina, 364 U.S. 177 (1960).
50 -.
At least one commentator is of the opinion that the "pre-Henry" court
(4)
had designated another category of situations where the state procedural ground
would be inadequate.
Language employed by the Court in Davis v . Wechsler, 263
u.s. 22 (1923), and Brown v. Western Ry., 338 U.S. 294 (1949) suggests that a
state procedural rule may be found unduly burdensome as applied to claims under
federal law, although not so burdensome as to be violated of due process.
Comment, 61 Colum. L.Rev. 255, 257 (1961).
that the proposition is not supportable.
However, this writer is convinced
~
Hill, The Inadequate State Ground,
supra, note 29 at 971.
51.
Staub v. City of Baxley, 355 u.S. 313 (1958); Wright v. Georgia, supra,
note 49; Davis v. Wechsler, 263 U.S. 22 (1923);
£to
Love v. Griffith, 266 U.S.
32, 33-34 (1924).
52.
Waters-Pierce Oil Co. v. Texas, 212 U.S. 86 (1908).
includes questions arising under the 14th amendment.
This proposition
Questions under the Four-
teenth Amendment may be deemed to have been involved and decided in the state
court where, even though the plaintiff's petition did not mention the Fourteenth,
it used the exact phraseology in which the Amendment is couched, or where the
expressions found in the state court opinion show that questions under the
Federal Constitution were considered.
Copperweld Steel Co. v. Industrial Com.,
324 U.S. 780 (1944).
53.
The police officer testified that after Henry's arrest he had returned
to Henry's home and obtained the permission of Henry's wife to look in his car.
The Wife provided the officer with the keys to the car.
He testified that he
tried the lighter and it would not work, and also that the astray "was filled
with red dentyne chewing gum wrappers."
54.
Both the complaining witness and the officer testified that the cigarette
lighter did not work and that the ashtray was filled with dentyne chewing gum
wrappers.
55.
The Circuit Court of Bolivia County was the intermediate appellate court.
(5)
56.
154 So.2d 289 .; 294(Miss. 1963).
57.
Under state law, the Mississippi Supreme Court had discretion to excuse
such procedural defaults.
A second reason for the reversal was that the court
found the case came within the "narrow rule" established by an earlier decision,
that "errors affecting fundamental rights are exceptions to the rule that questions not raised in the trial court cannot be raised for the first time on appeal."
Brooks v. State, 209 Miss. 150, 155 (1950).
58.
The "narrow rule" exception was construed to be even narrower:
the
earlier decision establishing the rule was now construed to depend upon the
incompetence of counsel.
59.
154So.2d 289, 296 (Miss. 1963);
60.
The trial judge had charged the jury, "you cannot find the defendant
guilty on the unsupported and uncorroborated testimony of the complainant alone."
Therefore, if the testimony of the officer was stricken from the case, the only
evidence against Henry would have been the uncorroborated testimony of the
hitchhiker and under the charge of the court, Henry would have been entitled
to a directed verdict.
61.
When the Mississippi Supreme Court stated that Henry had "waived" his
right to object it actually mean that a fo·r feiture resulted from the failure
to comply with state procedure.
62.
303 U.S. 444 (1938).
63.
375 U.S. 301 (1964).
64.
266 U.S. 32 (1924).
65.
Henry v. Mississippi, 379 U.S. 443, 447 (1965). ,
66.
Id. at 449.
67.
Id. at 449, quoting Staub v. City of Baxley, 355 U.S. 313, 320 (1958).
68.
An affidavit filed by the state in the Supreme Court asserted that when
the officer's testimony was introduced one of Henry's attorneys stood up as if to
(6)
object and was pulled down by his co-counsel.
Also, the record suggested that
the failure to object might have been based on trial strategy because a mechanic
was called by the defense to give testimony that he had repaired the lighter in
an attempt to impeach the credibility of the state's witnesses.
69.
Fay, supra, note 47 at 439.
70.
Williams v. Georgia, supra, note 49.
71.
Id. at 388-89.
72.
Some support may be found for this proposition.
~
City of Birmingham, supra, note 41; Williams, supra, note 49.
Shuttlesworth v.
However, Williams
probably should be read more narrowly as requiring a determination of inconsistency with earlier cases.
73.
Brooks v. State, supra, note 57.
74.
Henry, supra note 65 at 458.
75.
Id. at 457.
76.
g.
77.
The Court explained that the remand was in the interest of "serving
at 464.
the causes of efficient administration of criminal justice, and of harmonious
federal-state judicial relations."
379 U. S. 443, 452 (1965). For an interesting
discussion of harmonious federal-state judicial relations
see Case v. Nebraska,
infra, · note 102.
78.
One commentator considered the general standard for determining the
adequacy of state procedural ground "a fair synthesis of prior decisions."
Recent Developments, 65 Colum. L.Rev. 710, 713 (1965).
However, another com-
mentator felt that "there is no suggestion in the earlier cases of the proposition
that the validity of a state's insistence upon compliance is dependent upon the
existence of a 'legitimate state interest.'" Hill, The Inadequate State Ground,
supra, note 29 at 988.
79.
Fay, supra, note 47 at 431.
80.
g.
81.
380 U.S. 415 (1965).
82.
Id. at 422.
83.
364 U.S. 177 (1960).
84.
381 U.S. 129 (1965) •
85.
396 U.S. 229 (1969) •
86.
Id. at 390-91.
87.
Henrl, supra, note 65 at 455-57.
at 433.
87a. 28 U.S.C.
§
2241 (1959).
In 1867 the statute was extended to all
persons held in custody in violation of the Constitution or law or treaty of
the United States.
88.
28 U.S. (3 Pet.) 193 (1830).
89.
Id. at 203.
90.
237 U.S. 309 (1915).
91.
~
House v. Mayo, 324 U.S. 42 (1945); Mooney v. Holohan, 294 U.S.
103 (1935); Moore v. Dempsey, 261 U.S. 86 (1923).
92.
344 U.S. 443 (1953).
93.
359 ·U.S. 394 (1959).
94.
Hart, Foreword, 73 Harv. L.Rev. 84 (1959).
95.
Reported sub nom. Brown v. Allen, 344 U.S. 443 (1953).
96.
Fal, supra, note 47.
97.
384 U.S. 1 (1966).
98.
Humphrey v. Cady, 40 U.S.L.W. 4324 (1972).
99.
Id. at 4328.
100.
Id. at 4328.
101.
381 U.S. 336 (1964).
102.
g. at 344.
103.
Testa v. Katt, 330 U.S. 386 (1947).
(8)
104.
Dice v. Akron, C. & Y. R.R., 342 U.S. 359 (1952).
105.
297 U.S. 278 (1936).
106.
378 U.S. 368 (1964).
107.
The concluding propositions were suggested but left unanswered in Kelman,
Federal Habeas Corpus as A Source of New Constitutional Requirements For State
Procedure, 28 Ohio S.L.J. 46 (1967).
(9)