200 Opinion of the Court. 31 the rulings drawn from the precedents. The rulings had been definitively restated in Hawk. That case had represented an effort by this Court to clear the way for prompt and orderly consideration of habeas corpus petitions from state prisoners. This Court had caused the Hawk opinion to be distributed to persons seeking federal habeas corpus relief from state restraint and the opinion had been generally cited and followed.32 There is no doubt that Congress thought that the desirable rule drawn from the existing precedents was stated by Hawk, for the statutory reviser's notes inform us that "This new section is declaratory of existing law as affirmed by the Supreme Court. (See Ex parte Hawk, 1944, 64 S. Ct. 448, 321 U. S. 114, 88 L. Ed. 572.)" 33 While this section does not refer expressly to the requirement for application to this Court for review, it must be read in the light of the statement quoted on p. 207, supra, from Hawk. So read, there was occasion nei available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." 31 Hearings before a Subcommittee of the Senate Judiciary Committee on H. R. 3214, April 22 to June 7, 1948, 80th Cong., 2d Sess., p. 28. See 28 U. S. C. Congressional Service, p. XXVIII; H. R. Rep. No. 308 on H. R. 3214, 80th Cong., 1st Sess., p. 3. 32 See Lyon v. Harkness, 151 F. 2d 731, 733 (C. A. 1st Cir., N. H.); United States ex rel. Monsky v. Warden of Clinton State Prison, 163 F.2d 978, 980 (C. A. 2d Cir., N. Y.); Stonebreaker v. Smyth, 163 F.2d 498, 501, 502 (C. A. 4th Cir., Va.); Nusser v. Aderhold, 164 F. 2d 127 (C. A. 5th Cir., Ga.); Makowski v. Benson, 158 F. 2d 158 (C. A. 6th Cir., Mich.); United States ex rel. Ross v. Nierstheimer, 159 F.2d 994 (C. A. 7th Cir., Ill.); Guy v. Utecht, 144 F. 2d 913, 915 (C. A. 8th Cir., Minn.); Gordon v. Scudder, 163 F. 2d 518 (C. A. 9th Cir., Cal.); Herzog v. Colpoys, 79 U. S. App. D. C. 81, 143 F. 2d 137, 138. 33 See S. Rep. No. 1559, 80th Cong., 2d Sess., p. 9 and H. R. Rep. No. 308, 80th Cong., 1st Sess., p. A180. Opinion of the Court. 339 U.S. ther for the draftsmen of § 2254 to make reference to review in this Court, nor for the committees of the House or Senate or members of Congress to comment upon it. It is immaterial whether as a matter of terminology it is said that review in this Court of a state judgment declining relief from state restraint is a part of the state judicial process which must be exhausted, or whether it is said to be a part of federal procedure. The issue cannot be settled by use of the proper words. Hawk treated review here as a state remedy. Wade thought it was not But undoubtedly review here is a part state procedure. of the process by which a person unconstitutionally restrained of his liberty may secure redress. Ex parte Hawk had made it clear that all appellate remedies available in the state court and in this Court must be considered as steps in the exhaustion of the state remedy in the sense that the term is used, perhaps inexactly, in the field of habeas corpus." Consideration of the legislative 34 34 Subsequent statements by Judge John J. Parker, who served as Chairman of the Judicial Conference of Senior Circuit Judges, Committee on Habeas Corpus, are instructive. "... The thing in mind in the drafting of this section was to provide that review of state court action be had so far as possible only by the Supreme Court of the United States, whose review of such action has historical basis, and that review not be had by the lower federal courts, whose exercise of such power is unseemly and likely to breed dangerous conflicts of jurisdiction. . . . "One of the incidents of the state remedy is [the] right to apply to the Supreme Court for certiorari. If a petitioner has failed to make such application after the refusal of the state court to release him, he cannot be said to have exhausted the remedies available to him under state procedure, provided he has the right to apply again to the state courts for relief as a basis for application to the Supreme Court for certiorari. . . . "The fact that certiorari from the Supreme Court to the state court may be called a federal remedy is not determinative of the question here involved. The crucial matter is that petitioner still has a right to attack in the courts of the state the validity of his 200 Opinion of the Court. history of § 2254 reveals no suggestion that the draftsmen intended to alter the sense of the term as defined in Hawk or to differentiate between exhaustion of state remedies and review in this Court. All the evidence manifests a purpose to enact Hawk into statute. The reviser's notes, explicitly stating this purpose, remained unchanged throughout the bill's legislative progress. So did the statement of the exhaustion principle contained in the first paragraph of § 2254 down to the first "or." None of the changes or additions made by the Senate to § 2254 affected the problem of review here. They were directed at other issues.37 1936 35 conviction and, upon the record made in such attack, to petition the highest court of the land for a review. So long as such right remains, he does not have, and ought not have, the right to ask a review by one of the lower federal courts. . . Parker, Limiting the Abuse of Habeas Corpus, 8 F. R. D. 171, 176-77. Wade v. Mayo, supra, had no effect on the discussion of § 2254, since it came down two days prior to the enactment of the new code, too late for consideration. 35 See H. R. Rep. No. 308, 80th Cong., 1st Sess., p. A180, and final reviser's note to § 2254. 36 See note 30, supra. Compare § 2254, H. R. 3214, Union Calendar #140, H. R. Rep. No. 308, 80th Cong., 1st Sess., with § 2254, H. R. 3214 in Senate, S. Rep. No. 1559, 80th Cong., 2d Sess., p. 9. 37 The two exceptions at the last of the first paragraph provide for particular situations in the states. The definition of exhaustion in the last paragraph was made by the Senate at the instance of the Judicial Conference of Senior Circuit Judges. S. Rep. No. 1559, 80th Cong., 2d Sess., p. 9. Report of the Judicial Conference, September Session 1947, p. 17. H. R. 3214 had permitted federal habeas corpus not only where state remedies had been exhausted but where "there is no adequate remedy available in" the state court. The Senate Report informs us that the purpose of the Senate amendment was "to substitute detailed and specific language for the phrase 'no adequate remedy available.' That phrase is not sufficiently specific and precise, and its meaning should, therefore, be spelled out in more detail in the section as is done by the amendment." S. Rep. No. 1559, 80th Cong., 2d Sess., p. 10. Opinion of the Court. 339 U.S. It seems sure that Congress drafted and enacted § 2254 expecting review here in conformity with the Hawk rule. Nothing indicates to us a desire on the part of Congress to modify the language. We think the rule of the Hawk case that ordinarily requires an effort to obtain review here has been accepted by Congress as a sound rule to guide consideration of habeas corpus in federal courts. There is an insistence voiced by the dissent that we determine what effect the lower federal courts should accord a denial of certiorari by this Court when the state prisoner later applies for federal habeas corpus. The issue of the effect of such a denial apparently could arise only in a case where, after our refusal, the state prisoner presented his application to another federal court. It is not here in this case. We doubt the effectiveness of a voluntary statement on a point not in issue.38 Whether a refusal to grant certiorari imports an opinion on any issue or not, the reason persists for requiring an application here from the state refusal before application to another federal court. There should be no controversy over whether the refusal of certiorari "would serve the purpose of an adjudication on the merits." All the authorities agree that res judicata does not apply to applications for habeas corpus. The courts must be kept open to guard against injustice 38 Compare Bowen, L. J., in Cooke v. New River Co., 38 Ch. D. 56, 70-71: “... like my Brothers who sit with me, I am extremely reluctant to decide anything except what is necessary for the special case, because I believe by long experience that judgments come with far more weight and gravity when they come upon points which the Judges are bound to decide, and I believe that obiter dicta, like the proverbial chickens of destiny, come home to roost sooner or later in a very uncomfortable way to the Judges who have uttered them, and are a great source of embarrassment in future cases." Cohens v. Virginia, 6 Wheat. 264, 399-400; Wright v. United States, 302 U. S. 583, 593–594. 200 40 Opinion of the Court. through judicial error.39 Even after this Court has declined to review a state judgment denying relief, other federal courts have power to act on a new application by the prisoner. On that application, the court may require a showing of the record and action on prior applications, and may decline to examine further into the merits because they have already been decided against the petitioner." Thus there is avoided abuse of the writ by repeated attempts to secure a hearing on frivolous grounds, and repeated adjudications of the same issues by courts of coordinate powers. In this way the record on certiorari in this Court is brought to the attention of the trial court. There have been statements made in former opinions of this Court as to the effect of denial of petitions for habeas corpus."2 Records presented to this Court on petitions in habeas corpus cases raise many different issues. There may be issues of state procedure, questions of fact regarding the alleged violations of constitutional rights, and issues of law respecting the scope of constitutional rights—problems made difficult by the frequent practice of state courts to dismiss the applications without opinion. If this Court has doubts concerning the basis of state court judgments, the matter may be handled as in Burke v. Georgia, 338 U. S. 941, with an express direction that the petitioner may proceed in the federal district court without prejudice from the denial of his petition for certiorari. If the District Court feels that error may have occurred, it has power to examine the application to see if circumstances exist to justify it in holding a hearing on the 39 Salinger v. Loisel, 265 U. S. 224, 230. 40 Ex parte Royall, 117 U. S. 241. 1 Salinger v. Loisel, note 39, supra. 42 Ex parte Hawk, 321 U. S. 114, 117; House v. Mayo, 324 U. S. 42, 48; White v. Ragen, 324 U. S. 760, 764-65. |