Tom C. Clark

“ The judgment, in other words, becomes a nullity.
Moreover, the future effect of such a disposition is precisely the same as a reversal on the merits of the question of state law. If noncompliance with a state rule requiring a particular constitutional claim to be raised before verdict does not preclude consideration of the claim by this Court, then the rule is invalid in every significant sense, since no judgment based on its application can ever be effective. ”

“ The point is that if the applicant is detained pursuant to a judgment, termination of the detention necessarily nullifies the judgment. The fact that a District Court on habeas has fewer choices than the Supreme Court, since it can only act on the body of the prisoner, does not alter the significance of the exercise of its power. In habeas as on direct review, ordering the prisoner's release invalidates the judgment of conviction and renders ineffective the state rule relied upon to sustain that judgment. ”

“ On direct review.-Assume that a man is indicted, and held for trial in a state court, by a grand jury from which members of his race have been systematically excluded. Assume further that the State requires any objection to the composition of the grand jury to be raised prior to the verdict, that no such objection is made, and that the defendant seeks to raise the point for the first time on appeal from his conviction. ”

“ Allen, habeas corpus would not lie for a prisoner who was in custody pursuant to a state judgment of conviction by a court of competent jurisdiction if he had been given an adequate opportunity to obtain full and fair consideration of his federal claim in the state courts. Clearly, under this approach, a detention was not in violation of federal law if the validity of the state conviction on which that detention was based rested on an adequate nonfederal ground. ”

“ Recognizing that Noia himself decided not to appeal, and that he apparently made this choice after consultation with counsel, the Court states that his decision was nevertheless not a 'waiver.' Since a new trial might have resulted in a death sentence, Noia was, in the majority's view, confronted with a 'grisly choice,' and he quite properly declined to play 'Russian roulette' by appealing his conviction. ”

“ During this period the federal courts, on applications for habeas corpus complaining of detention pursuant to a judgment of conviction and sentence, purported to examine only the jurisdiction of the sentencing tribunal. In the leading case of Ex parte Watkins, 3 Pet. 193, 7 L.Ed. 650, the Court stated:
'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.' 3 Pet., at 203. ”

“ It is clear that a State may not preclude Supreme Court review of federal claims by discriminating against or evading the assertion of a federal right, and indeed that state procedural grounds for refusal to consider a federal claim must rest on a 'fair or substantial basis.' [28] Occasionally this means that a state procedural rule which may properly preclude the raising of state claims in a state court cannot thwart review of federal claims in this Court. ”

“ In no case prior to Brown v. Allen, I submit, was there any substantial modification of the concepts articulated in the Frank decision. In Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543, this Court did require a hearing on federal habeas of a claim similar to that in Frank, of mob domination of the trial, even though the state appellate court had purported to pass on the claim, but only by refusing to 'assume that the trial was an empty ceremony.' [18] The decision of this Court is sufficiently ambiguous that it seems to have meant all things to all men. ”

“ Ragen do stand for is that this Court will, as a matter of sound judicial administration, accept what appears on its face to be an adequate state ground because the Federal District Court remains open for more intensive consideration of the petitioner's claim of inadequacy. ”

“ Moreover, we should be slow to reject-as an invalid barrier to the raising of a federal right-a state determination that one forum rather than another must be resorted to for the assertion of that right. ”

“ This is because his custody by New York does not violate any federal right, since it is pursuant to a conviction whose validity rests upon an adequate and independent state ground which the federal courts are required to respect. ”

“ Pitcairn, 324 U.S. 117, 126, 65 S.Ct. 459, 463, 89 L.Ed. 789:
' (O) ur power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory 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 advisory opinion.'
Another alternative, which would avoid the problem of advisory opinions, would be to take the entire case and to review on the merits the state court's decision of every question in it. ”

“ We say only that, in the circumstances of this case, Larson, taking a calculated risk, made a free choice not to jeopardize his life, and he is bound by that decision. * * * Whatever errors there were in his trial were known to Larson and to his counsel-for the same errors formed the basis for Juelich's appeal. Manifest Justice to an accused person requires only that he have an opportunity to correct errors that may have led to an unfair trial. The orderly administration of justice requires that even a criminal case some day come to an end.' 275 F.2d at 679-680.
This Court denied certiorari. ”

“ See also Hart and Wechsler, supra, note 21, at 420-421.↑ In view of the concession by the State, I assume in this discussion that Noia's confession was coerced. A confession, of course, may be coerced and yet still be a wholly reliable admission of guilt. ”

“ That authority, which has been exercised at least once, [30] remained unimpaired through the modifications of appellate and certiorari jurisdiction, [31] and exists today. [32] Acting pursuant to that authority in our hypothetical case, this Court might grant certiorari, 'ignore' the state ground of decision, decide the federal question and, instead of merely remanding the case, issue a writ requiring the petitioner's release from custody. ”