William J. Brennan, Jr.

“ Hence, we do not imply that respondent could have raised the equal protection claim only by citing 'book and verse on the federal constitution.' Daugharty v. Gladden, 257 F.2d 750, 758 (CA9 1958) ; see Kirby v. Warden, 296 F.2d 151 (CA4 1961) . We simply hold that the substance of a federal habeas corpus claim must first be presented to the state courts. The claim that an indictment is invalid is not the substantial equivalent of a claim that it results in an unconstitutional discrimination. ”

“ We think not.
Until he reached this Court, [9] respondent never contended that the method by which he was brought to trial denied him equal protection of the laws. Rather, from the outset respondent consistently argued that he had been improperly indicted under Massachusetts law and, to the extent he raised a federal constitutional claim at all, that the indictment procedure employed in his case could not be approved without reference to whether the Fifth Amendment's requirement of a grand jury indictment applied to the States. ”

“ The only suggestions of a claimed denial of a federal right were statements in respondent's brief questioning the continuing validity of the holding in Gedzium that the provision of the Fifth Amendment that ' (n) o person shal be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury' was inapplicable to the States. ”