Sanders v. United States/Concurrence White

by Byron White

United States Supreme Court

373 U.S. 1

Sanders  v.  United States

 Argued: Feb. 25, 1963. --- Decided: April 29, 1963

Mr. Justice WHITE concurs in the result.

Mr. Justice HARLAN, whom Mr. Justice CLARK joins, dissenting.

This case, together with Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, form a trilogy of 'guideline' decisions in which the Court has undertaken to restate the responsibilities of the federal courts in federal post-conviction proceedings. Sain and Noia relate to federal habeas corpus proceedings arising out of state criminal convictions. The present case involves successive § 2255 applications (and similar habeas corpus proceedings under § 2244, which the Court finds sets the pattern for § 2255) arising out of federal convictions.

The over-all effect of this trilogy of pronouncements is to relegate to a back seat, as it affects state and federal criminal cases finding their way into federal post-conviction proceedings, the principle that there must be some end to litigation.

While, contrary to the Court, I think the District Court's denial without hearing of a second § 2255 application in this case was entirely proper in the circumstances shown by the record, the more serious aspect of the Court's opinion is the impact it is likely to have in curbing the ability of the Federal District Courts to cope efficiently, as well as fairly, with successive applications by federal prisoners, ^[1] the number of which will doubtless increase as a result of what is said today. The net of it is that the Court has come forth with a new § 2255 of its own which bears little resemblance to the statute enacted by Congress. And in the process the Court has even gone so far as to suggest that any tampering with its new composition may run afoul of the Constitution.

At the outset, there is one straw man that should be removed from this case. The Court is at great pains to develop the theme that denial of a prisoner's application for collateral relief is not res judicata. But the Government recognizes, as indeed it must in view of the decisions, that strict doctrines of res judicata do not apply in this field. The consequences of injustice-loss of liberty and sometimes loss of life-are far too great to permit the automatic application of an entire body of technical rules whose primary relevance lies in the area of civil litigation.

This is not to suggest, however, that finality, as distinguished from the particular rules of res judicata, is without significance in the criminal law. Both the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community. It is with this interest in mind, as well as the desire to avoid confinements contrary to fundamental justice, that courts and legislatures have developed rules governing the availability of collateral relief.

Thus it has long been recognized that not every error that may have occurred at a criminal trial may be raised in collateral proceedings. For many years after the Constitution was adopted, and even down to the present century, such proceedings were generally confined to matters of personal and subject matter jurisdiction. Cf. Fay v. Noia, 372 U.S. 391, 450-455, 83 S.Ct. 822, 853 (dissenting opinion of this writer). And while the scope of collateral review has expanded to cover questions of the kind raised by petitioner here, the Court has consistently held that neither habeas corpus nor its present federal counterpart § 2255 is a substitute for an appeal. See, e.g., Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982; Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417; see also, e.g., Franano v. United States, 8 Cir., 303 F.2d 470.

Similarly, the Court has held that not all questions that were or could have been raised in an initial application for collateral relief must necessarily be entertained if raised in a successive application. A District Court, for example, has discretion to deny a successive application if the claim asserted was heard and determined on a prior application, Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989. Indeed the Court has stated that it would be an abuse of discretion to entertain a second application if the claim raised had been raised before, a hearing had been held, and no proof in support of the claim had been offered at the hearing. Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999. And in the same year that § 2255 was adopted, the decision in Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356, made it clear that a successive application could be denied for abuse of the remedy even if the prisoner's claim had not been raised in any prior application, unless there were some acceptable excuse for the failure to do so.

It is in light of this history that § 2255, and the related § 2244, dealing with successive applications for writs of habeas corpus, must be considered. Concern with existing and potential abuse of the remedy by prisoners who made a pastime of filing collateral proceedings led to proposals that successive applications for habeas corpus on grounds previously available would be wholly barred, except in the form of petitions for rehearing to the same judge, and that applications under what became § 2255 would have to be submitted within one year after discovery of the facts or a change in the law. E.g., H.R. 4232, 79th Cong., 1st Sess.; H.R. 6723, 79th Cong., 2d Sess. These proposals were rejected in favor of the traditional discretion exercised by courts with respect to successive applications, and it was made clear that this discretion extended to a case in which an applicant asserted for the first time a ground that could have been raised before. Thus the final wording of § 2244 provided that the court shall not be required to entertain a petition

'* * * if it appears that the legality of such detention has been determined * * * on a prior application * * * and the petition presents no new ground not theretofore presented and determined * * *.' (Emphasis added.)

The word 'new,' a word ignored by the Court in its discussion of this provision, is of cardinal importance. A memorandum by Circuit Judge Stone, adopted in a Senate Report (S.Rep.No. 1527, 80th Cong., 2d Sess.), noted that two of the purposes of an earlier version cf. this provision were 'to compel petitioner to state in his petition all of the grounds for the writ then known to him' and 'to afford unlimited opportunity to present any grounds which petitioner may thereafter discover at any time.' (Emphasis added.) This latter purpose was 'brought about by allowing presentation of a subsequent petition based upon 'new' grounds 'not theretofore presented and determined." ^[2] Thus a 'new ground,' within the meaning of § 2244, is one that has not previously been asserted and had not previously been known. The Court is manifestly in error in its conclusion, ante, pp. 11-13, that the discretion provided for in § 2244 is limited to petitions relying on grounds previously heard and decided.

Although the wording of § 2255 is more general, it is clearly directed to the same end:

'The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.'

The 'relief' sought is the setting aside of the sentence; the statute contains no reference to the nature of the grounds urged in support of the motion, and there can be little doubt that the discretion vested in the court was intended to extend to cases in which a particular ground was urged for the first time.

Further, it would appear from the language of § 2255-the 'sentencing court' is not 'required to entertain' successive motions-that the court was given discretion to deny a second motion, on grounds of abuse, on its own initiative and without waiting for the Government to raise the point in its return. The provision, to this extent, departed from the rule of pleading declared in the year of its adoption in Price v. Johnston, supra, 334 U.S., at 292, 68 S.Ct., at 1063, 92 L.Ed. 1356-that in habeas corpus applications, 'it rests with the Government to make that claim (of abuse) with clarity and particularity in its return to the order to show cause.' Such a departure was amply justified by the fact that on a § 2255 motion, unlike a habeas corpus application, the prisoner's claim is presented to the sentencing court (usually the trial judge himself), which has ready access to the record of the original conviction and of the prior motions. Moreover, Congress could certainly have reasonably concluded, as did the dissenters in Price, that:

'It is not too much to ask the petitioner to state, however informally, that this * * * petition is based on newly discovered matter, or, in any event, on a claim that he could not fairly have been asked to bring to the court's attention in his * * * prior petitions. Such a requirement certainly does not narrow the broad protection which the writ * * * serves.' 334 U.S., at 294, ^[3] 68 S.Ct., at 1064, 92 L.Ed. 1356.

The Court in Price held only that the burden is on the Government to plead abuse of the writ; the burden of proving an adequate excuse was explicitly placed on the prisoner:

'Once a particular abuse has been alleged, the prisoner has the burden of answering that allegation and of proving that he has not abused the writ.' 334 U.S., at 292, 68 S.Ct., at 1063, 92 L.Ed. 1356.

The Court today, however, leaves the crucial question of burden of proof up in the air. If it means to suggest that this burden also rests with the Government, then it is going far beyond the holding of the sharply divided Court in Price. The relevant facts on the question of abuse would almost always lie within the exclusive possession of the prisoner, and any evidentiary burden placed on the Government would therefore be one that it could seldom meet.

It is startling enough that the Government may now be required to establish, in a collateral attack on a prior conviction, that a successive application is an abuse of the remedy. It is at least equally startling to learn that the question whether or not there has been abuse of the remedy may turn on whether the prisoner had 'deliberately' withheld the ground now urged or had 'deliberately' abandoned it at some earlier stage. Ante, p. 18. The established concept of inexcusable neglect is apparently in the process of being entirely eliminated from the criminal law, cf. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, and the standard that seems to be taking its place will, I am afraid, prove wholly inadequate and in the long run wholly unsatisfactory.

I must also protest the implication in the Court's opinion that every decision of this Court in the field of habeas corpus even one like Price v. Johnston, dealing with a purely procedural question on which reasonable men surely may differ-has become enshrined in the Constitution because of the guarantee in Article I against suspension of the writ. This matter may perhaps be brought back into proper perspective by noting again that at the time of the adoption of the Constitution, and for many years after-ward, a claim of the kind asserted by Price, or asserted here by petitioner, was not cognizable in habeas corpus at all. See p. 25, supra.

Section 2255, read against the back-ground of this Court's decisions and the history of the related provision § 2244, is surely designed to vest in the District Court a sound discretion to deny a successive motion, on its own initiative, for abuse of the remedy. At the very least, this exercise of discretion should be upheld in a case in which there has been no adequate explanation of the earlier failure to make the claim and in which the whole record, including that of the prior motion, casts substantial doubts on the merit of that claim. This is such a case.

In the affidavit filed in support of his second motion, the petitioner asserted that he 'did not understand trial proceeding owing to his mental incompetency cause(d) by the administration of a drug.' The judge who denied this motion was the same judge who presided at the trial, and the record not only shows that the judge took pains to make certain Sanders was aware of all of his rights but also indicates that Sanders did indeed understand the nature of the proceedings. After the judge explained at some length Sanders' right to force the Government to proceed by indictment, the following questions were asked:

'Having in mind all that I have told you do you wish to have the matter heard by the grand jury?

'The Defendant. No, your honor, I waive it.

'The Court. I didn't hear that.

'The Defendant. I waive that right.

'The Court. You waive that right?

'The Defendant. Yes.

'The Court. You understand you do have the right, though?

'The Defendant. Yes.

'The Court. And you now want to proceed without indictment and by way of information?

'The Defendant. Yes.'

In response to further questions, Sanders said he was acting freely and voluntarily. He then signed a waiver of indictment and after the information was read to him, pleaded guilty.

Sentencing followed some three weeks after, and about one year later Sanders filed a § 2255 motion alleging, inter alia, that the court had allowed him to be 'intimidated and coerced into intering (sic) a plea without Counsel, and any knowledge of the charges.' This motion was denied on the merits, not simply for insufficiency, the trial judge correctly stating that the charges were 'completely refuted by the files and records of this case.'

The motion before us now was filed some nine months after the initial application. In addition to commenting that he was 'not required to entertain a second motion for similar relief,' the trial judge said that he had 'reviewed the entire file' and was 'of the view that petitioner's complaints are without merit in fact.' In support of this conclusion, in addition to whatever inferences the judge may properly have drawn from his own observation of Sanders at the trial, there is:

(1) the record of the original trial, which strongly indicates that, contrary to his sworn allegation, petitioner did understand precisely what was going on and responded promptly and intelligently;

(2) an initial application under § 2255 which not only failed to mention the claim now urged-a lack of mental competence to understand-but indeed advanced a wholly inconsistent claim that the court allowed him to be 'intimidated and coerced' into pleading guilty; and (3) a second application, not filed for another nine months, without any explanation why a point which was obviously known to petitioner before, and which would so clearly have been relevant, had not previously been raised.

In the light of the whole record, including the prior application, the second motion rested on an assertion of fact that was highly suspect, if not self-refuting. If the assertion had been made in the initial application, or if a valid excuse had been offered for the failure to do so, a hearing would doubtless have been necessary. But to require a hearing under the present circumstances, and to tell the trial court that it has abused its discretion, is to sanction manifest abuse of the remedy.

I seriously doubt the wisdom of these 'guideline' decisions. They suffer the danger of pitfalls that usually go with judging in a vacuum. However carefully written, they are apt in their application to carry unintended consequences which once accomplished are not always easy to repair. Rules respecting matters daily arising in the federal courts are ultimately likely to find more solid formulation if left to focused adjudication on a case-by-case basis, or to the normal rule-making processes of the Judicial Conference, rather than to ex cathedra pronouncements by this Court, which is remote from the arena.

In dealing with cases of this type, I think we do better to confine ourselves to the particular issues presented, and on that basis I would affirm the judgment of the Court of Appeals.

Notes

1. According to the reports of the Administrative Office of the United States Courts, 538 § 2255 proceedings were commenced in 1960, 560 in 1961, and 546 in 1962. Annual Report of the Director, 1960, p. 231; id., 1961, p. 239; Preliminary Annual Report of the Director, 1962, Division of Procedural Studies and Statistics, p. 23. The Government, in referring to these figures in its brief, has stated that even they 'do not * * * appear to be complete in light of the Department's experience with petitions for writs of certiorari in this Court.'
2. The memorandum of Circuit Judge Stone was written at a time when the proposal was to bar successive applications except in the form of petitions for rehearing to the same judge that had passed on the prior application. But the language in issue here, defining those applications considered to be successive, i.e., those presenting 'no new ground not theretofore presented and determined,' was the same as that contained in § 2244 as ultimately enacted.
3. It seems clear that the actual decision in Price v. Johnston could not have entered into Congress' deliberations on §§ 2244 and 2255, since the decision was handed down only one month before formal enactment, and well after study and formulation of the proposals.