Sunal v. Large

Mr. Justice Rutledge,

dissenting.

I am in agreement with Mr. Justice Frankfurter in the result and substantially in the views he expresses. I would modify them by making definite and certain his tentatively expressed conclusion that the great writ of habeas corpus should not be confined by rigidities charac*188terizing ordinary jurisdictional doctrines. And I agree with Judge Learned Hand, in the' view stated for the Circuit Court of Appeals in Kulick’s case, that upon the sum of our decisions,1 regardless of the variety of statement in the opinions, no more definite rule is to be drawn out than that “the writ is available, not only to determine points of jurisdiction, stricti juris, and constitutional questions; but whenever else resort to it is necessary to prevent a complete miscarriage of justice.” 157 F. 2d 811, 813.

In my opinion not only is this the law, measured by the sum of the decisions and the applicable statute,2 but the aggregate of the results demonstrates it should be the law.

Confusion in the opinions there is, in quantity. But it arises in part from the effort to pin down what by its nature cannot be confined in special, all-inclusive categories, unless the office of the writ is to be diluted or destroyed where that should not happen. And so limitation in assertion gives way to the necessity for achieving the writ’s historic purpose when the two collide. Admirable as may be the effort toward system, *189this last resort for human liberty cannot yield when the choice is between tolerating its wrongful deprivation and maintaining the systematist’s art.

The writ should be available whenever there clearly has been a fundamental miscarriage of justice for which no other adequate remedy is presently available. Beside executing its great object, which is the preservation of personal liberty and assurance against its wrongful deprivation, considerations of economy of judicial time and procedures, important as they undoubtedly are, become comparatively insignificant.3 This applies to situations involving the past existence of a remedy presently foreclosed, as well as to others where no such remedy has ever been afforded.

In the prevailing state of our criminal law, federal and state, there are few errors, either fundamental or of lesser gravity, which cannot be corrected by appeal timely taken, unless the facts disclosing or constituting them arise after the time has expired. If the existence of a remedy by appeal at some stage of the criminal proceedings is to be taken for the criterion, then in very few instances, far less than the number comprehended by our decisions, will the writ be available. Taken literally, the formula so often repeated, that the writ is not a substitute for appeal, is thus in conflict with every case where the ground upon which the writ has been allowed either was or might have been asserted on appeal.4 *190The formula has obvious validity in the sense that the writ is not readily to be used for overturning determinations made on appeal or for securing review where no specification has been made or no appeal has been taken of matters not going to make the conviction a gross miscarriage of justice.

But any effort to shut off the writ’s functioning merely because appeal has not been taken in a situation where, but for that fact alone, the writ would issue, seems to me to prescribe a system of forfeitures in the last area where such a system should prevail. Certainly a basic miscarriage of justice is no less great or harmful, either to the individual or to the general cause of personal liberty, merely because appeal has not been taken, than where appeal is taken but relief is wrongfully denied.

These considerations apply with special force, though not exclusively, where good reason existed, as I think did here, for failure to note the appeal in the brief time *191allowed.5 Whether or not the inferior federal courts were justified in taking the Falbo decision6 for more than its specific ruling, the fact remains that their broadly prevailing view was that that case had cut off all right to make such defenses as Sunal and Kulick tendered.7

*192In that prevailing climate of opinion in those courts, there was hardly any chance that appeal to the federal circuit courts of appeals would bring relief by their action.8 The chances for reversal therefore hung almost exclusively upon the doubtful, not to say slender,9 chance that this Court in the exercise of its discretionary power would grant certiorari.

The deprivation here was of the right to make any substantial defense.10 I do not think a trial which forecloses the basic right to defend, upon the only valid ground available for that purpose, is any less unfair or conclusive as against the office of habeas corpus than one which takes place when the court is without jurisdiction to iry the offense, as when the charge is made under an unconstitutional statute or for other reason sets forth no lawfully prescribed offense, or when the court loses jurisdiction by depriving the accused of his *193constitutional right to counsel. That right is no more and no less than an important segment of the right to have any valid defense advanced and considered. It becomes almost meaningless if the larger right to defend is itself cut off.11

With Mr. Justice Frankfurter, since the Court reaches only the question of the availability of habeas corpus, I do not consider others.

Mr. Justice Murphy joins in this dissent. He believes that today’s decision unduly narrows the point at which due process may be accorded those accused or convicted of violating the Selective Training and Service Act of 1940. Cf. his dissenting opinion in Falbo v. United States, 320 U. S. 549, 555, and his concurring opinion in Estep v. United States, 327 U. S. 114, 125.

Including those cited in the Court’s opinion and that of Mr. Justice Frankfurter. See also dissenting opinion, Ex parte Craig, 282 F. 138, 155-159, affirmed in Craig v. Hecht, 263 U. S. 255; The Writ of Habeas Corpus in the Federal Courts (1935) 35 Col. L. Rev. 404.

Rev. Stat. § 761, 28 U. S. C. § 461, which commands the court, after hearing to “dispose of the party as law and justice require.” Cf. Frank v. Mangum, 237 U. S. 309, 330, 331, and dissenting opinion of Mr. Justice Holmes, at 345 ff., concurred in by Mr. Justice Hughes, who afterward as Chief Justice wrote the Court’s opinion in Bowen v. Johnston, 306 U. S. 19. See note 4. Pertinently the statute applies to prisoners “in custody in violation of the Constitution or of a law or treaty of the United States . . . .” Rev. Stat. § 753, 28 U. S. C. § 453.

It is for this reason that the doctrine of res judicata does not apply to habeas corpus determinations, Waley v. Johnston, 316 U. S. 101, 105, although a prior refusal to discharge the prisoner on a like application may be given weight, Salinger v. Loisel, 265 U. S. 224, 231, for obvious reasons of judicial administration.

In the following cases the Court either passed upon the substance of the contentions presented in the petition for writ of habeas corpus *190or held that the petitioner was entitled to a hearing, although, so far as appears, at the time the petition was filed the time to appeal had expired, e. g., Bowen v. Johnston, 306 U. S. 19; Walker v. Johnston, 312 U. S. 275; Johnson v. Zerbst, 304 U. S. 458, see The Writ of Habeas Corpus in the Federal Courts (1935) 35 Col. L. Rev. 404, 414, n. 66; an appeal had already been taken, Moore v. Dempsey, 261 U. S. 86; or the time to appeal had not expired, Hunter v. Wood, 209 U. S. 205; In re Sawyer, 124 U. S. 200; Wo Lee v. Hopkins, 118 U. S. 356, discussed in The Writ of Habeas Corpus in the Federal Courts, supra, at 414, n. 60. See also Appleyard v. Massachusetts, 203 U. S. 222, 225-226; Ex parte Bridges, 2 Woods 428, 430, approved in Ex parte Royall, 117 U. S. 241.

In his dissenting opinion in Ex parte Craig, supra note 1, Judge Learned Hand, reviewing the authorities, said: “The appellant’s attempt rigidly to classify these exceptions appears to me more definite than the books warrant. A safer rule is to say somewhat vaguely that they must be occasions of pressing necessity.” 282 F. at 156.

The opinion of the Circuit Court of Appeals in the Kulick case, after stating the summarized effect of our decisions as quoted in the text above, said concerning this case: “The occasion at bar is such; certainly the reasons for allowing it are more compelling than were those in Bowen v. Johnston [see notes 3, 4, supra], where there merely appeared ‘to be uncertainty and confusion . . . whether offenses within’ a national park ‘are triable in the state or federal courts.’ It would pass all fair demands upon Kulick’s diligence to conclude him because of his failure to appeal. Not only had there not been any glimmer of a positive chance of success, but there had been an unusual consensus of judicial opinion against it in the lower courts. Moreover, although a number of the decisions could be explained upon the ground that those inducted had not wholly exhausted their administrative remedies; in a number of others they had done so; and no distinction had been established between the two. Indeed, in United States v. Flakowicz, supra [146 F. 2d 874], which had been one of these, the Supreme Court denied certiorari only a fortnight before May 12th,” the date of Kulick’s conviction. 157 F. 2d at 813-814. See note 9 infra.

Falbo v. United States, 320 U. S. 549. The opinion, though containing language emphasizing the failure of Congress to provide expressly for judicial review of selective service boards’ classifications, explicitly pointed out that “a board order to report is no more than a necessary intermediate step in a united and continuous process designed to raise an army speedily and efficiently” and that, if there were a constitutional requirement for judicial review, “Congress was not required to provide for judicial intervention before final acceptance of an individual for national service.” Pp. 553, 554. The opinion also stated: “Surely if Congress had intended to authorize interference with that process by intermediate challenges of orders to report, it would have said so.” P. 554. (Emphasis added.)

See note 5 supra, and the cases cited in Mr. Justice Frankfurter’s opinion in Estep v. United States, 327 U. S. 114, 139.

In reference to Kulick’s case the chance was practically nil, since the Circuit Court of Appeals for the Second Circuit previously had ruled the question adversely to the validity of the defenses in United States v. Flakowicz, 146 F. 2d 874, and certiorari had been denied here. 325 U. S. 851. See note 5.

Smith v. United States, 148 F. 2d 288, afterwards reversed here, 327 U. S. 114, apparently was the first in which the Circuit Court of Appeals for the Fourth Circuit decided the question. The decision was rendered April 4, 1945. Sunal was convicted on March 22, 1945.

Although denial of certiorari is not to be taken as expression of opinion in any case, it would be idle to claim that it has no actual or reasonable influence upon the practical judgment of lawyers whether appeal should be noted and taken upon the chance that in a case substantially identical this Court’s discretion would be exercised, in the absence of conflict, in a contrary manner at the stage of application for certiorari.

Under the rule applied in the district courts and the circuit courts of appeals the only defenses open would have been that the defendants had not refused to take the oaths. No defense relating to the validity of the statute, the regulations, or their application in the particular cases was available.

Cf. Yakus v. United States, 321 U. S. 414, dissenting opinion, at 460 ff.