whom
Mr. Justice Black joins, dissenting.*This case concerns the exercise by the District Courts of their habeas corpus jurisdiction on behalf of State prisoners when a petition for certiorari to review a State court’s determination of a federal claim was not first brought in this Court. In the generality of instances the issue is whether denial of certiorari is a prerequisite to *220resort to the District Courts. The case thus raises serious questions affecting the relations between State and federal authorities as well as between this Court and the lower federal courts. My view in brief is that federal courts must withhold interference with State criminal justice until every opportunity available in the State courts for the vindication of a federal right has been exhausted. Whether the State remedies have been so exhausted often involves elusive questions of local law with which district judges are more familiar than we can be without the light the lower courts afford us. Therefore, the power of the District Courts to issue a writ of habeas corpus should not be barred simply because a petition for certiorari was not first made in this Court. To hold otherwise is to disregard the settled rule that denial of certiorari has no legal significance or, in the alternative, if denial of certiorari remains without bearing on the merits in habeas corpus as in other cases, to require the State prisoner to go through the motion of securing a denial is to command a gesture which is meaningless to him and burdensome to this Court. In any event, to leave the District Courts in the dark as to what a denial of certiorari means in habeas corpus cases is not consistent with the fair administration of justice.
1. The course of our decisions on the power of the lower federal courts to entertain an application for a writ of habeas corpus on behalf of State prisoners has not run smooth. There is a reason. This seemingly technical problem of jurisdiction concerns the relation of the United States and the courts of the United States to the States and the courts of the States. Under any circumstances this “is a very delicate matter that has occupied the thoughts of statesmen and judges for a hundred years . . . .” Memorandum of Mr. Justice Holmes, August 20, 1927, denying an application for stay pending a petition for certiorari. 5 The Sacco-Vanzetti Case 5516. *221Prior to the Civil War, habeas corpus was available in the United States courts, barring limited exceptions, only for those in federal custody. The Act of February 5, 1867, extended the power of the United States courts to grant writs of habeas corpus to “all cases where any person may be restrained of his . . . liberty in violation of the constitution, or of any treaty or law of the United States . . . .” 14 Stat. 385. A conflict between State and federal authorities in relation to the administration of criminal justice touches that “very delicate matter” at its most sensitive point. The Act of 1867 opened wide the door to that conflict. It has become intensified during the last twenty years because of the increasing subjection of State convictions to federal judicial review through the expanded concept of due process. See, e. g., Powell v. Alabama, 287 U. S. 45, and Mooney v. Holohan, 294 U. S. 103. It ought not to be too surprising, therefore, that the full implications of federal restrictions upon, the free range of a State’s criminal justice have taken time to unfold.
2. Decisions on matters of procedure within the Court’s control ought not to be like shifting sand. Quick fluctuations in them should be avoided unless a rule of practice has proven itself mischievous in practice. The real question before us in this case is whether Wade v. Mayo, 334 U. S. 672, should be overruled. Whether this overruling is to be done forthrightly by two words saying the case “is overruled” or the overruling is euphemistically done by fifteen words hardly changes the fact. Respect for an explicit adjudication on a matter of procedure very recently rendered after the fullest consideration, as well as the soundness of the decision, should lead us to adhere to Wade v. Mayo.
3. The weight which attaches to a decision of this Court particularly on matters of practice is naturally enough affected by the circumstances attending it. Apart *222from the intrinsic justification of Wade v. Mayo on grounds of policy, to which I shall shortly advert, that decision was a product of the deliberative process at its weightiest. On original submission in October, 1947, and full consideration by the Court, the case was restored to the docket in November, 1947, was resubmitted on March 9, 1948, received thorough reconsideration by the Court, and after long incubation was decided on June 14, 1948. The procedural issue which received this unusual attention was thus phrased in the Court’s opinion:
“whether it was proper for a federal district court to entertain a habeas corpus petition filed by a state prisoner who, having secured a ruling from the highest state court on his federal constitutional claim, had failed to seek a writ of certiorari in this Court.” 334 U. S. at 67^-75.
This is the way the issue was framed in the dissenting opinion:
“The first question in this case is whether Wade’s failure to bring a writ of certiorari to this Court from the judgment of the Florida Supreme Court in his state habeas corpus proceeding should affect his effort to obtain release through a federal writ of habeas corpus. Or, to rephrase the problem, should certiorari to this Court be considered a part of the state remedy for purposes of the well-recognized doctrine of exhaustion of state remedies?” 334 U. S. at 686.
The problem as rephrased in the dissent stated with precision the decisive inquiry. Relief from a federal court cannot come until corrective State process to vindicate the claimed federal right is unavailable. This has been so ever since Ex parte Royall, 117 U. S. 241. Therefore, if the “state remedies” which must be exhausted include an application for review of a State court’s decision , by our discretionary writ of certiorari, it would be pre*223mature for a District Court to entertain a petition for habeas corpus before such application. That question— whether a petition for certiorari is to be deemed part of the “state remedies” — had never been canvassed by this Court. The Court had made some uncritical assertions about it and in a moment I shall deal with them. But the problem had never been critically analyzed until the issue became determinative of the decision in Wade v. Mayo.
4. The answer which the dissent' gave to the problem determined the dissent. It concluded “that certiorari should be considered a part of the state procedure for purposes of habeas corpus.” 334 U. S. at 689. The Court’s analysis of the problem led to the contrary result. While fully acknowledging the principle that State remedies must be exhausted before relief can be sought in a federal court, it rejected the notion that an application to this Court for review by certiorari can be deemed part of the State remedies.
5. Now the Court likewise rejects the basis of the dissent in Wade v. Mayo — that a petition for certiorari is to be deemed part of State remedies and as such must be exhausted. But it retains the conclusion which was drawn from the rejected premise. It does so in complete disregard of our repeated insistence regarding the significance of denial of petitions for certiorari, reflecting the narrow range of inquiry not going to the merits which alone is open on such petitions. Likewise disregarded are practical considerations relating to the administration of this Court’s business, particularly the inherent difficulties of ascertaining in this Court in the first instance the available remedies under State procedure, which is a threshold question in determining whether State remedies have been exhausted.
6. Of course a State prisoner can come here and seek review, by way of certiorari, of a denial by the State court *224of his alleged federal constitutional right. The Court may grant his petition and decide the issue against him. If the petition is granted and the State’s view of his federal claim is sustained here, he may still sue out a writ in the District Court. The doctrine of res judicata is inapplicable. In the Sacco-Vanzetti case, application was first made to the Circuit Justice, then to the Senior Circuit Judge, and thereafter to the District Judge. See 5 The Sacco-Vanzetti Case 5532, 5533, 5534. To be sure, prior denials carry considerable weight in disposing of a later application, but merely by way of safeguard against “abusive use” of the writ while fully respecting “its recognized status as a privileged writ of freedom.” Salinger v. Loisel, 265 U. S. 224, 232.
Our problem is not whether a petitioner may come here after exhausting his State remedies but whether he must come here and have his petition for certiorari denied as a condition to invoking a federal court’s jurisdiction on habeas corpus. An answer to this question necessarily turns on the significance of a denial of certiorari. Me. Justice Reed’s opinion makes a Delphic disposition of this issue, which will inevitably create confusion among federal judges. It surely does not make for clarity of doctrine nor does it promote the practical administration of justice to suggest that denial of certiorari may be given weight upon later application for habeas corpus in lower federal courts, but to refuse to be explicit. On the basis of this pronouncement, how are some 200 district judges to dispose of petitions for habeas corpus brought by State prisoners after denial of certiorari here? The opinion in effect invites them to take into consideration the prior denial here, but then threatens them with possible reversal for so doing.
The state of uncertainty in which the District Courts are left must lead to conflicting interpretations of our undisclosed meaning. Some judges will infer that denial *225of certiorari bears on the exercise of habeas corpus jurisdiction. Others will feel they should adhere to this Court’s old avowals concerning denial until they are told explicitly to the contrary. Most confusing of all, many judges, as is the way of judges, are unlikely to resolve the ambiguity decisively. Instead, they will take an equivocal position in denying a writ of habeas corpus, relying in part on the discretionary aspect of habeas corpus and in part on the fact that this Court denied certiorari. Such a disposition will either lead lawyers to be dubious about pressing an appeal, or, if the District Court’s decision be appealed, such a blend of reasons in denying the writ is not likely to be overturned by a Court of Appeals, and it would be most natural for this Court not to grant certiorari to review such a case. The significance of a denial of certiorari given by the lower courts would not be presented in such an unentangled form as would commend itself according to normal criteria for a grant of certiorari. Adjudication by this Court of the specific issue will thus be greatly delayed. The result may well be that denial of certiorari would in practice attain a significance which the Court is unwilling to give it by candid adjudication.
It is, of course, one of our functions to resolve conflicts among the lower courts. But it is not our duty to stimulate such conflicts. Especially with regard to habeas corpus should we avoid such ambiguity. “The great writ of liberty” ought not to be treated as though we were playing a game. When a question affecting the habeas corpus jurisdiction of the District Courts is before us, it is our duty to guide the District Courts and not refuse to guide them. We cannot avoid an answer on the ground that the question is not before the Court. Opinions are required in our legal system in order that the reasoning which justifies a conclusion may be made manifest. The disclosure of the reasoning by which a *226conclusion is reached cannot remotely be deemed dictum. A decision implies the process of reasoning which requires it. It is essential to be clear about what denial of certiorari means before determining whether a petition for certiorari is prerequisite to the exercise of habeas corpus jurisdiction by a District Court. Surely it is necessary to consider what a procedural requirement means before making it a requirement.
7. The significance of a denial of a petition for certiorari ought no longer to require discussion. This Court has said again and again and again that such a denial has no legal significance whatever bearing on the merits of the claim. The denial means that this Court has refused to take the case. It means nothing else. The State court’s judgment is left undisturbed without any legal reinforcement whatever of the views which the State court expressed. Counsel at the bar have frequently been stopped for drawing comfort out of such a denial and the Court’s opinions have indicated impatience with failure to recognize that the only thing that such a denial imports is that there were not four members of the Court who deemed it desirable, for their respective reasons, to review a decision of the lower court. Even before the Judiciary Act of 1925 so vastly extended this Court’s certiorari jurisdiction, the Court said: "The denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times.” United States v. Carver, 260 U. S. 482, 490. This note of impatience has been sounded repeatedly.
The wholly negative meaning of a denial of certiorari is not so merely because we have said it. We have said it because it must be so unless the whole conception of certiorari in relation to the business of this Court is to be radically transformed. Such a revolutionary change cannot justifiably be taken in relation to one large group *227of cases without drastie revision of the Court’s treatment of such cases, with far-reaching consequences to the business of the Court and its proper discharge.
Nothing is more basic to the functioning of this Court than an understanding that denial of certiorari is occasioned by a variety of reasons which precludes the implication that were the case here the merits would go against the petitioner. Petitions may have been denied because, even though serious constitutional questions were raised, it seemed to at least six members of the Court that the issue was either not ripe enough or too moribund for adjudication; that the question had better await the perspective of time or that time would soon bury the question or, for one reason or another, it was desirable to wait and see; or that the constitutional issue was entangled with nonconstitutional issues that raised doubt whether the constitutional issue could be effectively isolated; or for various other reasons not relating to the merits. Divergent and contradictory reasons often operate as to the same petition and lead to a common vote of denial. The want of explanations for denials of certiorari is in part due to the fact that a collective reason frequently could not be given. To suggest that a District Court can determine the significance to be attached to this Court’s denial of certiorari by an examination of the record on certiorari here is to offer the District Courts darkness without Ariadne’s thread. Particularly is this true in cases sought to be brought here from the State courts in which State and federal grounds are frequently entangled and an unambiguous federal question often does not emerge from the record.
To attach significance to a denial of a certiorari petition regarding the merits of the issues raised by the petition would be to transform a mechanism for keeping cases out of this Court into a means of bringing them in. It would *228contradict all that led to the adoption of certiorari jurisdiction and would reject the whole course of the Court’s treatment of such petitions, both in practice and profession. For if denial does import an expression of opinion upon the merits of the case, then we must deal with the merits of the case. During the last four fiscal years the District Courts throughout the country had annually from 500 to 600 habeas corpus cases brought by petitioners under State custody. To overrule Wade v. Mayo and to make it the duty of this Court to pass on the merits of anything like the number of these cases which would have to be brought here on petitions for certiorari from the State courts would throw an almost impossible burden upon the Court.1
8. We certainly ought not to condition the power of the local District Court to entertain a petition for habeas corpus on a prior denial of a petition for certiorari here if such denial carries no other significance than does the denial of certiorari in any other class of cases. Meaningless multiplication of steps in the legal process can hardly be deemed a virtue in judicial administration. Nor would it be more respectful of the dignity of a State court for the District Court to disagree with the State court’s view of federal law if such disagreement came after this Court had denied certiorari rather than before.
It is suggested, however, that this Court should have the first opportunity to consider whether a State court *229was right in having denied a constitutional claim — what has been colloquially called a "first-crack” policy. The most weighty considerations of practical administration counsel against it. The burden of the Court’s volume of business will be greatly increased, not merely because a greater number of certiorari petitions would be filed, but by reason of the effective pressure toward granting petitions more freely. For if the “first-crack” policy has any validity, it would require that every doubt be resolved in favor of granting certiorari, rather than leaving the case to the District Courts.
Moreover, State court decisions involving denial of federal claims made in collateral attack on a conviction are frequently decisions based merely on allegations in the pleadings. This Court can dispose of them only as a matter of abstract pleading. The District Courts, on the other hand, can hold hearings when deemed appropriate, consider allegations on their merits if they are at all substantial and dispose of what often turn out to be unmeritorious claims. Thus, the impact upon federal-State relationships of reversals of State court decisions, which this Court may not be able to avoid when it is limited to the pleadings, may well be avoided by lower federal courts, looking beyond paper allegations to the merits.
9. There is still another reason why it makes against, not for, sound administration of justice to bar exercise by a District Court of its habeas corpus jurisdiction merely because the discretionary power of this Court to review a State court decision has not been invoked. It is that cases involving federal claims by State prisoners so frequently involve questions of State law which must be answered before the federal issue can be reached. State questions are of two kinds: (1) Did the adverse State ruling exhaust the prisoner’s available State rem*230edies? (2) May the State court’s judgment be deemed to rest on some State ground?
Nothing stands out more prominently in the Court’s experience with these cases than the doubts and difficulties in ascertaining the law controlling local practice and local remedies. Thus, according to the procedure of one State a constitutional issue like that in Mooney v. Holohan, supra, must be raised by habeas corpus, not coram nobis, while in another State only coram nobis is available, not habeas corpus. Although a State court may have felt that it wrote clearly, we may not be able to read clearly or at least in unison; some members of the Court read one way, some another. See, e. g., New York ex rel. Whitman v. Wilson, 318 U. S. 688; Morhous v. Supreme Court of New York, 293 N. Y. 131, 56 N. E. 2d 79; People v. Sadness, 300 N. Y. 69, 89 N. E. 2d 188.
The difficulties in determining exhaustion of State remedies are illustrated by a litigation another stage of which was reached by denial of certiorari last Monday. Hawk v. Nebraska, 339 U. S. 923. At an earlier date, the Supreme Court of Nebraska had affirmed a denial of habeas corpus by the lower State court. Hawk v. Olson, 145 Neb. 306, 16 N. W. 2d 181. This Court granted certiorari and reversed on the merits, acting on the assumption that a federal right had been disregarded, 326 U. S. 271, despite our earlier statement in Ex parte Hawk, 321 U. S. 114, 116, to the effect that State remedies could not be deemed exhausted in Nebraska until coram nobis had been attempted. On the remand, the Nebraska Supreme Court advised us that we had misconceived its opinion and misunderstood local procedure — that it had not denied a federal claim out of hand but decided only that habeas corpus was not the proper procedural road to take in Nebraska. 146 Neb. 875, 22 N. W. 2d 136. Hawk then applied for a writ of habeas corpus in the federal District Court for Ne*231braska, but was told that he must first try coram nobis in the State courts. 66 F. Supp. 195, affirmed sub nom. Hawk v. Jones, 160 F. 2d 807. The district judge showed his knowledge of his local law, for when the federal claim was asserted by coram nobis it was heard on the merits, decided by a Nebraska trial court against the petitioner and affirmed by the Nebraska Supreme Court, Hawk v. State, 151 Neb. 717, 39 N. W. 2d 561.
The Hawk litigation illustrates the importance of the doctrine of exhaustion of State remedies. That doctrine is vital to the harmonious functioning of two judicial systems where one is subordinate to the other. But the litigation also shows that waste and friction are bound to be promoted if review of State court decisions in this field will have to come here initially. We are dealing with elusive and treacherous local legal materials which in their nature are not within the special competence of this Court. Such materials look one way if one examines only the dead letter of print. But to one brought up within the local system they carry meaning which never can be got from books. See Diaz v. Gonzalez, 261 U. S. 102, 106. The sure-footed manner in which the federal district judge dealt with Nebraska procedure in Hawk v. Olson, supra, indicates that he would not have made the error into which this Court fell. The Nebraska situation is representative of the difficulties and doubts that this Court has encountered again and again in regard to the local remedies available. The matter comes peculiarly within the rule of wisdom, often applied by this Court, whereby questions of local law and local practices will not be decided here but will be submitted to the knowledgeable views of federal judges in the various localities. See Gardner v. New Jersey, 329 U. S. 565, 583, and cases cited. This rule respects all the considerations that preclude intervention by a federal court until the State courts have fully acted.
*232Burke v. Georgia, 338 U. S. 941, is another admirable illustration of why we should not require cases raising a dubious constitutional question as to the validity of State convictions to be brought here before habeas corpus is sought in the District Courts. That we denied certiorari “without prejudice” to future proceedings in the District Court carried no legal significance.2 The case merely demonstrates how frequently in this situation preliminary questions of State procedure and State court jurisdiction are involved. Instead of allowing these local issues to be canvassed initially in the District Courts, it is now proposed to deal with cases like Burke v. Georgia by requiring that they be brought here enveloped in the fog of State procedural law and then leaving it to the District Courts to lift the fog after we have concluded that it is too thick for us to pierce. Such procedure, I submit, would neither further the administration of justice nor be conducive to the proper use of this Court’s time for the effective conduct of its inescapable business nor advance the self-esteem of State courts.
10. Nor need we be concerned lest the federal District Courts will lightly inject themselves into the State criminal process and open wide the State prison doors. Experience completely dispels such excogitated fears. The District Courts are presided over by judges who are citizens of the State, with loyalties to it no less strong than those of the judges of the State courts. Judges often come to the federal courts from the State courts. The proof of the pudding is in the eating. The showing is overwhelming that the District Courts grant writs of habeas corpus most sparingly and only with due re*233gard for this Court’s decisions under the Due Process Clause.3
Even though a petition for habeas corpus in a federal District Court may involve constitutional questions which were found against the petitioner by the highest court of his State, the District Court is not sitting as a court of review of the State court. A petition for habeas corpus in a federal court, after the State process has been exhausted, “comes in from the outside,” as Mr. Justice Holmes phrased it in his dissenting opinion in Frank v. Mangum, 237 U. S. 309, 345, 346, a view which established itself as law in Moore v. Dempsey, 261 U. S. 86. If it be suggested that as a matter of appearance, legal analysis apart, a federal District Court might be granting relief which the highest court of the State had denied, the same unanalyzed appearance would attach to a District Court’s granting relief after this Court had denied it.
11. Due regard for State and federal relations as expressed in the doctrine of exhaustion of State remedies and adherence to the function played by certiorari in the business of this Court combine to reject as erroneous the notion that federal District Courts are to be barred from exercising their habeas corpus jurisdiction if certiorari was *234not first sought here. The error derives from the assumption that a petition for certiorari to this Court was included in the “State remedies available” which must be exhausted before a federal court can entertain a writ of habeas corpus. This assumption appears for the first time in a per curiam opinion in Ex parte Hawk, 321 U. S. 114, 117. It was repeated, though not in issue, in the per curiam in White v. Ragen, 324 U. S. 760, 764. A consideration of what actually was said in Ex parte Hawk on this matter makes it perfectly clear how the misconception about certiorari in relation to the District Court’s jurisdiction in habeas corpus crept into Ex parte Hawk. The following is everything contained in Ex parte Hawk on the subject:
“Ordinarily an application for habeas corpus by one detained under a state court judgment of conviction for crime will be entertained by a federal court only after all state remedies available, including all appellate remedies in the state courts and in this Court by appeal or writ of certiorari, have been exhausted. Tinsley v. Anderson, 171 U. S. 101, 104-5; Urquhart v. Brown, 205 U. S. 179; United States ex rel. Kennedy v. Tyler, 269 U. S. 13; Mooney v. Holohan, supra, 115; Ex parte Abernathy, 320 U. S. 219.” 321 U. S. at 116-17.
The essence of this statement is the doctrine of exhaustion of State remedies. Two of the citations — Mooney v. Holohan and Ex parte Abernathy — have only that relevance. The three other citations — Tinsley v. Anderson; Urquhart v. Brown; United States ex rel. Kennedy v. Tyler — are directed to the particularization in the main statement as to the exhaustion of “all state remedies available, including all appellate remedies ... in this Court . . . .” These three cases illustrate a series of decisions in this Court holding that a lower federal court *235ordinarily ought not to exercise its jurisdiction in habeas corpus in favor of one in State custody even after a final determination by the highest court of a State unless he has availed himself of his remedy “to review it by writ of error from this court.” Tinsley v. Anderson, 171 U. S. 101, 105.
Of course. A writ of error was a writ of right. It makes all the difference in the world whether a prisoner knocks at the door of this Court to invoke its grace or has unquestioned access for the final determination of the federal question as to which the highest court of the State was merely an intermediate tribunal. The latter was the situation in the three cases cited in Ex parte Hawk. In the writ of error cases this Court held habeas corpus in the lower federal courts ought not to take the place of a mandatory appeal. Markuson v. Boucher, 175 U. S. 184.
But this jurisdictional situation was drastically changed by the Act of September 6,1916, 39 Stat. 726, and the Act of February 13, 1925, 43 Stat. 936. The whole purport of this transforming jurisdictional legislation was to bar the door of this Court to litigation like this flood of habeas corpus cases. After this shift from review as of right to review by grace, it could no longer be said that a litigant forwent his right to have this Court review and reverse a State court. The right was gone. Only an opportunity — and a slim one — remained. It completely misconceives the doctrine which required a case to be brought to this Court by writ of error, because it was the duty of this Court to adjudicate the claim on the merits, to apply it to the totally different factors involved in certiorari. All the considerations of policy required that the process of constitutional adjudication through writ of error be exhausted before a lower federal court could step in. Until Ex parte Hawk there was no suggestion of assimilating certiorari to the writ of error *236doctrine. In the present context of the Court’s business in relation to these cases — their volume and the required knowledge of local law with which the local federal judges are much more familiar than we can possibly be — all considerations of policy urge against requiring certiorari to be filed and denied before the District Court may be allowed to exercise jurisdiction.
The reasons underlying stare decisis are not applicable to such a procedural suggestion as Ex parte Hawk made regarding the requirement of petitioning this Court for certiorari before evoking the District Court’s jurisdiction on habeas corpus. That suggestion never was translated into practice so far as the records of this Court disclose. What was specifically decided in Ex parte Hawk did become the practice of this Court — that is, petitions for leave to file a writ of habeas corpus in this Court under § 262 of the Judicial Code, now 28 U. S. C. § 1651, were thereafter denied. But no instance has been revealed in which this Court acted on the suggestion that exhaustion of State remedies includes denial of certiorari here. Apart from the fact that Wade v. Mayo displaced the inclusion of certiorari as part of the State remedies, it was recognized at the last term of Court that the scope of Ex parte Hawk was that it expressed the “doctrine of exhaustion of state remedies.” Young v. Ragen, 337 U. S. 235, 238.
12. A final point remains and that is the suggestion that the provision of the 1948 revision of the Judicial Code requires adherence to what was said in Ex parte Hawk about resort to certiorari. The Code provisions say no such thing nor do the Reviser’s notes. Section 2254 of Title 28 merely formulates the judicial doctrine first announced by this Court in Ex parte Royall, 117 U. S. 241 — the doctrine of exhaustion of State remedies:
“An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears *237that the applicant has exhausted the remedies available in the courts of the State ....
“An applicant shall not be deemed to have exhausted the remedies 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.”
Wade v. Mayo made it clear that certiorari is not a remedy “available in the courts of the State” and no claim is now made to the contrary. With that abandonment goes the uncritical inclusion by Ex parte Hawk of certiorari among the remedies of the State. Wade v. Mayo, to be sure, could not have been before the Congress, but the Reviser characterized § 2254 as “declaratory of existing law as affirmed by the Supreme Court,” adding “See Ex parte Hawk.” That decision is sound enough in its essential requirement for “exhaustion of State remedies.” The slip in analysis it contained as to what are “State remedies” is surely not the equivalent of an enactment by Congress. A far more persuasive ease for finding reenactment by Congress of a decision of this Court was rejected in Girouard v. United States, 328 U. S. 61.
13. In short, the decision reached today has alternative consequences neither of which, I respectfully submit, can be justified. In barring a District Court from entertaining a petition for habeas corpus on behalf of a State prisoner prior to denial of certiorari here, the decision must mean either (1) that denial of a petition for certiorari in this class of cases, unlike denials in all other classes of cases, would serve the purpose of an adjudication on the merits, thereby carrying with it all the weight that an adjudication on the merits by this Court should carry with a District Court even in habeas corpus cases, or (2) that such a denial, as is true of denials in any other type of case, has no legal significance.
*238The first alternative — that in habeas corpus cases denial of certiorari has the effect of a disposition on the merits— would require a complete change in our consideration of such petitions by this Court. They would have to be treated as we now treat cases in which a petition for certiorari is granted so as to be heard on the merits. This would cast a new burden upon the Court full of the direst consequences to the proper disposition of the rest of the business of the Court. In addition, if denial of certiorari as though on the merits but without full dress consideration would, for all effective purposes, preclude resort to the District Courts on a claim that State custody is in violation of the Constitution, it would judicially nullify the habeas corpus jurisdiction which was first given to the lower federal courts by the Act of February 5, 1867, and has ever since been retained. On the second alternative, i. e., that denial of certiorari in habeas corpus cases is like any other denial of certiorari, the Court would announce that a meaningless step in this Court is an indispensable preliminary to going to the local District Court.
I agree with the opinion of Judge Phillips below that the case should be reversed and remanded to the District Court.
Mb. Justice Jackson, being of the opinion that this is the better of the two unsatisfactory courses open to us, joins this opinion.Judge Learned Hand has carried the requirement of eliciting a denial of a petition for certiorari in habeas corpus cases to its logical conclusion by giving such denial conclusive effect on the merits. Schechtman v. Foster, 172 F. 2d 339, 342-43. That is the logical conclusion of such a requirement — but it is the logic of unreality. For it flies in the face of the actualities of a denial. The considerations entering into such denials have necessitated the hitherto settled principle that denial carries no suggestion of adjudication on the merits.
The considerations that lead to an explicit statement that denial of certiorari is “without prejudice” to other avenues of relief because it does not bear on the merits of course carry no negative implication that in the absence of such a phrase the denial is with prejudice.
The Administrative Office of the United States Courts has compiled the following statistics:
Fiscal Years 1945-46 1946-47 1947-48 1948-49
Habeas corpus cases involving State prisoners disposed of by District Courts ................ 503 481 487 610
Cases in which petitioners were successful.......... 14 13 11 10
Percentage of cases in which petitioners were successful .................... 2.8% 2.7% 2.3% 1.6%
See Speck, Statistics on Federal Habeas Corpus, 10 Ohio State L. J. 337, 357 (1949).