dissenting.
Although I agree that federal consideration of petitioner’s constitutional claims is not foreclosed by the decision of the Supreme Court of Indiana, I think that the Court’s disposition of the matter, which contemplates the overturning of petitioner’s conviction without the necessity of further proceedings in the state courts if his ^constitutional contentions are ultimately federally sustained, rests upon an impermissible interpretation of the Opinion of the State Supreme Court (236 Ind. 384, 139 N. E. 2d 898), and that a different procedural course is required if state and federal concerns in this situation are to be kept.jp- proper balance.
It is clear that the federal courts would be without jurisdiction to consider petitioner’s constitutional claims on hajpeas corpus if the Supreme Court of Indiana rejected those claims because, irrespective of their possible merit, they were not presented to it in compliance with the' State’s “adequate and easily-compliéd-with *413method of appeal.” Brown v. Allen, 344 U. S. 443, 485. The first question that concerns us, therefore, is whether the state court’s judgment affirming the conviction rests independently on such a state ground.
At the outset we must keep in mind several aspects of Indiana criminal procedure, and the manner in which petitioner’s attorneys presented his appeal to the Indiana Supreme Court, all as noted in this. Court’s opinion. The procedural aspects are (1) that no appeal lies from an order denying a new trial as such, that kind of an Order being reviewable only in connection with an appeal from the final judgment in the case; (2) an.escapee, such as this petitioner was, has no standing to make a motion for a new trial, at least if he is at large throughout the period available for the making of such a motion, 236 Ind., at 386-392, 139 N-. E. 2d, at 898-902; and (3) an appellant must perfect his appeal by filing assignments of error and a transcript of the record. In the taking of petitioner’s appeal from the judgment of conviction the only assignment of error filed related to the trial court’s denial of the mqtion for a new trial. While that assignment was supported by a detailed specification of petitioner’s con-stitiitional claims, none of such claims was independently filed as an assignment of error. .
Had the State Supreme Court declined without more to reach petitioner’s constitutional contentions because (1) his motion for a new trial had been forfeited by reason of escape, and (2) such claims had not independently been assigned as error, the federal courts would not; as has been said, be entitled to consider them. The difficulty here is that the state court did not stop at this juncture, but, after pointing out that • petitioner had assigned as error only the denial of his motion for a new trial and holding that such denial was not error because of petitioner’s escape, went on to consider and find withoüt merit petitioner’s constitutional claims.
*414This Court infers from the fact that the Indiana court considered petitioner’s constitutional contentions that its affirmance of his conviction rested entirely on the denial of those claims. It reads the state court’s opinion as saying that although that court could under state law properly rest its affirmance of the conviction on petitioner’s failure to assign as error anything but the denial of his motion for a new trial, which, as we have seen, was held to have been properly denied under the State’s “escapee” rule, it would not do so but would treat petitioner’s constitutional claims as if they had themselves been pre: sen ted as assignments of error, rather than only as grounds supporting the error assigned to the trial court’s order denying a new trial. I think this reading of the state court’s opinion defies its plain language.
•The state court devotes no less than seven pages of its nine-page opinion to an exhaustive discussion of the rule of state law which requires denial of a new trial motion made by an escapee still at large. At the close of this discussion it says:
“The action upon which the appellant predicates error in this appeal is based solely upon the overruling of a motion for a new trial. There is no other error claimed. Since appellant had no standing in court at the time he filed a motion for a new trial the situation is the same as if no motion for a new trial had been filed, or he had voluntarily permitted the time to expire for such filing. His letter reveals he was aware of this right, and had talked with his attorneys about a new trial and an appeal.
“No error could have been committed in overruling the motion for a new trial under the circumstances
“Our decision on the point under examination makes it unnecessary' for us to consider the other *415contentions of the appellant; however, because of the finality of the sentence in the case we have reviewed the evidence to satisfy ourselves that there is no miscarriage of justice in this case. . . .” 236 Ind., at 392-393, 139 N. E. 2d, at 901-902.
The opinion then reviews the petitioner’s constitutional contentions, and concludes with the statement:
“It does not appear from the record and argument had, that the appellant was denied due process of law under the Fourteenth Amendment, or due course of law under the Bill of Rights, or that there was any miscarriage of justice when he was convicted and given the death penalty.” 236 Ind., at 394, 139 N. E. 2d; at 902.
This Court’s reading of the Indiana opinion makes the exhaustive discussion in that opinion of the status of an escapee under Indiana law entirely unnecessary and meaningless. While I agree with the Court that the Indiana Supreme Court reached a “considered conclusion that the conviction resulting in the death sentence was not obtained in disregard of the protections secured to the petitioner by the Constitution of the United States,” it is fully apparent that the state court ultimately rested its judgment of affirmance squarely on the ground that the petitioner’s sole assignment of error, the denial of his motion for a new trial, was without merit because he was an escapee when that motion was made, and when it was denied. The fact that the Indiana court also reached a conclusion that petitioner’s claims of constitutional deprivation were not made out does not entitle us to ignore the fact that it was on a point, of state procedure that it ultimately rested.
Nevertheless, I do not think that in the circumstances of this case the State’s contention that the federal courts *416lack jurisdiction to deal with petitioner’s constitutional points can be accepted. The State has conceded that its Supreme Court was empowered in its discretion to disregard the procedural defects in petitioner’s appeal. That being so, the state court’s constitutional discussion takes on, for me, a vital significance in connection with its procedural holding under state law, namely, that affirmance of petitioner’s conviction was rested on this state ground only after the Indiana court, displaying a meticulous concern that state procedural requirements should not be allowed to work a “miscarriage of justice,” particularly in view of “the finality of the sentence,” had satisfied itself that petitioner’s constitutional contentions were untenable. Such a reading of the state court’s opinion is required to give meaning to its constitutional discussion, for if petitioner’s procedural failures inexorably prevented the state appellate court from reaching his constitutional claims their discussion in its opinion would appear to have been wholly pointless. At the same time this vie w of the opinion deprives Indiana’s procedural holding of vitality as a bar to consideration of petitioner’s constitutional claims by the'federal courts on habeas corpus, for the decision as to those claims was inextricably a part of that holding. I therefore' think that the two courts below should have dealt with the merits of petitioner’s constitutional points.
However, even were the federal courts ultimately to hold that petitioner was denied due process, it would not be within their province thereupon to order his release. At that point it would unmistakably be the prerogative of the Indiana Supreme Court to decide whether on different postulates of federal constitutional law it would nevertheless hold that under Indiana law petitioner would still be barred from being heard because of his failure to comply with the State’s procedural rules. For just as it *417is the federal courts’ responsibility and duty finally to decide the federal questions presented in this case, it belongs to the Indiana Supreme Court finally to decide the state questions presented in the light of federal decision as to the commands of the Fourteenth Amendment. Hence if, petitioner ultimately prevails on his constitutional claims, further proceedings in the state courts will be unavoidable.
In this state of affairs I think our proper course should be to proceed ourselves to a decision of the constitutional issues, rather than remand the case to the Court of Appeals. If the judgment of the Indiana Supreme Court is potentially going to be called into question because of a federal court’s conclusion'that it is based in part on .erroneous constitutional postulates, I believe that Indiana is entitled to have that conclusion authoritatively pronounced by this Court. Moreover, the District Court, and. one judge of the Court of Appeals, have already given clear (and conflicting) statements of their views as to the merits of ;sueh issues. The questions have been exhaustively briefed and fully argued before us. And this course would avoid-further protracted delay.
Were we to .conclude that the Indiana Supreme. Court' was correct in its premise that petitioner’s constitutional points áre without merit, the judgment of the Court of Appeals dismissing the writ of habeas1 corpus should of course be affirmed. If, on the other hand, ,we should decide that petitioner was in fact deprived of due process at trial, I would hold the case and give petitioner a reasonable opportunity to seek; through such avenues as may be open to him, a determination by the Indiana Supreme Court as to whether, in light of such a decision, it would nevertheless hold that petitioner’s failure-to comply with the State’s procedural rules required affirmance of his conviction. Cf. Patterson v. Alabama, 294 U. S. 600; *418Williams v. Georgia, 349 U. S. 375. Should no such avenues be open to petitioner in Indiana, it would then be time enough to decide what final disposition should be made of this case. •
For these reasons I concur in the view that federal consideration of petitioner’s constitutional claims is not precluded, and in all other respects dissent from the Court’s opinion.