dissenting.
This case raises important questions about the authority of federal judges. In my opinion the District Judge properly exercised his statutory duty to consider the merits of the claims advanced by respondent that previously had been rejected by the Tennessee courts. The District Judge ex*539ceeded, however, what I regard as proper restraints on the scope of collateral review of state-court judgments. Ironically, instead of correcting his error, the Court today fashions a new rule of law that will merely delay the final disposition of this case and, as Justice Blackmun demonstrates, impose unnecessary burdens on both state and federal judges.
An adequate explanation of my disapproval of the Court’s adventure in unnecessary lawmaking requires some reference to the facts of this case and to my conception of the proper role of the writ of habeas corpus in the administration of justice in the United States.
I
Respondent was convicted in state court of rape and a crime against nature. The testimony of the victim was corroborated by another eyewitness who was present during the entire sadistic episode. The evidence of guilt is not merely sufficient; it is convincing. As is often the case in emotional, controverted, adversary proceedings,.trial error occurred. Two of those errors—a remark by the prosecutor1 and a limitation on defense counsel’s cross-examination *540of the victim2 — were recognized by the Tennessee Court of Criminal Appeals, but held to be harmless in the context of the entire case. Because the state appellate court considered and rejected these two errors as a basis for setting aside his conviction, respondent has exhausted his state remedies with respect to these two claims.
In his application in federal court for a writ of habeas corpus, respondent alleged that these trial errors violated his constitutional rights to confront the witnesses against him and to obtain a fair trial. In his petition, respondent also al*541leged that the prosecutor had impermissibly commented on his failure to testify3 and that the trial judge had improperly instructed the jury that “every witness is presumed to swear the truth.”4 Because these two additional claims had not been presented to the Tennessee Court of Criminal Appeals, the Federal District Judge concluded that he could “not consider them in the constitutional framework.” App. 88. He added, however, that “in assessing the atmosphere of the cause taken as a whole these items may be referred to collaterally.”5
In considering the significance of respondent’s two exhausted claims, the District Court thus evaluated them in the context of the entire trial record. That is precisely what the Tennessee Court of Criminal Appeals did in arriving at its conclusion that these claims, identified as error, were not sufficiently prejudicial to justify reversing the conviction and ordering a retrial.6 In considering whether the error in these two exhausted claims was sufficient to justify a grant of ha-*542beas corpus relief, the federal court — like the state court— had a duty to look at the context in which the error occurred to determine whether it was either aggravated or mitigated by other aspects of the proceeding.7 The state court and the federal court formed differing judgments based on that broad review. I happen to share the appraisal of the state court on the merits, but I believe that the procedure followed by the federal court was entirely correct.
The Court holds, however, that the District Court committed two procedural errors. “Unquestionably,” according to the Court, it was wrong for the District Court to consider the portions of the trial record described in the unexhausted claims in evaluating those claims that had been exhausted. Ante, at 519. More fundamentally, according to the Court, it was wrong for the District Court even to consider the merits of the exhausted claims because the prisoner had included unexhausted claims in his pleadings. Both of the Court’s holdings are unsatisfactory for the same basic reason: the Court assumes that the character of all claims alleged in ha-beas corpus petitions is the same. Under the Court’s analysis, any unexhausted claim asserted in a habeas corpus petition — no matter how frivolous — is sufficient to command the district judge to postpone relief on a meritorious exhausted claim, no matter how obvious and outrageous the constitutional violation may be.
*543In my opinion claims of constitutional error are not fungible. There are at least four types. The one most frequently encountered is a claim that attaches a constitutional label to a set of facts that does not disclose a violation of any constitutional right. In my opinion, each of the four claims asserted in this case falls in that category. The second class includes constitutional violations that are not of sufficient import in a particular case to justify reversal even on direct appeal, when the evidence is still fresh and a fair retrial could be promptly conducted. Chapman v. California, 386 U. S. 18, 22; Harrington v. California, 395 U. S. 250, 254. A third category includes errors that are important enough to require reversal on direct appeal but do not reveal the kind of fundamental unfairness to the accused that will support a collateral attack on a final judgment. See, e. g., Stone v. Powell, 428 U. S. 465.8 The fourth category includes those er*544rors that are so fundamental that they infect the validity of the underlying judgment itself, or the integrity of the process by which that judgment was obtained. This category cannot be defined precisely; concepts of “fundamental fairness” are not frozen in time. But the kind of error that falls in this category is best illustrated by recalling the classic grounds for the issuance of a writ of habeas corpus — that the proceeding was dominated by mob violence;9 that the prosecutor knowingly made use of perjured testimony;10 or that the conviction was based on a confession extorted from the defendant by brutal methods.11 Errors of this kind justify collateral relief no matter how long a judgment may have been final12 and even though they may not have been preserved properly in the original trial.13
*545In this case, I think it is clear that neither the exhausted claims nor the unexhausted claims describe any error demonstrating that respondent’s trial was fundamentally unfair. Since his lawyer found insufficient merit in the two unex-hausted claims to object to the error at trial or to raise the claims on direct appeal,141 would expect that the Tennessee courts will consider them to have been waived as a matter of state law; thereafter, under the teaching of cases such as Wainwright v. Sykes, 433 U. S. 72, they undoubtedly will not support federal relief. This case is thus destined to return to the Federal District Court and the Court of Appeals where, it is safe to predict, those courts will once again come to the conclusion that the writ should issue. The additional procedure that the Court requires before considering the merits will be totally unproductive.
If my appraisal of respondent’s exhausted claims is incorrect — if the trial actually was fundamentally unfair to the respondent — postponing relief until another round of review in the state and federal judicial systems has been completed is truly outrageous. The unnecessary delay will make it more difficult for the prosecutor to obtain a conviction on retrial if respondent is in fact guilty; if he is innocent, requiring him to languish in jail because he made a pleading error is callous indeed.
There are some situations in which a district judge should refuse to entertain a mixed petition until all of the prisoner’s claims have been exhausted. If the unexhausted claim appears to involve error of the most serious kind and if it is reasonably clear that the exhausted claims do not, addressing the merits of the exhausted claims will merely delay the ulti*546mate disposition of the case. Or if an evidentiary hearing is necessary to decide the merits of both the exhausted and un-exhausted claims, a procedure that enables all fact questions to be resolved in the same hearing should be followed. I therefore would allow district judges to exercise discretion to determine whether the presence of an unexhausted claim in a habeas corpus application makes it inappropriate to consider the merits of a properly pleaded exhausted claim. The inflexible, mechanical rule the Court adopts today arbitrarily denies district judges the kind of authority they need to administer their calendars effectively.15
W h — I
In recent years federal judges at times have lost sight of the true office of the great writ of habeas corpus. It is quite unlike the common-law writ of error that enabled a higher court to correct errors committed by a nisi prius tribunal in the trial of civil or criminal cases by ordering further proceedings whenever trial error was detected. The writ of ha-beas corpus is a fundamental guarantee of liberty.16
*547The fact that federal judges have at times construed their power to issue writs of habeas corpus as though it were tantamount to the authority of an appellate court considering a direct appeal from a trial court judgment has had two unfortunate consequences. First, it has encouraged prisoners to file an ever-increasing volume of federal applications that often amount to little more than a request for further review of asserted grounds for reversal that already have been adequately considered and rejected on direct review. Second, it has led this Court into the business of creating special procedural rules for dealing with this flood of litigation. The doctrine of nonretroactivity, the emerging “cause and prejudice” doctrine, and today’s “total exhaustion” rule are examples of judicial lawmaking that might well have been avoided by confining the availhbility of habeas corpus relief to cases that truly involve fundamental unfairness.
When that high standard is met, there should be no question about the retroactivity of the constitutional rule being enforced. Nor do I believe there is any need to fashion definitions of “cause” and “prejudice” to determine whether an error that was not preserved at trial or on direct appeal is subject to review in a collateral federal proceeding.17 The *548availability of habeas corpus relief should depend primarily on the character of the alleged constitutional violation and not on the procedural history underlying the claim.18
*549The “total exhaustion” rule the Court crafts today demeans the high office of the great writ. Perhaps a rule of this kind would be an appropriate response to a flood of litigation requesting review of minor disputes. An assumption that most of these petitions are groundless might be thought to justify technical pleading requirements that would provide a mechanism for reducing the sheer number of cases in which the merits must be considered. But the Court’s experience has taught us not only that most of these petitions lack merit, but also that there are cases in which serious injustice must *550be corrected by the issuance of the writ.19 In such cases, the statutory requirement that adequate state remedies be exhausted must, of course, be honored. When a person’s liberty is at stake, however, there surely is no justification for the creation of needless procedural hurdles.20
Procedural regularity is a matter of fundamental importance in the administration of justice. But procedural niceties that merely complicate and delay the resolution of disputes are another matter. In my opinion the federal habeas corpus statute should be construed to protect the former and, whenever possible, to avoid the latter.
I respectfully dissent.
At trial, the prosecutor questioned the eyewitness concerning “difficulties” that her sister had encountered while dating the respondent. In response to an objection to the materiality of the inquiry, the prosecutor explained, in the presence of the jury, that “I would think the defendant’s violent nature would be material to this case in the light of what the victim has testified to.” App. 17. The trial court excused the jury to determine the admissibility of the evidence; it ruled that the collateral inquiry was “too far removed to be material and relevant.” Id., at 22. After the jury had returned, the court instructed it to disregard the prosecutor’s remarks.
Respondent objected to the prosecutor’s statement on direct appeal. After reciting the challenged events, the Tennessee Court of Criminal Appeals recognized that “State’s counsel made some remarks in the presence of the jury that were overly zealous in support of this incompetent line of proof, and in a different case could constitute prejudicial error.” Lundy *540v. State, 521 S. W. 2d 591, 595 (1974). The court ruled, however, that “in the context of the undisputed facts of this case we hold any error to have been harmless beyond a reasonable doubt.” Ibid.
Defense counsel cross-examined the victim concerning her prior sexual activity. When the victim responded that she could not remember certain activity, counsel attempted to question her concerning statements that she apparently had made in an earlier interview with defense counsel. The prosecutor objected to this questioning on the ground that, during the interview, defense counsel had only disclosed that he was a lawyer involved in the case, and had not told the victim that he was counsel for the defendant. The trial court sustained the objection. The court permitted defense counsel to continue to question the victim concerning her prior sexual activity, but refused to permit him to refer to his earlier conversation with the victim. App. 13.
On appeal, respondent objected to the trial court’s ruling, and also claimed that the prosecutor had prejudiced him by suggesting, before the jury, that defense counsel had acted unethically in not specifically identifying his involvement in the case. The state appellate court rejected respondent’s claims, stating:
“We note that the trial judge, permitted cross-examination upon the same subject matter, but simply ruled out predicating the cross-examination questions upon the prior questions and answers. From the tender of proof in the record we do not believe that defendant was prejudiced by what we deem to have been too restrictive a ruling. Defense counsel was under no positive duty to affirmatively identify his role in the upcoming case before questioning a witness. He apparently made no misrepresentation, and was apparently seeking the truth. State’s counsel was unduly critical of defense counsel in indicating before the jury that State’s counsel should have been present at the interview, etc., but we hold this error to be harmless in the context of this case.” 521 S. W. 2d, at 596.
In his closing argument, the prosecutor stated:
“The only story we’ve heard about what happened from about 8:15 of the night of March 16th until about four o’clock in the morning of March 17th came from the State’s witnesses.” App. 27.
The judge instructed the jury:
“The jurors are the exclusive judges of the facts and the credibility of the witnesses. You are judges of the law under the direction of the court. If there are conflicts in the evidence, you must reconcile them, if you can, without hastily or rashly concluding that any witness has sworn falsely, for every witness is presumed to swear the truth.” Id,., at 31.
The court stated in full:
“Since grounds three and four have not been presented to the state court there has been no exhaustion of remedies as to these two. Thus this court will not consider them in the constitutional framework. However, in assessing the atmosphere of the cause taken as a whole these items may be referred to collaterally.” Id., at 88.
The appellate court found the prosecutor’s improper remark to have been harmless “in the context of the undisputed facts of this case”; the limitation of cross-examination harmless “in the context of this case.” See nn. 1, 2, supra.
“Each case must be scrutinized on its particular facts to determine whether a trial error is harmless error or prejudicial error when viewed in the light of the trial record as a whole, not whether each isolated incident viewed by itself constitutes reversible error.” United States v. Grunberger, 431 F. 2d 1062, 1069 (CA2 1970). Cf. United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 240 (“Of course, appeals to passion and prejudice may so poison the minds of jurors even in a strong case that an accused may be deprived of a fair trial. But each case necessarily turns on its own facts. And where, as here, the record convinces us that these statements were minor aberrations in a prolonged trial and not cumulative evidence of a proceeding dominated by passion and prejudice, reversal would not promote the ends of justice”).
In my opinion a claim generally belongs in this category if the purpose and significance of the constitutional rule is such that the Court enforces it prospectively but not retroactively, cf. Linkletter v. Walker, 381 U. S. 618, or if the probable significance of the claim is belied by the fact that otherwise competent defense counsel did not raise a timely objection, cf. Estelle v. Williams, 425 U. S. 501, 508, n. 3; Wainwright v. Sykes, 433 U. S. 72, 95-97 (Stevens, J., concurring).
I recognize the apparent incongruity in suggesting that there is a class of constitutional error — not constitutionally harmless — that does not render a criminal proceeding fundamentally unfair. It may be argued, with considerable force, that a rule of procedure that is not necessary to ensure fundamental fairness is not worthy of constitutional status. The fact that such a category of constitutional error exists, however, is demonstrated by the jurisprudence of this Court concerning the retroactive application of newly recognized constitutional rights. See, e. g., Linkletter v. Walker, supra (exclusionary rule of Mapp v. Ohio, 367 U. S. 643, not to be applied retroactively); Tehan v. United States ex rel. Shott, 382 U. S. 406 (rule of Griffin v. California, 380 U. S. 609, forbidding adverse comment on the defendant’s failure to testify); Johnson v. New Jersey, 384 U. S. 719 (guidelines for custodial interrogation established in Escobedo v. Illinois, 378 U. S. 478, and Miranda v. Arizona, 384 U. S. 436); Stovall v. Denno, 388 U. S. 293 (rules requiring presence of counsel at pretrial identification *544procedures); DeStefano v. Woods, 392 U. S. 631 (right to trial by jury in serious criminal cases and serious criminal contempts); Michigan v. Payne, 412 U. S. 47 (rule of North Carolina v. Pearce, 395 U. S. 711, requiring objective evidence on the record to justify greater sentence imposed after successful appeal). In ruling that a constitutional principle is not to be applied retroactively, the Court implicitly suggests that the right is not necessary to ensure the integrity of the underlying judgment; the Court certainly would not allow claims of such magnitude to remain unremedied.
It is possible that each of these decisions involves a general constitu-. tional principle that — although not necessary to ensure fundamental fairness at trial — is typically vindicated through trial remedies. See, e. g., Linkletter v. Walker, supra, at 639; Tehan v. United States ex rel. Shott, supra, at 415; but see Stovall v. Denno, supra, at 298; DeStefano v. Woods, supra, at 633. Whatever the correct explanation of these decisions may be, they demonstrate that the Court’s constitutional jurisprudence has expanded beyond the concept of ensuring fundamental fairness to the accused. My point here is simply that this expansion need not, and should not, be applied to collateral attacks on final judgments.
Moore v. Dempsey, 261 U. S. 86.
Mooney v. Holohan, 294 U. S. 103.
See Brown v. Mississippi, 297 U. S. 278 (direct appeal).
See, e. g., DeMeerleer v. Michigan, 329 U. S. 663; Marino v. Ragen, 332 U. S. 561.
See Wainwright v. Sykes, supra, at 95-96, n. 3 (Stevens, J., concurring). Justice Black noted in his opinion for the Court in Chapman v. *545California, 386 U. S. 18, 23, that "there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” In support of this statement he cited Payne v. Arkansas, 356 U. S. 560 (coerced confession); Gideon v. Wainwright, 372 U. S. 335 (right to counsel at trial); Turney v. Ohio, 273 U. S. 510 (impartial judge).
See App. 27, 35-38, 75, 88.
I do not believe that the Court’s “total exhaustion” requirement is simply a harmless rule of procedure whose prospective application will do nothing more than require district judges to instruct state prisoners to redraft their pleadings with black magic markers. If that is the full import of the decision today, the Court disparages federal judges; the Court implies that a federal judge will not obey the statutory command to grant relief on only exhausted claims if an unexhausted claim lurks somewhere in the prisoner’s pleadings. More importantly, the unnecessary delay that the Court causes in the disposition of this case will not be limited to the instant proceeding; a similar outcome will follow every time an appellate court disagrees with a district court’s judgment that a petition contains only exhausted claims. Given the ambiguity of many habeas corpus applications filed by pro se applicants, such differing appraisals should not be uncommon.
“The uniqueness of habeas corpus in the procedural armory of our law cannot be too often emphasized. It differs from all other remedies in that it is available to bring into question the legality of a person’s restraint and to require justification for such detention. Of course this does not mean *547that prison doors may readily be opened. It does mean that explanation may be exacted why they should remain closed. It is not the boasting of empty rhetoric that has treated the writ of habeas corpus as the basic safeguard of freedom in the Anglo-American world. ‘The great writ of habeas corpus has been for centuries esteemed the best and only sufficient defence of personal freedom.’ Mr. Chief Justice Chase, writing for the Court, in Ex parte Yerger, 8 Wall. 85, 95. Its history and function in our legal system and the unavailability of the writ in totalitarian societies are naturally enough regarded as one of the decisively differentiating factors between our democracy and totalitarian governments.” Brown v. Allen, 344 U. S. 443, 512 (opinion of Frankfurter, J.).
The failure of otherwise competent defense counsel to raise an objection at trial is often a reliable indication that the defendant was not denied fundamental fairness in the state-court proceedings. The person best qualified to recognize such error is normally a defendant’s own lawyer. Thus, in searching for fundamental unfairness in a trial record, I attach *548great importance to the character of the objection, if any, asserted by the defendant’s counsel. But if such error is manifest, I would not wrestle with terms such as “cause” and “prejudice” to determine whether habeas corpus relief should be granted. Thus, in Wainwright v. Sykes, 438 U. S., at 94, I wrote separately because a straightforward analysis of the record revealed the lack of merit in the prisoner’s claim. Had the record disclosed an error sufficiently serious to justify habeas corpus relief, I would not have joined a holding that an error of that character had been waived by a procedural default. As I pointed out in Wainwright, supra, at 95, even an express waiver by the defendant may be excused if the constitutional issue is sufficiently grave. That actually was the case in Fay v. Noia, 372 U. S. 391. There the Court held that habeas corpus relief was available notwithstanding the client’s participation in the waiver decision, and notwithstanding the fact that the decision was made on a tactical basis. See 433 U. S., at 95, n. 3.
It may be argued that limiting habeas corpus relief to claims involving the fundamental fairness of the underlying proceeding is no less “lawmaking” than engrafting a rule that a federal court may not entertain a habeas corpus application containing both exhausted and unexhausted claims. See Stone v. Powell, 428 U. S. 465, 522, 529 (Brennan, J., dissenting). It is interesting to note, however, that the Court unanimously has held that an error of law does not provide a basis for collateral' attack on a federal judgment under 28 U. S. C. §2255 unless the error constituted “‘a fundamental defect which inherently results in a complete miscarriage of justice,’” United States v. Timmreck, 441 U. S. 780, 783 (quoting Hill v. United States, 368 U. S. 424, 428); see also United States v. Addonizio, 442 U. S. 178, 185, even though the statute authorizes a federal prisoner to petition for relief whenever he is “in custody under sentence . . . imposed in violation of the Constitution or laws of the United States . . . .” 28 U. S. C. § 2255 (emphasis added). See Davis v. United States, 417 U. S. 333, 343-344.
Although the two situations are not identical, I believe that the reasons that persuaded the Court to limit errors of law cognizable under 28 U. S. C. § 2255 also apply to constitutional errors under 28 U. S. C. §2254. Section 2254 was enacted in 1948 as part of the revision and recodification of Title 28 of the United States Code. The Reviser’s Notes concerning § 2254 provide simply that “[t]his new section is declaratory of existing law *549as affirmed by the Supreme Court. (See Ex parte Hawk, 1944, . . . 321 U. S. 114.. . ).” H. R. Rep. No. 308, 80th Cong., 1st Sess., A180 (1947). In 1948, constitutional rules of procedure were relatively few, those that did exist generally were not applicable to the States, and the scope of ha-beas corpus relief was narrow. As late as the decision in Palko v. Connecticut, 302 U. S. 319, 328, constitutional claims applicable to the States were limited to those hardships “so acute and shocking that our polity will not endure it”; to those “ ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.’ ” Ibid. (quoting Hebert v. Louisiana, 272 U. S. 312, 316). In Schechtman v. Foster, 172 F. 2d 339, 341 (CA2 1949), cert. denied, 339 U. S. 924, Judge Learned Hand wrote for the court, in affirming a denial of a habeas corpus petition alleging intentional use of peijured testimony, that “[i]f the [state] judge who denied that [claim] did in fact consider the evidence as a whole, and if he decided that it was not, even prima facie, sufficient to make out a case of deliberate presentation by the prosecution of peijured testimony, [petitioner] was accorded the full measure of his constitutional rights. . . . [T]he District Court could not properly have issued the writ, no matter how erroneous the judge had thought the state judge’s conclusion that the evidence did not make out a prima facie case of the deliberate use of perjured testimony.”
This Court has long since rejected these restrictive notions of the constitutional protections that are available to state criminal defendants. Nevertheless, the point remains that the law today is very different from what it was when the current habeas corpus statute was enacted in 1948. That statute was amended in 1966, but the amendments merely added to, and did not modify, the existing statutory language. Respected scholars may argue forcefully to the contrary, but in my opinion a limitation of ha-beas corpus relief to instances of fundamental unfairness is consistent with the intent of the Congress that enacted § 2254 in 1948.
“The meritorious claims are few, but our procedures must ensure that those few claims are not stifled by undiscriminating generalities. The complexities of our federalism and the workings of a scheme of government involving the interplay of two governments, one of which is subject to limitations enforceable by the other, are not to be escaped by simple, rigid rules which, by avoiding some abuses, generate others.” Brown v. Allen, 344 U. S., at 498 (opinion of Frankfurter, J.).
“[W]e have consistently rejected interpretations of the habeas corpus statute that would suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements.” Hensley v. Municipal Court, 411 U. S. 345, 350. Cf. Marino v. Ragen, 332 U. S., at 563-570 (Rutledge, J., concurring).