with whom Justice Brennan and Justice Blackmun join, dissenting.
This Court construes Federal Rules of Appellate Procedure 23(c) and 23(d) to invest federal courts with broad discretion to keep a successful habeas petitioner in custody-pending appeal by the State. Because I believe that this novel approach allows federal courts to usurp the role of the state courts and undermine the purpose of habeas corpus proceedings, I dissent.
I
In our federal system, state courts are the appropriate forums for deciding questions of release for those charged with state offenses. The law that applies in these state proceedings is state bail law; in this case, state law grants respondent a right to be admitted to bail. Federal courts are not free to deprive respondent of that right, merely because the State’s representative asks them to. Federal Rules of Procedure cannot supplant either substantive rights guaranteed under the state law or the state processes developed to enforce those rights.
In holding that the federal courts can consider a prevailing habeas petitioner’s danger to the community, the majority rejects the Third Circuit’s well-reasoned decision to the contrary in Carter v. Rafferty, 781 F. 2d 993 (1986).1 In that case, a Federal District Court had granted a writ of habeas corpus to Rubin “Hurricane” Carter, who had previously been convicted of murder in a New Jersey state court, and ordered him released from state custody. The State maintained that Carter was a danger to the community and sought an order from the Court of Appeals, pursuant to Rule 23(d), to keep him in custody pending appeal. The court’s analysis of Rules 23(c) and 23(d) started with several general principles: first, there is a presumption that a successful habeas *781petitioner is entitled to release “immediately or, more commonly, after an appropriately circumscribed period to allow the state time to retry the accused.” 781 F. 2d, at 994. Second, a federal court has a strong interest in ensuring the appearance of the petitioner in subsequent federal proceedings or, if the decision is overturned on appeal, in returning the petitioner to state custody. Id., at 995. Third, neither federal nor state bail standards govern the release of state prisoners in federal habeas proceedings. Ibid.
Based on these principles and on the limited role of the federal courts in habeas corpus proceedings, namely, “to determine whether or not a constitutional infirmity infected the defendant’s trial,” id., at 996, the court concluded that release of a state prisoner who prevailed in the district court can “only be challenged ... if matters are put in issue relating to a petitioner’s ability to respond to federal process, or which in some other respect relate to the federal interest.” Id., at 996-997. Because the sole reason advanced for Carter’s incarceration was his alleged dangerousness, “a matter traditionally reserved to the state authorities to decide,” id., at 996, the court denied the State’s motion to revoke Carter’s release. It emphasized that its holding did not leave the State without recourse:
“In those instances where the state is of the view that a petitioner should not, for other compelling reasons, remain at large, it may proceed before the state courts. Since questions of dangerousness per se and related issues are traditionally state concerns and since the victorious habeas petitioner generally still faces trial on a state indictment, the appropriate forum before which state authorities may seek relief is the state court with responsibility for pending or future proceedings concerning the underlying indictment.” Id., at 997-998.
The decision in Carter was based on traditional notions of federalism and comity. The majority rejects this approach, deferring instead to the State’s interest as an adversary *782party in litigation. This peculiar brand of federalism finds no support in our prior cases, which reflect deference to state courts and state-court decisions, not litigants representing the State.2
Even more disturbing is the fact that the majority’s result has no apparent basis in state law. The Attorney General for the State of New Jersey has failed to cite a single state statute, state rule of court, or state decision that permits preventive detention pending trial or, for that matter, pending appeal of an order granting state postconviction relief. This is hardly surprising, since New Jersey law does not permit a state court to consider a defendant’s future dangerousness in determining whether to order pretrial confinement. State v. Johnson, 61 N. J. 351, 294 A. 2d 245 (1972). Except in capital cases, the State Constitution provides a right to bail. See N. J. Const., Art. I, ¶ 11; see also N. J. Rule Crim. Prac. 3:26 — 1(a); N. J. Rule App. Prac. 2:9-3(d). The State Attorney General has asked the federal courts to confine respondent on a basis that New Jersey courts hold invalid. Such a request is clearly not proper, much less deserving of deference.
The majority suggests that refusal to allow federal courts to consider danger to the community is somehow inconsistent with the practice of granting “conditional writs” of habeas corpus,3 in which a federal court orders that the State re*783lease the habeas petitioner within a specified period unless it retries him within that time. I do not believe that the traditional practice of issuing conditional writs is implicated by the decision in this case, which turns on fundamental principles of federal noninterference with the procedures for vindication of state-law rights in state courts. I note, however, that the practice is entirely consistent with the traditional concept of deference to state courts. By delaying issuance of the writ for a reasonable period, the federal court gives the State an opportunity to correct the constitutional defect itself through retrial in its own courts.
Under today’s decision a federal court can disregard both state law and state processes and authorize the indefinite detention of a successful habeas petitioner, without a full-blown adversary hearing, without appointing counsel, without providing immediate appellate review of its decision, and without satisfying any elevated burden of proof. Compare United States v. Salerno, ante, at 747, 751-752. The Court’s analysis in this area strikes me as result oriented, to say the least. Writing for the Court in Salerno, The Chief Justice chose to rely on the “numerous procedural safeguards” contained in the Bail Reform Act of 1984 to sustain the statute’s constitutionality. Ante, at 755. Recognizing the “individual’s strong interest in liberty,” Chief Justice Rehnquist stated:
*784“We do not minimize the importance and fundamental nature of this right. But, as our cases hold, this right may, in circumstances where the government’s interest is sufficiently weighty, be subordinated to the greater needs of society. We think that Congress’ careful delineation of the circumstances under which detention will be permitted satisfies this standard.” Ante, at 750-751 (emphasis added).
Yet in this case, where the same important and fundamental right is at stake, The Chief Justice, again writing for the Court, disregards the total absence of safeguards against erroneous or unnecessary deprivations of liberty.
The majority attempts to distinguish the successful habeas petitioner from the pretrial detainee in Salerno, observing that “a state habeas petitioner has been adjudged guilty beyond a reasonable doubt by a judge or jury, and this adjudication of guilt has been upheld by the appellate courts of the State.” Ante, at 779. The Court concedes, as it must, that this conviction has been found constitutionally infirm by a Federal District Court, but it notes that this “determination itself may be overturned on appeal before the State must retry the petitioner.” Ibid. This observation trivializes the District Court’s ruling that the State obtained its conviction in violation of respondent’s constitutional rights. Respondent’s conviction has been rendered null and void by a federal court of competent jurisdiction; it provides no basis for continuation of punishment or, as the majority so delicately puts it, “continuing custody and rehabilitation.” Ante, at 777. See Bell v. Wolfish, 441 U. S. 520, 535 (1979) (“[A] detainee may not be punished prior to an adjudication of guilt in accordance with due process of law”). The fact that the ruling might later be reversed does not diminish its current validity. We do not discount federal-court rulings simply because they “may be overturned on appeal.”
Granting broad discretion to deny release pending appeal undermines the central purpose of habeas corpus proceed*785ings: to provide “protection against illegal custody.” Brown v. Allen, 344 U. S. 443, 465 (1953); see also Preiser v. Rodriguez, 411 U. S. 475, 485-486 (1973). In this case, at the time the writ issued, respondent had spent five years in prison. He would have been eligible for parole in approximately eight months.4 Had the State obtained a stay of release, he undoubtedly would have to serve the entire sentence imposed pursuant to a conviction now determined to be unconstitutional. The writ of habeas corpus would have provided him no protection against illegal custody. If a prisoner’s confinement is to continue pending appeal, it should only be for reasons consistent with, or at least not in conflict with, the primary purpose of habeas corpus. These reasons cannot include continuation of punishment, as the majority implies. See ante, at 777.
Finally, continued reliance on the state conviction in this case ignores the nature of the constitutional defect identified by the District Court: the error in this case directly implicates the truth-finding process. Respondent has consistently maintained that this is a case of mistaken identity and that he was elsewhere on the night of the crime. As part of his defense, he sought to introduce the testimony of an alibi witness. Because his counsel failed to file a timely notice of alibi testimony, the trial court refused to allow him to do so. Even without the benefit of the witness’ testimony, the jury deliberated for 214 days before returning a guilty verdict. The District Court noted that an alibi witness would have strengthened respondent’s case and created reasonable doubt, 629 F. Supp. 511, 523 (NJ 1986); it concluded that the trial court’s refusal to allow respondent to introduce this testimony violated his Sixth Amendment right to present witnesses to establish a defense. Ibid.
*786I — I hH HH
Title 28 U. S. C. § 2243, cited by the majority, ante, at 775, authorizes federal courts to dispose of habeas corpus matters “as law and justice require.” The majority’s construction of Rules 23(c) and 23(d) is contrary to both law and justice. It is inconsistent with this Court’s longstanding notions of federalism and comity. It allows federal courts to substitute their own ad hoc standards for the rules and procedures the States have established for regulating the pretrial release of those accused of state-law offenses.
I therefore dissent.
For reasons on which I can only speculate, the State did not seek review of Carter in this Court.
See, e. g., Rose v. Lundy, 455 U. S. 509, 514 (1982) (requiring exhaustion of state-court remedies); Sumner v. Mata, 449 U. S. 539, 550 (1981) (strict construction of § 2254(d)’s presumption of correctness for determination of factual issues in state courts); Wainwright v. Sykes, 433 U. S. 72, 87 (1977) (doctrine of procedural bar ordinarily dictates that federal courts decline to consider claims not raised in state courts in the manner prescribed by state procedural rules).
The writ issued in this case was conditional. The District Court’s February 27,1986, order stated that a writ of habeas corpus would issue in 30 days unless the State afforded respondent a new trial within that period. App. 3; 629 F. Supp. 511, 526 (NJ 1986). The day before the 30-day period was due to expire, the State applied to the District Court for a stay of *783release, App. 6, but the application was denied. Id., at 17-18. The State waited two months before moving for a stay in the Court of Appeals, id., at 19, apparently because respondent was incarcerated on another charge until May 20, 1986.
Had the State moved promptly for expedited consideration of its appeal of the District Court’s initial order, it seems likely that the merits of the appeal could have been resolved in the three months before respondent would have been released, thus obviating any need for a stay and for this litigation.
Letter from Allan J. Nodes, Deputy Chief, Appellate Section, N. J. Dept. of Law and Public Safety, Division of Criminal Justice, dated Apr. 6, 1987.