Fay v. Noia, 372 U.S. 391 (1963)

Author: Justice Clark

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Fay v. Noia, 372 U.S. 391 (1963)

MR. JUSTICE CLARK, dissenting.

I agree fully with and join the opinion of my Brother HARLAN. Beyond question, the federal courts, until today, have had no power to release a prisoner in respondent Noia’s predicament, there being no basis for such power in either the Constitution or the statute. But the Court today, in releasing Noia, makes an "abrupt break" not only with the Constitution and the statute, but also with its past decisions, disrupting the delicate balance of federalism so foremost in the minds of the Founding Fathers and so uniquely important in the field of law enforcement. The short of it is that Noia’s incarceration rests entirely on an adequate and independent state ground -- namely, that he knowingly failed to perfect any appeal from his conviction of murder. While it may be that the Court’s "decision today swings open no prison gates," the Court must admit in all candor that it effectively swings closed the doors of Justice in the face of the State, since it certainly cannot prove its case 20 years after the fact. In view of this unfortunate turn of events, it appears important that we canvass the consequences of today’s action on state law enforcement.

First, there can be no question but that a rash of new applications from state prisoners will pour into the federal courts, and 98% of them will be frivolous, if history is any guide.{1} This influx will necessarily have an adverse effect upon the disposition of meritorious applications, for, as my Brother Jackson said, they will

be buried in a flood of worthless ones. He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search.

Brown v. Allen, 344 U.S. 443, 537 (1953) (concurring opinion). In fact, the courts are already swamped with applications which cannot, because of sheer numbers, be given more than cursory attention.{2}

Second, the effective administration of criminal justice in state courts receives a staggering blow. Habeas corpus is, in effect, substituted for appeal, seriously disturbing the orderly disposition of state prosecutions and jeopardizing the finality of state convictions in disregard of the States’ comprehensive procedural safeguards which, until today, have been respected by the federal courts. Essential to the administration of justice is the prompt enforcement of judicial decrees. After today, state judgments will be relegated to a judicial limbo, subject to federal collateral attack -- as here -- a score of years later despite a defendant’s willful failure to appeal.

The rights of the States to develop and enforce their own judicial procedures, consistent with the Fourteenth Amendment, have long been recognized as essential to the concept of a healthy federalism. Those rights are today attenuated, if not obliterated in the name of a victory for the "struggle for personal liberty." But the Constitution comprehends another struggle of equal importance, and places upon our shoulders the burden of maintaining it -- the struggle for law and order. I regret that the Court does not often recognize that each defeat in that struggle chips away inexorably at the base of that very personal liberty which it seeks to protect. One is reminded of the exclamation of Pyrrhus: "One more such victory . . and we are utterly undone."

These considerations have been of great concern to the Judicial Conference of the United States, which has frequently sought to have Congress repair the judicial loopholes in federal habeas corpus for state prisoners.{3} Likewise, the Conference of Chief Justices, at its annual meeting, has officially registered its dismay,{4} as has the National Association of Attorneys General.{5} Proposed legislation sponsored by one or more of these groups has passed in the House in three separate sessions, but inaction by the Senate caused each bill to die on the vine.{6} Those proposals apparently were sparked by our decision in Brown v. Allen, supra,{7} but the Court today goes far beyond that decision by negating is companion case, Daniels v. Allen, 344 U.S. 443, 482-487 (1953). While I have heretofore opposed such legislation, I must now admit that it may be the only alternative in restoring the writ of habeas corpus to its proper place in the judicial system. That place is one of great importance -- a remedy against illegal restraint -- but it is not a substitute for or an alternative to appeal, nor is it a burial ground for valid state procedures.

1. In the 12-year period from 1946 to 1957 the petitioners were successful in 1.4% of the cases. H.R.Rep. No. 548, 86th Cong., 1st Sess. 37.

2. The increase in number of habeas corpus applications filed in Federal District Courts by state prisoners is illustrated by the following figures:

1941. . . . . . 127

1945. . . . . . 536

1950. . . . . . 560

1955. . . . . . 660

1960. . . . . . 872

1961. . . . . . 906

1962. . . . . 1,232

1962 and 1959 Annual Reports, Administrative Office of U.S. Courts, pp. II-23 and 109, respectively.

3. See Report of the Committee on Habeas Corpus, Judicial Conference of the United States, March 14, 1959, reprinted in H.R.Rep. No. 548, 86th Cong., 1st Sess. 15-20.

4. See Report of the Habeas Corpus Committee of the Conference of Chief Justices, August 14, 1954, reprinted in H.R.Rep. No. 1293, 85th Cong., 2d Sess. 6-10. .

5. See Resolution of National Association of Attorneys General, reprinted in Hearings on H.R. 6742, H.R. 4958, H.R. 3216 and H.R. 2269 before Subcommittee 3 of the House Judiciary Committee, 86th Cong., 1st Sess. 44.

6. See H.R.Rep. No. 548, 86th Cong., 1st Sess. 4; H.R. 3216 (proposed by the Judicial Conference) was passed by the House, 105 Cong.Rec. 14637, and referred to the Senate Judiciary Committee, 105 Cong.Rec. 14689, but was not reported by that Committee. It was introduced again in the Eighty-seventh Congress as H.R. 466, and was referred to the House Judiciary Committee, 107 Cong.Rec. 45, but no further action is recorded.

7. See Report of the Committee on Habeas Corpus, note 3, supra, at 16.


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Chicago: Clark, "Clark, J., Dissenting," Fay v. Noia, 372 U.S. 391 (1963) in 372 U.S. 391 372 U.S. 446–372 U.S. 448. Original Sources, accessed April 19, 2018, http://www.originalsources.com/Document.aspx?DocID=DC3EQQY6Q8KNAEQ.

MLA: Clark. "Clark, J., Dissenting." Fay v. Noia, 372 U.S. 391 (1963), in 372 U.S. 391, pp. 372 U.S. 446–372 U.S. 448. Original Sources. 19 Apr. 2018. www.originalsources.com/Document.aspx?DocID=DC3EQQY6Q8KNAEQ.

Harvard: Clark, 'Clark, J., Dissenting' in Fay v. Noia, 372 U.S. 391 (1963). cited in 1963, 372 U.S. 391, pp.372 U.S. 446–372 U.S. 448. Original Sources, retrieved 19 April 2018, from http://www.originalsources.com/Document.aspx?DocID=DC3EQQY6Q8KNAEQ.