Brown v. Allen, 344 U.S. 443 (1953)

Author: Justice Jackson

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Brown v. Allen, 344 U.S. 443 (1953)

MR. JUSTICE JACKSON, concurring in the result.

Controversy as to the undiscriminating use of the writ of habeas corpus by federal judges to set aside state court convictions is traceable to three principal causes: (1) this Court’s use of the generality of the Fourteenth Amendment to subject state courts to increasing federal control, especially in the criminal law field; (2) ad hoc determination of due process of law issues by personal notions of justice, instead of by known rules of law; and (3) the breakdown of procedural safeguards against abuse of the writ.

1. In 1867, Congress authorized federal courts to issue writs of habeas corpus to prisoners "in custody in violation of the Constitution or laws or treaties of the United States."{1} At that time, the writ was not available here nor in England to challenge any sentence imposed by a court of competent jurisdiction.{2} The historic purpose of the writ has been to relieve detention by executive authorities without judicial trial.{3} It might have been expected that, if Congress intended a reversal of this traditional concept of habeas corpus, it would have said so. However, this one sentence in the Act eventually was construed as authority for federal judges to entertain collateral attacks on state court criminal judgments.{4} Whatever its justification, it created potentialities for conflict certain to lead to the antagonisms we have now, unless the power given to federal judges were responsibly used according to lawyerly procedures and with genuine respect for state court fact finding.

But, once established, this jurisdiction obviously would grow with each expansion of the substantive grounds for habeas corpus. The generalities of the Fourteenth Amendment are so indeterminate as to what state actions are forbidden that this Court has found it a ready instrument, in one field or another, to magnify federal, and incidentally its own, authority over the states. The expansion now has reached a point where any state court conviction, disapproved by a majority of this Court, thereby becomes unconstitutional and subject to nullification by habeas corpus.{5}

This might not be so demoralizing if state judges could anticipate, and so comply with, this Court’s due process requirements or ascertain any standards to which this Court will adhere in prescribing them. But they cannot. Of course, considerable uncertainty is inherent in decisional law which, in changing times, purports to interpret implications of constitutional provisions so cryptic and vagrant. How much obscurity is inevitable will be a matter of opinion. However, in considering a remedy for habeas corpus problems, it is prudent to assume that the scope and reach of the Fourteenth Amendment will continue to be unknown and unknowable, that what seems established by one decision is apt to be unsettled by another, and that its interpretation will be more or less swayed by contemporary intellectual fashions and political currents.

We may look upon this unstable prospect complacently, but state judges cannot. They are not only being gradually subordinated to the federal judiciary but federal courts have declared that state judicial and other officers are personally liable to federal prosecution and to civil suit by convicts if they fail to carry out this Court’s constitutional doctrines.{6}

2. Rightly or wrongly, the belief is widely held by the practicing profession that this Court no longer respects impersonal rules of law, but is guided in these matters by personal impressions which from time to time may be shared by a majority of Justices. Whatever has been intended, this Court also has generated an impression in much of the judiciary that regard for precedents and authorities is obsolete, that words no longer mean what they have always meant to the profession, that the law knows no fixed principles.

A manifestation of this is seen in the diminishing respect shown for state court adjudications of fact. Of course, this Court never has considered itself foreclosed by a state court’s decision as to the facts when that determination results in alleged denial of a federal right. But captious use of this power was restrained by observance of a rule, elementary in all appellate procedure, that the findings of fact on a trial are to be accepted by an appellate court in absence of clear showing of error. The trial court, seeing the demeanor of witnesses, hearing the parties, giving to each case far more time than an appellate court can give, is in a better position to unravel disputes of fact than is an appellate court on a printed transcript. Recent decisions avow no candid alteration of these rules, but revision of state fact finding has grown by emphasis, and respect for it has withered by disregard.{7}

3. The fact that the substantive law of due process is and probably must remain so vague and unsettled as to invite farfetched or borderline petitions makes it important to adhere to procedures which enable courts readily to distinguish a probable constitutional grievance from a convict’s mere gamble on persuading some indulgent judge to let him out of jail. Instead, this Court has sanctioned progressive trivialization of the writ until floods of stale, frivolous and repetitious petitions inundate the docket of the lower courts and swell our own.{8} Judged by our own disposition of habeas corpus matters, they have, as a class, become peculiarly undeserving.{9} It must prejudice the occasional meritorious application to 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. Nor is it any answer to say that few of these petitions in any court really result in the discharge of the petitioner.{10} That is the condemnation of the procedure which has encouraged frivolous cases. In this multiplicity of worthless cases, states are compelled to default or to defend the integrity of their judges and their official records, sometimes concerning trials or pleas that were closed many years ago.{11} State Attorneys General recently have come habitually to ignore these proceedings, responding only when specially requested and sometimes not then. Some state courts have wearied of our repeated demands upon them, and have declined to further elucidate grounds for their decisions.{12} The assembled Chief Justices of the highest courts of the states have taken the unusual step of condemning the present practice by resolution.{13}

It cannot be denied that the trend of our decisions is to abandon rules of pleading or procedure which would protect the writ against abuse. Once upon a time, the writ could not be substituted for appeal or other reviewing process, but challenged only the legal competence or jurisdiction of the committing court.{14} We have so departed from this principle that the profession now believes that the issues we actually consider on a federal prisoner’s habeas corpus are substantially the same as would be considered on appeal.{15}

Conflict with state courts is the inevitable result of giving the convict a virtual new trial before a federal court sitting without a jury. Whenever decisions of one court are reviewed by another, a percentage of them are reversed. That reflects a difference in outlook normally found between personnel comprising different courts. However, reversal by a higher court is not proof that justice is thereby better done. There is no doubt that, if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.

As to the pleading requirements in habeas corpus, what has happened may best be learned by comparison of the meticulously pleaded facts and circumstances relied upon by this Court’s opinion in Moore v. Dempsey, 261 U.S. 86 (1923), and in Mooney v. Holohan, 294 U.S. 103 (1935), with condonation of their absence in Price v. Johnston, 334 U.S. 266 (1948). It really has become necessary to plead nothing more than that the prisoner is in jail, wants to get out, and thinks it is illegal to hold him.{16} If he fails, he may make the same plea over and over again.{17}

Since the Constitution and laws made pursuant to it are the supreme law, and since the supremacy and uniformity of federal law are attainable only by a centralized source of authority, denial by a state of a claimed federal right must give some access to the federal judicial system. But federal interference with state administration of its criminal law should not be premature, and should not occur where it is not needed. Therefore, we have ruled that a state convict must exhaust all remedies which the state affords for his alleged grievance before he can take it to any federal court by habeas corpus.

The states all allow some appeal from a judgment of conviction which permits review of any question of law, state or federal, raised upon the record. No state is obliged to furnish multiple remedies for the same grievance. Most states, and with good reason, will not suffer a collateral attack such as habeas corpus to be used as a substitute for or duplication of the appeal. A state properly may deny habeas corpus to raise either state or federal issues that were or could have been considered on appeal. Such restriction by the state should be respected by federal courts.

Assuming that a federal question not reachable on appeal is properly presented by habeas corpus and decided adversely by the highest competent court of the state, should the prisoner then come to this Court and ask us to review the record by certiorari or should he go to the district court and institute a new federal habeas corpus proceeding? Darr v. Burford, 339 U.S. 200, as I understand it, held that, in these circumstances, the prisoner must apply to this Court for certiorari before he can go to any other federal court, because only by so doing could he exhaust his state remedy. Whatever one may think of that result, it does not seem logical to support it by asserting that this Court’s certiorari power is any part of a state’s remedy. An authority outside of the state imposes a duty upon the state to turn the case over to it, in a proceeding which makes the state virtually a defendant. To say that our command to certify the case to us is a state remedy is to indulge in fiction, and the difficulty with fictions is that those they are most apt to mislead are those who proclaim them.

But now it is proposed to neutralize the artificiality of the process and counterbalance the fiction that our certiorari is a state remedy by holding that this step which the prisoner must take means nothing to him or the state when it fails, as in most cases it does.

The Court is not quite of one mind on the subject. Some say denial means nothing, others say it means nothing much. Realistically, the first position is untenable and the second is unintelligible. How can we say that the prisoner must present his case to us and at the same time say that what we do with it means nothing to anybody. We might conceivably take either position but not, rationally, both, for the two will not only burden our own docket and harass the state authorities. but it makes a prisoner’s legitimate quest for federal justice an endurance contest.

True, neither those outside of the Court, nor on many occasions those inside of it, know just what reasons led six Justices to withhold consent to a certiorari. But all know that a majority, larger than can be mustered for a good many decisions, has found reason for not reviewing the case here. Because no one knows all that a denial means, does it mean that it means nothing? Perhaps the profession could accept denial as meaningless before the custom was introduced of noting dissents from them. Lawyers and lower judges will not readily believe that Justices of this Court are taking the trouble to signal a meaningless division of opinion about a meaningless act.{18} It is just one of the facts of life that today every lower court does attach importance to denials and to presence or absence of dissents from denials, as judicial opinions and lawyers’ arguments show.

The fatal sentence that in real life writes finis to many causes cannot, in legal theory, be a complete blank. I can see order in the confusion as to its meaning only by distinguishing its significance under the doctrine of stare decisis from its effect under the doctrine of res judicata. I agree that, as stare decisis, denial of certiorari should be given no significance whatever. It creates no precedent and approves no statement of principle entitled to weight in any other case. But, for the case in which certiorari is denied, its minimum meaning is that this Court allows the judgment below to stand with whatever consequences it may have upon the litigants involved under the doctrine of res judicata as applied either by state or federal courts. A civil or criminal judgment usually becomes res judicata in the sense that it is binding and conclusive even if new facts are discovered and even if a new theory of law were thought up, except for some provision for granting a new trial, which usually is discretionary with the trial court and limited in time.

It is sometimes said that res judicata has no application whatever in habeas corpus cases, and surely it does not apply with all of its conventional severity. Habeas corpus differs from the ordinary judgment in that, although an adjudication has become final, the application is renewable, at least if new evidence and material is discovered or if, perhaps as the result of a new decision, a new law becomes applicable to the case. This is quite proper so long as its issues relate to jurisdiction. But call it res judicata or what one will, courts ought not to be obliged to allow a convict to litigate again and again exactly the same question on the same evidence. Nor is there any good reason why an identical contention rejected by a higher court should be reviewed on the same facts in a lower one.

The chief objection to giving this limited finality to our denial of certiorari is that we pass upon these writs of habeas corpus so casually or upon grounds so unrelated to their merits that our decision should not have the weight of finality. No very close personal consideration can be given by each Justice to such a multiplicity of these petitions as we have had and, as a class, they are so frivolous, so meaningless, and often so unintelligible that this worthlessness of the class discredits each individual application. If this deluge were reduced by observance of procedural safeguards to manageable proportions so that it would be possible to examine the cases with some care and to hear those that show merit, I think this objection would largely disappear. The fact is that superficial consideration of these cases is the inevitable result of depreciation of the writ. The writ has no enemies so deadly as those who sanction the abuse of it, whatever their intent.

If a state is really obtaining conviction by laws or procedures which violate the Federal Constitution, it is always a serious wrong not only to a particular convict, but to federal law. It is not probable that six Justices would pass up a case which intelligibly presented this situation. But an examination of these petitions will show that few of them, tested by any rational rules of pleading, actually raise any question of law on which the state court has differed from the understanding prevailing in this Court. The point on which we are urged to overrule state courts almost invariably is in their appraisal of facts. For example, the jury, the trial judge, and one or more appellate courts below have held that conflicting evidence proves a confession was voluntary; the prisoner wants us to say the evidence proves it was coerced. The court below found that the prisoner waived counsel and voluntarily pleaded guilty; he wants us to find that he did not. The jury and the trial judge below believed one set of witnesses whose testimony showed his guilt; he wants us to believe the other, and to hold that he has been convicted by perjury. That is the type of factual issue upon which this Court and other federal courts are asked to intervene and upset state court convictions. There are plenty of good reasons why we should rarely do that, and even better reasons why the district court should not undertake to do it after we have declined to.

My conclusion is that whether or not this Court has denied certiorari from a state court’s judgment in a habeas corpus proceeding, no lower federal court should entertain a petition except on the following conditions: (1) that the petition raises a jurisdictional question involving federal law on which the state law allowed no access to its courts, either by habeas corpus or appeal from the conviction and that he therefore has no state remedy; or (2) that the petition shows that, although the law allows a remedy, he was actually improperly obstructed from making a record upon which the question could be presented, so that his remedy by way of ultimate application to this Court for certiorari has been frustrated. There may be circumstances so extraordinary that I do not now think of them which would justify a departure from this rule, but the run-of-the-mill case certainly does not.

Whether one will agree with this general proposition will depend, I suppose, on the latitude he thinks federal courts should exercise in retrying de novo state court criminal issues. If the federal courts are to test a state court’s decision by hearing new evidence in a new proceeding, the pretense of exhaustion of state remedies is a sham, for the state courts could not have given a remedy on evidence which they had no chance to hear. I cannot see why federal courts should hear evidence that was not presented to the state court unless the prisoner has been prevented from making a record of his grievance, with the result that there is no record of it to bring here on certiorari. Such circumstances would seem to call for an original remedy in the district courts, which would be in a position to take evidence and make the record on which we ultimately must pass if there develops a conflict of law between a federal and state court.

If this Court were willing to adopt this doctrine of federal self-restraint, it could settle some procedures, rules of pleading and practices which would weed out the abuses and frivolous causes and identify the worthy ones. I know the difficulty of formulating practice rules and their pitfalls. Nor do I underestimate the argument that the writ often is petitioned for by prisoners without counsel, and that they should not be held to the artificialities in pleading that we expect in lawyers. But I know of no way that we can have equal justice under law except we have some law. I suggest some general principles which, if adhered to, would reduce the number of frivolous petitions, make decision upon them possible at an earlier time, and alleviate some of the irritation that is developing over ill-considered federal use of the writ to slap down state courts.

First, habeas corpus shall not (in absence of state law to the contrary) raise any question which was, or could have been, decided by appeal or other procedure for review of conviction. In the absence of showing to the contrary, habeas corpus will be deemed to lie only for defects not disclosed on the record, going to the power, legal competence or jurisdiction of the committing state court.

Second, every petition to a federal court is required, and those to a state court may be required by state law, to contain a plain but full statement of the facts on which it is based. Unless it states facts which, if proved, would warrant relief, the applicant is not entitled as of right to a hearing. Technical forms or artificialities of pleading will not be required.

Presumably, a federal court will not release a convict until he proves facts which show invalidity of his conviction. If proof is to be required, it is no hardship to require a simple statement of what it will be. A petitioner should be given benefit of liberal construction, of all usual privileges of amendment, and, if the court finds a probably worthy case, appointment of counsel to aid in amending the petition and presenting the case.

Third, petitions to federal courts are required, and those to state courts may be required, to set forth every previous application to any court for relief on any grounds. If the current petition is made upon the same grounds as an earlier one, it should state fully any evidence now available in its support that was not offered before and explain failure to present it. On the jurisdictional questions appropriate for habeas corpus, the petitioner may not be barred from proof by newly discovered evidence, but it is not asking too much that his petition disclose that he has it and a basis for appraising its relevance and effect. He should not be precluded from raising new grounds of unconstitutionality in a later petition, especially in view of the unsettled character of our constitutional doctrines of due process. But the facts that make the new grounds applicable should appear. If federal relief is sought on the grounds that state law affords no remedy, or his resort thereto has been obstructed and he has been unable to present his case to a state court, the facts relied on should be clearly and fully set forth.

Much probably may be said in criticism of my statement of these principles, but nothing, I am convinced, against their historical authenticity as part of the traditional law of habeas corpus or against their application now to stop abuses so grave that they foreshadow legislative restriction of the writ. They do not foreclose worthy causes, but earmark them for the serious treatment they deserve. They will not even wholly eliminate frivolous petitions, but will discourage them by exposing their frivolity at an earlier stage.

Society has no interest in maintaining an unconstitutional conviction and every interest in preserving the writ of habeas corpus to nullify them when they occur. But the Constitution does not prevent the state courts from determining the facts in criminal cases. It does not make it unconstitutional for them to have a different opinion than a federal judge about the weight to be given to evidence. My votes in the cases under review and on other petitions and reviews will be guided as nearly as I can by the principles set forth herein.

I concur in the result announced by MR. JUSTICE REED in these three cases.

1. 28 U.S.C. § 2241(c)(3).

2. Ex parte Ferguson, 1 K.B. 176, 179 (1917); Ex parte Lees, El.Bl.&El. 828, 120 E.R. 718; In re Dunn, 5 C.B. 215, 136 E.R. 859; Habeas Corpus Act of 1679, 31 Car. II, c. 2; Ex parte Watkins, 3 Pet. 193, 202.

3. Darnel’s Case, 3 How.St.Tr. 1 (1627). For this purpose, the writ has not been conspicuously successful in the United States. I have reviewed its failures, especially in wartimes, in Wartime Security and Liberty under Law, 1 Buff.L.R. 103; United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537.

4. See the equivocal discussion of the question in Frank v. Magnum, 237 U.S. 309, 326-332, and the more explicit assumption of the dissent, id. at 348. An earlier case, Ex parte Royall, 117 U.S. 241, contained a dictum to the effect that legislative jurisdiction -- the validity of the statute under which conviction was had in the state court -- could be challenged on habeas corpus in the federal courts. While this represents a certain expansion of traditional notions of jurisdiction in the judicial sense, it by no means supports the broad reach given to federal habeas corpus by recent cases. See also Moore v. Dempsey, 261 U.S. 86; Mooney v. Holohan, 294 U.S. 103.

5. An idea of the uncertainty and diversity of views in this field may be gleaned from a comparison of Rochin v. People of California, 342 U.S. 165, with Wolf v. Colorado, 338 U.S. 25, and Adamson v. California, 332 U.S. 46.

6. This Court’s decision in Screws v. United States, 325 U.S. 91, as the dissenters anticipated, has led a Federal Court of Appeals to hold that federal law enforced in federal courts imposes personal liability upon state judicial officers, though that court admits that "The result is of fateful portent to the judiciary of the several states." Picking v. Pennsylvania R. Co., 151 F.2d 240, 250. Contrast to this the absolute immunity from suit enjoyed by federal officials, even in administrative capacities. Gregoire v. Biddle, 177 F.2d 579. While the Screws decision held out promise of protection for state officials by requiring that any denial of constitutional right must be proved to be wilful in the sense of knowing and intentional, that protection has since been withdrawn. Another Court of Appeals upheld a conviction based on a charge that willfulness and intent are "presumed and inferred from the result of the action." 189 F.2d 711, 714. This Court, against my written dissent calling attention to its effect, refused review. Koehler v. United States, 342 U.S. 852.

7. See, e.g., United States v. Oregon State Medical Society, 343 U.S. 326, for a recent example of the application of the presumption in favor of a lower federal court’s finding of fact. Compare Watts v. Indiana, 338 U.S. 49; and Malinski v. New York, 324 U.S. 401, with the above for illustrations of cases in which this salutary presumption in favor of state court findings was disregarded in fact if not in theory.

8. There were filed in federal district courts during 1941 one hundred twenty-seven petitions for habeas corpus challenging state convictions; in 1943 there were two hundred sixty-nine; in 1948 five hundred forty-three; in 1952 five hundred forty-one. Speck, Statistics on Federal Habeas Corpus, 10 Ohio St.L.J. 337, shows that, during the period from 1943 through 1945, there were a high number of petitions filed by those convicts who had filed at least one such petition in federal court before. In federal courts in New Hampshire and South Dakota, the percentage of the total petitions made up by repeaters was 50%. The percentages for the larger states on which statistics were then available are as follows: California, 12%; Illinois, 19%; Massachusetts, 20%; , Missouri, 21%: New Jersey, 17%; New York, 18%; Pennsylvania, 22%; Texas, 25%. These figures show an unnecessary burden on the federal courts by quantitative as well as dramatic tests.

9. See Speck, supra, Table 3.

10. Statistics of the administrative Office of the United States Courts for the period 1946-1952 show that, in 1946, 2.8% of the petitioners were successful; in 1952, 1.8% were successful.

11. Pages full of numbers fail to indicate what the states must contend with as vividly as the history of particular litigation. The Wells litigation in California is an object lesson in conflict. Wells was sentenced to death by the California trial court, and this judgment was affirmed by the Supreme Court of California in an opinion which gave extended consideration to the appellant’s contentions. People v. Wells, 33 Cal.2d 330, 202 P.2d 53. This Court denied certiorari, Wells v. California, 338 U.S. 836. Wells, without seeking habeas corpus in state court, then petitioned a federal district judge in California for habeas corpus. That judge took the unusual step of passing on the merits of the case in spite of the fact that state remedies had not been exhausted and the prisoner had to be remitted to the state courts. The district judge held on the merits that the California courts had misapplied California law. Ex parte Wells, 90 F.Supp. 855. When the petitioner applied to the Supreme Court of California for a writ of habeas corpus, as he was instructed to do by the district judge, that court adhered to its prior view as to what the law of California was. Ex parte Wells, 35 Cal.2d 889, 221 P.2d 947. This Court again denied certiorari. Wells v. California, 340 U.S. 937. Thereafter, the same federal judge, although now conceding that he must take California law from California courts, voided the conviction on a federal ground not even mentioned in his earlier opinion. Ex parte Wells, 99 F.Supp. 320. The opinions of the district judge show that he was well aware of the difficulties presented by the procedure, but felt he had no alternative in the light of this Court’s decisions. Indeed, he has contributed the lessons of his own experience in this field in Goodman, Use and Abuse of the Writ of Habeas Corpus, 7 F.R.D. 313. Another caricature of the great writ in action is the Adamson litigation in California. Adamson was sentenced to death in the California trial court in 1944. The Supreme Court of California affirmed the judgment of conviction in 1946. People v. Adamson, 27 Cal.2d 478, 165 P.2d 3. This Court granted certiorari, heard the case on the merits, and affirmed. Adamson v. California, 332 U.S. 46. On January 30, 1948, just one week before the date set for his execution, Adamson petitioned the Supreme Court of California for habeas corpus, and this petition was denied. This Court denied application for a stay and denied certiorari to the Supreme Court of California. Adamson v. California, 333 U.S. 831. Later on the same day that this Court denied certiorari, a judge of the United States District Court for the Northern District of California issued a stay of execution of the sentence. Then the District Court denied the writ and denied a certificate of probable cause to appeal. In Ex parte Adamson, 167 F.2d 996, a judge of the United States Court of Appeals denied an application for a certificate of probable cause. This Court again denied certiorari. Ex parte Adamson, 334 U.S. 834. Even this was not the end, however, for in 1949, we find Adamson appealing to the Supreme Court of California from a denial of an application for a writ of coram nobis. That court then took occasion to question the good faith of the proceedings. 34 Cal.2d 320, 338, 210 P.2d 13. Certainly the use of the federal courts as aids in such delaying tactics as are evidenced here does not elevate the statute of the writ of habeas corpus. We have no mythical abuse here, but a very real problem of harassment of the state.

12. Dixon v. Duffy, 344 U.S. 143.

13. Conference of Chief Justices -- 1952, 25 State Government, No. 11, p. 249 (Nov. 1952):

Whereas it appears that by reason of certain principles enunciated in certain recent federal decisions, a person whose conviction in a criminal proceeding in a State Court has thereafter been affirmed by the highest court of that State, and whose petition for a review of the State Court’s proceedings has been denied by the Supreme Court of the United States, may nevertheless obtain from a Federal district judge or Court, under a writ of habeas corpus, new, independent, and successive hearings based upon a petition supported only by the oath of the petitioner and containing only such statement of facts as were, or could have been, presented in the original proceedings in the State Courts;

And whereas the multiplicity of these procedures available in the inferior Federal Courts to such convicted persons, and the consequent inordinate delays in the enforcement of criminal justice as the result of said Federal decisions will tend toward the dilution of the judicial sense of responsibility, may create grave and undesirable conflicts between Federal and State laws respecting fair trial and due process, and must inevitably lead to the impairment of the public confidence in our judicial institutions;

Now therefore be it resolved that it is the considered view of the Chief Justices of the States of the Union, in conference duly assembled, that orderly Federal procedure under our dual system of government should require that a final judgment of a State’s highest court be subject to review or reversal only by the Supreme Court of the United States.

Be it further resolved that the Chairman of the Conference of Chief Justices be authorized, and he is hereby directed, to appoint a special committee to give study to the grave questions and potential complications likely to ensue if the power to review or void state court judgments continues to be recognized as lying in any courts of the Federal judicial system, save and except the Supreme Court of the United States, and that said special committee report its findings and recommendations at the next regular meeting of the Conference.

14. Ex parte Watkins, 3 Pet. 193, 202.

15. Such was the view expressed by the Solicitor General of the United States at the Bar of this Court during argument of Martinez v. Neely, affirmed by an equally divided Court, 344 U.S. 916. His adversary agreed.

16. Price v. Johnston, supra.

17. In Price v. Johnston, supra, the lower federal courts were reversed for dismissing the convict’s fourth petition. See also statistics as to repeaters in note 8, supra.

18. When petitioner in Brown v. Allen sought certiorari here after his appeal to the state court failed, two Justices dissented from the denial of certiorari. Brown v. North Carolina, 341 U.S. 943.


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Chicago: Jackson, "Jackson, J., Concurring," Brown v. Allen, 344 U.S. 443 (1953) in 344 U.S. 443 344 U.S. 533–344 U.S. 548. Original Sources, accessed March 18, 2019,

MLA: Jackson. "Jackson, J., Concurring." Brown v. Allen, 344 U.S. 443 (1953), in 344 U.S. 443, pp. 344 U.S. 533–344 U.S. 548. Original Sources. 18 Mar. 2019.

Harvard: Jackson, 'Jackson, J., Concurring' in Brown v. Allen, 344 U.S. 443 (1953). cited in 1953, 344 U.S. 443, pp.344 U.S. 533–344 U.S. 548. Original Sources, retrieved 18 March 2019, from