SUPREME COURT OF THE UNITED STATES -------- No. 91-1030 -------- PAMELA WITHROW, PETITIONER v. ROBERT ____ ALLEN WILLIAMS, JR. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT [April 21, 1993] JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in part and dissenting in part. The issue in this case - whether the extraordinary remedy of federal habeas corpus should routinely be available for claimed violations of Miranda rights - _______ involves not jurisdiction to issue the writ, but the equity of doing so. In my ____________ ______ view, both the Court and JUSTICE O'CONNOR disregard the most powerful equitable consideration: that Williams has already had full and fair opportunity to litigate this claim. He had the opportunity to raise it in the Michigan trial court; he did so and lost. He had the opportunity to seek review of the trial court's judgment in the Michigan Court of Appeals; he did so and lost. Finally, he had the opportunity to seek discretionary review of that Court of Appeals judgment in both the Michigan Supreme Court and this Court; he did so and review was denied. The question at this stage is whether, given all that, a federal habeas court should now reopen the issue and adjudicate the Miranda claim anew. _______ The answer seems to me obvious: it should not. That would be the course followed by a federal habeas court reviewing a federal conviction; it mocks our _______ federal system to accord state convictions less respect. 91-1030 - CONCUR/DISSENT 2 WITHROW v. WILLIAMS ____ I By statute, a federal habeas court has jurisdiction over any claim that a prisoner is "in custody in violation of the Constitution or laws" of the United States. See 28 U. S. C. SS2241(c)(3), 2254(a), 2255. While that jurisdiction does require a claim of legal error in the original proceedings, compare Herrera _______ v. Collins, 506 U. S. ___ (1993), it is otherwise sweeping in its breadth. As _______ early as 1868, this Court described it in these terms: "This legislation is of the most comprehensive character. It brings within the habeas corpus jurisdiction of every court and of every judge every ______ ______ possible case of privation of liberty contrary to the National Constitution, treaties, or laws. It is impossible to widen this jurisdiction." Ex parte ________ McCardle, 6 Wall. 318, 325-326 (1868). ________ Our later case law has confirmed that assessment. Habeas jurisdiction extends, we have held, to federal claims for which an opportunity for full and fair litigation has already been provided in state or federal court, see Brown v. _____ Allen, 344 U. S. 443, 458-459 (1953); Kaufman v. United States, 394 U. S. 217, _____ _______ _____________ 223-224 (1969); to procedurally defaulted federal claims, including those over which this Court would have no jurisdiction on direct review, see Fay v. Noia, ___ ____ 372 U. S. 391, 426, 428-429 (1963); Kaufman, supra, at 223; Wainwright v. Sykes, _______ _____ __________ _____ 433 U. S. 72, 90-91 (1977); Coleman v. Thompson, 501 U. S. ___, ___ (1991) (slip _______ ________ op., at 24-25); and to federal claims of a state criminal defendant awaiting trial, see Ex parte Royall, 117 U. S. 241, 251 (1886). _______________ But with great power comes great responsibility. Habeas jurisdiction is tempered by the restraints that accompany the exercise of equitable discretion. This is evident from the text of the federal habeas statute, which provides that writs of habeas corpus "may be granted" - not that they shall be granted - and ___ _____ enjoins the 91-1030 - CONCUR/DISSENT WITHROW v. WILLIAMS 3 ____ court to "dispose of the matter as law and justice require." 28 U. S. C. ___ _______ SS2241(a), 2243 (emphases added). That acknowledgment of discretion is merely the continuation of a long historic tradition. In English law, habeas corpus was one of the so-called "prerogative" writs, which included the writs of mandamus, certiorari, and prohibition. Duker, The English Origins of the Writ of Habeas Corpus: A Peculiar Path to Fame, 53 N. Y. U. L. Rev. 983, 984 n. 2 (1978); 3 W. Blackstone, Commentaries 132 (1768). "[A]s in the case of all other prerogative writs," habeas would not issue "as of mere course," but rather required a showing "why the extraordinary power of the crown is called in to the party's assistance." Ibid. And even where the writ was issued to compel _____ production of the prisoner in court, the standard applied to determine whether relief would be accorded was equitable: the court was to "determine whether the case of [the prisoner's] commitment be just, and thereupon do as to justice shall appertain." 1 id., at 131. ___ This Court has frequently rested its habeas decisions on equitable principles. In one of the earliest federal habeas cases, Ex parte Watkins, 3 Pet. 193, 201 ________________ (1830), Chief Justice Marshall wrote: "No doubt exists respecting the power [of the Court to issue the writ]; the question is, whether this be a case in which it ought to be exercised." And in Ex parte Royall, the Court, while affirming __ _____ ______ that a federal habeas court had "the power" to discharge a state prisoner awaiting trial, held that it was "not bound in every case to exercise such a power," 117 U. S., at 251. The federal habeas statute did "not deprive the court of discretion," which "should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States," ibid. ____ This doctrine continues to be reflected in our modern cases. In declining to extend habeas relief to all cases of state procedural default, the Court in Fay ___ v. Noia said: ____ 91-1030 - CONCUR/DISSENT 4 WITHROW v. WILLIAMS ____ "Discretion is implicit in the statutory command that the judge . . . `dispose of the matter as law and justice require,' 28 U. S. C. S2243; and discretion was the flexible concept employed by the federal courts in developing the exhaustion rule." 372 U. S., at 438. See also Wainwright v. Sykes, supra, at __________ _____ _____ 88. In fashioning this Court's retroactivity doctrine, the plurality in Teague ______ v. Lane, 489 U. S. 288, 308-310 (1989), also relied on equitable considerations. ____ And in a case announced today, holding that the harmless-error standard for habeas corpus is less onerous than the one for direct review, the Court carries on this tradition by expressly considering equitable principles such as "finality," "comity," and "federalism." Brecht v. Abrahamson, ___ U. S. ___, ______ __________ ___ (1993) (slip op., at 14-15). Indeed, as JUSTICE O'CONNOR notes, this Court's jurisprudence has defined the scope of habeas corpus largely by means of such equitable principles. See ante, at 2-4. The use of these principles, ____ which serve as "gateway[s]" through which a habeas petitioner must pass before proceeding to the merits of a constitutional claim, "is grounded in the `equitable discretion' of habeas courts." Herrera v. Collins, supra, at ___ _______ _______ _____ (slip op., at 12-13). II As the Court today acknowledges, see ante, at 4-5, the rule of Stone v. ____ _____ Powell, 428 U. S. 465 (1976), is simply one application of equitable discretion. ______ It does not deny a federal habeas court jurisdiction over Fourth Amendment claims, but merely holds that the court ought not to entertain them when the petitioner has already had an opportunity to litigate them fully and fairly. See id., at 495, n. 37. It is therefore not correct to say that applying Stone ___ _____ to the present case involves "eliminating review of Miranda claims" from federal _______ habeas, ante, at 11, or that the Court is being "asked to exclude a substantive ____ category of issues from relitigation on habeas," ante, at 4 (opinion of ____ O'CONNOR, J.). And it is therefore unnecessary to discuss at length the value of Miranda _______ 91-1030 - CONCUR/DISSENT WITHROW v. WILLIAMS 5 ____ rights, as though it has been proposed that since they are particularly worthless they deserve specially disfavored treatment. The proposed rule would treat Miranda claims no differently from all other claims, taking account of all _______ ________________ equitable factors, including the opportunity for full and fair litigation, in determining whether to provide habeas review. Wherein Miranda and Fourth _______ Amendment claims differ from some other claims, is that the most significant countervailing equitable factor (possibility that the assigned error produced the conviction of an innocent person) will ordinarily not exist. At common law, the opportunity for full and fair litigation of an issue at trial and (if available) direct appeal was not only a factor weighing against _ reaching the merits of an issue on habeas; it was a conclusive factor, unless __________ the issue was a legal issue going to the jurisdiction of the trial court. See Ex parte Watkins, supra, at 202-203; W. Church, Habeas Corpus S363 (1884). ________________ _____ Beginning in the late 19th century, however, that rule was gradually relaxed, by the device of holding that various illegalities deprived the trial court of jurisdiction. See, e.g., Ex parte Lange, 18 Wall. 163, 176 (1874) (no ____ _ ______________ jurisdiction to impose second sentence in violation of Double Jeopardy Clause); Ex parte Siebold, 100 U. S. 371, 376-377 (1880) (no jurisdiction to try ________________ defendant for violation of unconstitutional statute); Frank v. Mangum, 237 U. S. _____ ______ 309 (1915) (no jurisdiction to conduct trial in atmosphere of mob domination); Moore v. Dempsey, 261 U. S. 86 (1923) (same); Johnson v. Zerbst, 304 U. S. 458, _____ _______ _______ ______ 468 (1938) (no jurisdiction to conduct trial that violated defendant's Sixth Amendment right to counsel). See generally Wright v. West, 505 U. S. ___, ___ ______ ____ (1992) (slip op., at 6-7) (opinion of THOMAS, J.); Fay, supra, at 450-451 ___ _____ (Harlan, J., dissenting). Finally, the jurisdictional line was openly abandoned in Waley v. Johnston, 316 U. S. 101, 104-105 (1942). See P. Bator, D. Meltzer, _____ ________ P. Mishkin & D. Shapiro, Hart and Wechsler's 91-1030 - CONCUR/DISSENT 6 WITHROW v. WILLIAMS ____ The Federal Courts and the Federal System 1502 (3d ed. 1988) (hereinafter Hart and Wechsler). But to say that prior opportunity for full and fair litigation no longer automatically precludes from consideration even nonjurisdictional issues is not _____________ to say that such prior opportunity is no longer a relevant equitable factor. Reason would suggest that it must be, and Stone v. Powell, 428 U. S. 465 (1976), _____ ______ establishes that it is. Thus, the question before us is not whether a holding unique to Fourth Amendment claims (and resting upon nothing more principled than our estimation that Fourth Amendment exclusion claims are not very important) should be expanded to some other arbitrary category beyond that; but rather, whether the general principle that is the only valid justification for Stone v. _____ Powell should for some reason not be applied to Miranda claims. I think the ______ ___ _______ answer to that question is clear: Prior opportunity to litigate an issue should be an important equitable consideration in any habeas case, and should ___ ordinarily preclude the court from reaching the merits of a claim, unless it goes to the fairness of the trial process or to the accuracy of the ultimate result. Our case law since Stone is entirely consistent with this view. As the Court _____ notes, ante, at 5-6, we have held that the rule in Stone does not apply in three ____ _____ cases. Kimmelman v. Morrison, 477 U. S. 365 (1986) involved alleged denial of _________ ________ the Sixth Amendment right to counsel, which unquestionably goes to the fairness of the trial process. Rose v. Mitchell, 443 U. S. 545 (1979) involved alleged ____ ________ discrimination by the trial court in violation of the Fourteenth Amendment. We concluded that since the "same trial court will be the court that initially must decide the merits of such a claim," and since the claim involved an assertion that "the state judiciary itself has purposely violated the Equal Protection Clause," no opportunity for a full and fair state hearing existed. Id, at 561; __ see also id., at 563. And Jackson v. Virginia, 443 ___ _______ ________ 91-1030 - CONCUR/DISSENT WITHROW v. WILLIAMS 7 ____ U. S. 307 (1979) involved a claim that "no rational trier of fact could have found proof of guilt beyond a reasonable doubt," id., at 324, which is obviously ___ a direct challenge to the accuracy of the ultimate result. III The rule described above - or indeed a rule even somewhat more limiting of habeas review than that - is followed in federal postconviction review of federal convictions under 28 U. S. C. S2255. In Kaufman v. United States, 394 _______ _______ _____________ U. S. 217 (1969), which held that res judicata does not bar S2255 habeas review of constitutional issues, we stated that a district court had "discretion" to refuse to reach the merits of a constitutional claim that had already been raised and resolved against the prisoner at trial and on direct review. Id., at ___ 227, n. 8. Since Kaufman, federal courts have uniformly held that, absent _______ countervailing considerations, district courts may refuse to reach the merits of a constitutional claim previously raised and rejected on direct appeal. See, e.g., Giacalone v. United States, 739 F. 2d 40, 42-43 (CA2 1984); United States ____ _ _________ _____________ _____________ v. Orejuela, 639 F. 2d 1055, 1057 (CA3 1981); Stephan v. United States, 496 ________ _______ _____________ F. 2d 527, 528-529 (CA6 1974), cert denied sub nom. Marchesani v. United States, ________ __________ _____________ 423 U. S. 861 (1975); see also 3 C. Wright, Federal Practice and Procedure S593, p. 439, n. 26 (1982); Note, Developments in the Law - Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1064-1066 (1970). Thus, a prior opportunity for full and fair litigation is normally dispositive of a federal prisoner's habeas claim. If the claim was raised and rejected on direct review, the habeas court will not readjudicate it absent countervailing equitable considerations; if the claim was not raised, it is procedurally defaulted and the habeas court will not adjudicate it absent countervailing equitable considerations (e.g., actual ____ _ innocence or cause and prejudice, see United States v. Frady, 456 U. S. 152 _____________ _____ (1982)). 91-1030 - CONCUR/DISSENT 8 WITHROW v. WILLIAMS ____ Because lower federal courts have not generally recognized their discretion to deny habeas relief in state cases where opportunity for full and fair litigation was accorded, the peculiar state of current federal habeas practice is this: State courts routinely see their criminal convictions vacated by federal district judges, but federal courts see their criminal convictions afforded a substantial measure of finality and respect. See Hart and Wechsler 1585. Only one theory can possibly justify this disparity - the theory advanced in Fay v. ___ Noia, that a federal forum must be afforded for every federal claim of a state ____ criminal defendant. (Ftnote. 1) See 372 U. S., at 418. In my view, that theory (Ftnote. 1) is profoundly wrong for several reasons. First, it has its origin in a misreading of our early precedents. Fay ___ interpreted the holding of Ex parte Royall - that federal courts had discretion _______________ not to entertain the habeas claims of state prisoners prior to the conclusion of state court proceedings - as containing the implication that after conclusion of _____ those proceedings there would be plenary federal review of all constitutional ___ claims. 372 U. S., at 420. In fact, however, Royall had noted and affirmed the ______ common-law rule that claims of error not going to the jurisdiction of the convicting court could ordinarily be entertained only on writ of error, not on habeas corpus. 117 U. S., at 253. See Fay, 372 U. S., at 453-454 (Harlan, J., ___ dissenting). See also Schneckloth v. Bustamonte, 412 U. S. 218, 255 (1973) ___________ __________ (Powell, J., concurring). Royall contained no hint of a suggestion that a ______ federal habeas court should afford state court judgments less respect than federal court judgments. To the contrary, it maintained the traditional view that federal ____________________ 1) Of course a federal forum is theoretically available in this Court, by 1) writ of certiorari. Quite obviously, however, this mode of review cannot be generally applied due to practical limitations. See, Stone v. Powell, 428 U. S. _____ ______ 465, 526 (1976) (Brennan, J., dissenting). 91-1030 - CONCUR/DISSENT WITHROW v. WILLIAMS 9 ____ and state courts have equal responsibility for the protection of federal constitutional rights. The discretion of the federal habeas court "should be exercised," it said, "in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, . . . courts equally bound to guard and protect rights secured by the Constitution." 117 U. S., at 251. And in describing the proper disposition of a federal habeas petition filed after state conviction, Royall cited Ex parte ______ ________ Lange, 18 Wall. 163 (1874), which involved a federal habeas attack on a federal _____ _______ conviction. See 117 U. S., at 253. Thus, Royall is properly understood as ______ saying that the federal habeas statute guaranteed state prisoners, not a federal forum for all their federal claims, but rather the same rights to federal habeas relief that federal prisoners possessed. Worse than misreading case precedent, however, the federal right/federal forum theory misperceives the basic structure of our national system. That structure establishes this Court as the supreme judicial interpreter of the Federal Constitution and laws, but gives other federal courts no higher or more respected a role than state courts in applying that "Law of the Land" - which it says all state courts are bound by, and all state judges must be sworn to uphold. U. S. Const., Art. VI. See Robb v. Connolly, 111 U. S. 624, 637 ____ ________ (1884); Ex parte Royall, supra, at 251; Brown, 344 U. S., at 499 (opinion of _______________ _____ _____ Frankfurter, J.). It would be a strange constitution that regards state courts as second-rate instruments for the vindication of federal rights and yet makes no mandatory provision for lower federal courts (as our Constitution does not). And it would be an unworkable constitution that requires redetermination in federal courts of all issues of pervasive federal constitutional law that arise in state-court litigation. Absent indication to the contrary, state courts should be presumed to have applied federal law as faithfully as 91-1030 - CONCUR/DISSENT 10 WITHROW v. WILLIAMS ____ federal courts. See Ex parte Royall, supra, at 252; Brecht v. Abrahamson, ___ _______________ _____ ______ __________ U. S., at ___ (slip op., at 15). A federal court entertaining collateral attack against a state criminal conviction should accord the same measure of respect and finality as it would to a federal criminal conviction. As it exercises equitable discretion to determine whether the merits of constitutional claims will be reached in the one, it should exercise a similar discretion for the other. The distinction that has arisen in lower-court practice is unsupported in law, utterly impractical and demeaning to the States in its consequences, and must be eliminated. * * * While I concur in Part III of the Court's opinion, I cannot agree with the rest of its analysis. I would reverse the judgment of the Court of Appeals and remand the case for a determination whether, given that respondent has already been afforded an opportunity for full and fair litigation in the courts of Michigan, any unusual equitable factors counsel in favor of readjudicating the merits of his Miranda claim on habeas corpus. _______