Rehearing Denied Nov. 9, 1981.
See 454 U.S. 1048.
On petitions for writs of certiorari to the United States Court
of Appeals for the Second Circuit.
Willie L. DILLARD v. R. J. MARKS, Superintendent, Pennsylvania
State Penitentiary, et al.; Allen RODZIEWICZ v. Gary J. HILTON,
Superintendent, New Jersey State Prison, et al.; and James Hugh
HENSON, Jr. v. Walter W. REDMAN, Warden. Nos. 80-6586, 80-6818,
81-5071.
On petitions for writs of certiorari to the United States Court
of Appeals for the Third Circuit.
Durkin WOODRUFF v. Harry L. ALLSBROOK et al.; and Robert Lee
SMITH v. James P. MITCHELL, Warden. Nos. 80-6508, 81-5138.
On petitions for writs of certiorari to the United States Court
of Appeals for the Fourth Circuit.
William James GIBSON v. Frank C. BLACKBURN, Warden; James
FREEMAN v. Joe OLIVER et al.; James Edward CLAYTON v. W. J.
ESTELLE, Director, Texas Department of Corrections; and Burrell
JOHNSON, Jr. v. W. J. ESTELLE, Jr., Director, Texas Department of
Corrections. Nos. 80-6451, 80-6714, 80-6932, 81-5021.
[ Davis v. Jacobs
454
U.S. 911 (1981) ][911-Continued.]
On petitions for writs of certiorari to the United States Court
of Appeals for the Fifth Circuit.
Clarence WILLIAMS v. ILLINOIS. No. 81-358.
On petition for writ of certiorari to the United States Court of
Appeals for the Seventh Circuit.
Orville Gene VINSON v. Robert R. RAINES, Warden; Frank L.
PERKINS v. Robert R. RAINES, Superintendent, Arizona State Prison;
and Benny DIXON v. Robert RAINES. Nos. 80-6732, 81-5082,
81-5118.
On petitions for writs of certiorari to the United States Court
of Appeals for the Ninth Circuit.
Gary Lee McCOLPIN v. Robert A. ATKINS; and William Thomas
HUMPHREY v. OKLAHOMA et al. Nos. 80-6757, 80-6780.
On petitions for writs of certiorari to the United States Court
of Appeals for the Tenth Circuit.
The petitions for writs of certiorari are denied.
Page 454 U.S.
911 , 912
Opinion of Justice STEVENS respecting the denial of the
petitions for writs of certiorari.
The question raised by the dissenting opinion is whether the
order to be entered in these 17 cases should be a dismissal or a
denial. Although this question might be characterized as a
procedural technicality-because its resolution is a matter of
complete indifference to the litigants-the argument made in the
dissent merits a response because it creates the impression that
the Court's answer to this arcane inquiry demonstrates that the
Court is discharging its responsibilities in a lawless manner. The
impression is quite incorrect.
The petitioners in these cases are state prisoners. None of them
has a meritorious claim. Their habeas corpus petitions were all
dismissed by Federal District Judges, and they all unsuccessfully
sought review in the United States Court of Appeals. Because none
of the petitioners obtained a certificate of probable cause, none
of these cases was properly "in" the Court of Appeals and therefore
28 U.S.C. 1254 does not give this Court jurisdiction over the
petitions for certiorari. It is perfectly clear, however, that if
there were merit to the petitions, the Court would have ample
authority to review them in either of two ways.
First, as the Court expressly decided in 1945 in a case that is
procedurally identical to these, this Court has jurisdiction under
28 U.S. C. 1651. In House v. Mayo,
324 U.S. 42, the Court
conceded that it lacked certiorari jurisdiction under the
predecessor to 1254, but squarely held that the All Writs Act, now
28 U. S.C. 1651, authorized the Court to "grant a writ of
certiorari to review the action of the court of appeals in
declining to allow an appeal to it" and to review the "questions on
the merits sought to be raised by the appeal."
Page 454 U.S.
911 , 913
324 U.S., at 44-45.1 The Court has consistently followed House
v. Mayo for over 35 years. [
Footnote 2]
Second, as the dissent notes: "[A] Circuit Justice, or this
Court itself, may issue a certificate of probable cause. See Rosoto
v. Warden (1963) (Harlan, J., in chambers); In re Hunt, 348 U.S.
968 (1955) (Court denying certificate )." Post, at 918. Because we
have that authority, it is part of our responsibility in processing
these petitions to determine whether they have arguable
Page 454 U.S.
911 , 914
merit notwithstanding the failure of a district or circuit judge
to authorize an appeal to the Court of Appeals.
A complete explanation of the Court's conclusion that these
cases have insufficient merit to warrant the exercise of its
jurisdiction should therefore include three elements: (1) the
petitioner has incorrectly invoked our jurisdiction under 28 U.S.C.
1254 because no certificate of probable cause was issued; (2) the
Court has decided not to exercise its jurisdiction under 28 U.S.C.
1651; and (3) neither the Circuit Justice nor the Court has decided
to issue a certificate of probable cause. Instead of entering
detailed orders of this kind in all of these cases,3 the Court
wisely has adopted the practice of entering simple denials.
[
Footnote 4] Ironically, the
dissenters argue that this settled practice creates "more
paperwork." Post, at 919.
As a practical matter, given the volume of frivolous, illegible,
and sometimes unintelligible petitions that are filed in this
Court, our work is facilitated by the practice of simply denying
certiorari once a determination is made that there is no merit to
the petitioner's claim. As the dissenters recognize, that
determination must be made in all cases because
Page 454 U.S.
911 , 915
Circuit Justices have the power-and indeed the duty-to issue
certificates of probable cause in proper cases. Imposing on the
Court the additional burden of determining in every case whether
the form of the order should be a denial or a dismissal is not a
trivial matter because in many cases more time would be required in
searching the record to be sure that no certificate of probable
cause was issued than is required in evaluating a contention that
has been unsuccessfully advanced by countless other prisoners.
For these reasons, I believe the Court correctly adheres to the
practice it consistently has followed since the decision of House
v. Mayo in 1945.5
Justice REHNQUIST, with whom THE CHIEF JUSTICE and Justice
POWELL join, dissenting.
In Jeffries v. Barksdale,
453 U.S. 914 (1981), THE
CHIEF JUSTICE, Justice POWELL, and I dissented from a simple denial
of the writ of certiorari, contending that the writ should
Page 454 U.S.
911 , 916
instead be dismissed because we had no jurisdiction to consider
it. Further reflection and research have only strengthened my
belief that where a specific statutory enactment dealing with our
jurisdiction to consider decisions of the courts of appeals limits
that jurisdiction to "[ c]ases in the courts of appeals," 28 U.S.C.
1254, we are bound by that statutory provision just as we would be
bound by any other statutory provision, unless we were to hold it
violative of some provision of the Constitution.
In each of these cases, the petitioner was convicted in a state
court . He then sought habeas corpus relief in a United States
District Court, and the District Court dismissed the action or
denied the writ and refused to issue a certificate of probable
cause to appeal. Section 2253 of Title 28 of the United States Code
provides as follows: "An appeal may not be taken to the court of
appeals from the final order in a habeas corpus proceeding where
the detention complained of arises out of process issued by a State
court, unless the justice or judge who rendered the order or a
circuit justice or judge issues a certificate of probable cause"
(emphasis supplied).
The effect of this statute, which could not have been drafted in
plainer terms, is clear: a certificate of probable cause is an
indispensable prerequisite to an appeal from the District Court to
the appropriate Court of Appeals. This has long been recognized by
the courts, see, e. g., Wilson v. Lanagan, 79 F.2d 702 (CA1 1935);
Hooks v. Fourth District Court of Appeal,
442
F.2d 1042 (CA5 1971), and by distinguished commentators, see,
e. g., Blackmun, Allowance of In Forma Pauperis Appeals in 2255 and
Habeas Corpus Cases, 43 F.R.D. 343, 351 (1967). Our cases are not
entirely in harmony as to their reasoning on this issue, though all
concede that there is no jurisdiction to grant a writ of certiorari
where both the District Court and the Court of Appeals have denied
a habeas corpus petitioner a certificate of probable
Page 454 U.S.
911 , 917
cause to appeal. See Bilik v. Strassheim,
212 U.S. 551 (1908); Ex
parte Patrick, 212 U.S. 555 (1908); House v. Mayo,
324 U.S.
42, 44, 519 (1945). In House, however, this Court held that
although it could not entertain a petition for certiorari, it had
jurisdiction under the All Writs Act, currently codified at 28
U.S.C. 1651, to determine the merits of the habeas petition, as
well as whether the Court of Appeals had abused its discretion in
denying the petitioner a certificate of probable cause to appeal.
Id., at 44-45. In reaching this conclusion, it relied on a series
of cases interpreting the scope of the common-law writ of
certiorari under the All Writs Act. See, e. g., Steffler v. United
States,
319 U.S.
38 (1943); Wells v. United States,
318 U.S. 257 (1943); In
re 620 Church St. Corp.,
299 U.S. 24 (1936).
This reasoning, however, would seem to conflict with the
principles established in United States Alkali Export Assn. v.
United States,
325 U.S.
196, 203, 1125 (1945), and its companion case De Beers
Consolidated Mines, Ltd. v. United States,
325 U.S. 212 (1945).
These two cases hold that where Congress has withheld appellate
review, the All Writs Act cannot be used as a substitute for an
authorized appeal. Review by common-law certiorari or any other
extraordinary writ is not permissible in the face of a legislative
purpose to foreclose review in a particular set of circumstances.
Alkali Export, supra, 325 U.S., at 203.
Congress, in enacting 28 U.S.C. 2253, has determined that an
indispensable prerequisite to an appeal in a habeas corpus
proceeding is a certificate of probable cause. The legislative
history of this section demonstrates a clear congressional purpose
to impose this requirement as a means of terminating frivolous
appeals in habeas corpus proceedings. See H.R.Rep.No. 23, 60th
Cong., 1st Sess. (1908). Undoubtedly, one of the purposes of 2253
is to protect the States from the necessity of responding to the
volume of frivolous appeals. This purpose is hardly furthered when
uncertificated petitioners are permitted to seek common-law
Page 454 U.S.
911 , 918
writs of certiorari in this Court, thereby imposing a burden
upon the States to respond. Where the statutory scheme permits
appellate review only upon the issuance of such a certificate,
review by extraordinary writ in the absence of a certificate
collides with Congress' express purpose to foreclose review.*
We should not fear that a more exacting application of 2253 will
result in meritorious petitions for habeas corpus slipping by
unobservant or callous Courts of Appeals, thereby evading any
review by this Court. Pursuant to 2253, a Circuit Justice, or this
Court itself, may issue a certificate of probable cause. See Rosoto
v. Warden, 11 L. Ed. 2d 15 (1963) (Harlan, J., in chambers); In re
Hunt, 348 U.S. 968, 75 S. Ct. 536 (1955) (Court denying
certificate). Thus, the failure to observe the congressional
mandate as to this Court's jurisdiction of a petition for
certiorari to a Court of Appeals in the absence of a certificate of
probable cause in no way bars consideration of the merits of a
petition which any Member of this Court believes to be deserving of
a certificate of probable cause.
But the practice from which I dissented in Jeffries v.
Page 454 U.S.
911 , 919
Barksdale,
453
U.S. 914 (1981), in addition to creating more paperwork with no
observable change in the results of a case, has at least two
singularly undesirable side effects. Presumably a case where a
Court of Appeals has refused to grant leave to appeal, and thus has
neither examined the accuracy of petitioner's factual assertions
nor articulated the reasons for its conclusion that petitioner's
legal contentions lack merit, is not an ideal candidate for
certiorari here entirely apart from the importance of the issues
presented by such a petition. In Conway v. California Adult
Authority,
396 U.S.
107 (1969), this Court dismissed a writ of certiorari as
improvidently granted because the petitioner had misstated the
facts in his petition so as to create a purely artificial and
hypothetical issue.
But an even more important consequence of the disregard of
congressional provisions as to our jurisdiction is a tendency to
weaken the authority of this Court when it can demonstrate in a
principled manner that it has either the constitutional or
statutory authority to decide a particular issue. The necessary
concomitant of our tripartite system of government that the other
two branches of government obey judgments rendered within our
jurisdiction is sapped whenever we decline for any reason other
than the exercise of our own constitutional duties to similarly
follow the mandates of Congress and the Executive within their
spheres of authority.
Footnotes
Footnote 1 The dissenting
opinion makes the entirely unwarranted assumption that United
States Alkali Export Assn. v. United States,
325 U.S. 196 (1945), and
its companion case, De Beers Consolidated Mines, Ltd. v. United
States,
325 U.S.
212 (1945), decided only a few weeks after House, implicitly
overruled that case. In those cases, the petitioners had sought by
writs of certiorari interlocutory review of orders issued by
Federal District Courts, and the statutes that expressly conferred
upon this Court appellate jurisdiction did not provide for
interlocutory review. Despite its language that "[t]he writs may
not be used as a substitute for an authorized appeal," 325 U.S., at
203, the Court reasoned that in both cases there were
countervailing interests that so outweighed the interest in
avoidance of piecemeal review that review by certiorari was
appropriate. The holdings in Alkali and De Beers actually reinforce
the holding in House because the interest in granting habeas relief
in a deserving case clearly outweighs the interest in terminating
frivolous appeals, especially when certiorari petitions are filed
with this Court despite the refusals of the lower courts to grant
certificates of probable cause. See Oaks, The "Original" Writ of
Habeas Corpus in the Supreme Court, 1962 S.Ct.Rev. 153, 187, and n.
158 (distinguishing De Beers from House on the ground that the
former involved property rights).
Footnote 2 In Burwell v.
Teets, 350 U.S. 808 ( 1955), and Rogers v. Teets, 350 U.S. 809
(1955 ), the Court granted writs of certiorari despite the refusals
of the lower courts to grant certificates of probable cause. See In
re Burwell,
350 U.S.
521 (1956). And in In re Adamson, 334 U.S. 834 (1948), the
Court denied a petition for certiorari despite the denials by the
lower courts of the petitioner's applications for a certificate of
probable cause to appeal. See Brown v. Allen,
344 U.S. 443, 537, n. 11,
425, n. 11 ( 1953) (Jackson, J., concurring in result). For the
proposition that House reflects the historically correct view of
the scope of the common-law writ of certiorari, see Oaks, supra, at
182-189.
Footnote 3 We do follow the
practice in handling our appellate docket of treating appeals that
are improperly taken as though they had been filed as petitions for
certiorari and then denying them, cf. 28 U.S.C. 2103; however, it
hardly seems necessary to adopt a similar practice in the
administration of our discretionary powers over certiorari
petitions.
Footnote 4 It is noteworthy
that Justice Frankfurter, who was especially scrupulous about
jurisdictional matters, considered it entirely appropriate to deny
certiorari because of a jurisdictional defect. In his opinion
respecting the denial of the petition for writ of certiorari in
Maryland v. Baltimore Radio Show, Inc.,
338 U.S. 912, 917-918,
254 (1950), he stated:
"Narrowly technical reasons may lead
to denials. Review may be sought too late; the judgment of the
lower court may not be final; it may not be the judgment of a State
court of last resort; the decision may be supportable as a matter
of State law, not subject to review by this Court, even though the
State court also passed on issues of federal law. A decision may
satisfy all these technical requirements and yet may commend itself
for review to fewer than four members of the Court."
Footnote 5 The dissenters
place mistaken reliance on Bilik v. Strassheim,
212 U.S. 551 (1908). That
decision was a one-line per curiam dismissal for want of
jurisdiction of an appeal of the denial of a habeas corpus petition
by a state prisoner where the Circuit Court had not granted a
certificate of probable cause. The Court relied upon the Act of
Mar. 10, 1908, ch. 76, 35 Stat. 40, which provides as follows:
"[F]rom a final decision by a court
of the United States in a proceeding in habeas corpus where the
detention complained of is by virtue of process issued out of a
State court no appeal to the Supreme Court shall be allowed unless
the United States court by which the final decision was rendered or
a justice of the Supreme Court shall be of opinion that there
exists probable cause for an appeal, in which event, on allowing
the same, the said court or justice shall certify that there is
probable cause for such allowance." See
212 U.S., at 551, n.
1, n. 1.
That Act expressly refers to this Court's jurisdiction over
appeals by state prisoners of denials of habeas corpus relief by
lower federal courts. Title 28 U.S.C. 2253, by contrast, refers to
the courts of appeals' jurisdiction over such appeals. Section 2253
bears on this Court's jurisdiction only because this Court's
certiorari jurisdiction under 28 U.S.C. 1254 is limited to "[c]ases
in the courts of appeals."
[
Footnote *] Although the concurring
opinion correctly notes that this Court utilized the common-law
writ in Alkali Export, to review an interlocutory order by the
District Court, this hardly "reinforce[s] the holding in House [v.
Mayo]." Ante, at 913, n. 1. The questions in Alkali Export involved
the propriety of an exercise of the District Court's equitable
jurisdiction, where there was an apparent conflict between its
jurisdiction and that of the agency specifically charged by
Congress with the duty of enforcing the antitrust laws under the
circumstances present in that case. Thus, the common-law writ was
utilized by this Court in Alkali Export only to determine whether
the District Court's assumption of jurisdiction conflicted with
Congress' intent to foreclose such jurisdiction pending a
determination of a particularly sensitive issue by the Federal
Trade Commission. Alkali Export, 325 U.S., at 203-204, 65 S. Ct. at
1125. In contrast, use of the common-law writ to review
uncertificated petitions does not operate to ensure that a lower
court is exercising its jurisdiction in accord with congressional
intent. It has precisely the opposite effect of providing
uncertificated petitioners with certiorari review in the teeth of a
congressional mandate that such review should not be available.
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