Following the Supreme Court of New Jersey's affirmance of petitioner's murder conviction, in 1961 petitioner sought a writ of habeas corpus in the District Court, asserting, among other grounds, that his confession had been coerced. Petitioner's then counsel, though asserting the right to an evidentiary hearing, relinquished it. Relying on the state trial record, the court held, inter alia, that the confession was not coerced and denied the petition. Thereafter Townsend v. Sain, 372 U.S. 293 , was decided, which substantially increased the availability of evidentiary hearings in habeas corpus proceedings. The Court of Appeals affirmed. In 1965 petitioner again sought habeas corpus in the District Court and asked for an evidentiary hearing. Noting that the coercion issue had been adjudicated in the prior habeas corpus proceeding, the District Court, without conducting an evidentiary hearing, denied the application. The Court of Appeals affirmed, concluding that petitioner had waived his claim to such a hearing in 1961. Held:
Edward Bennett Williams, Steven M. Umin, and Stephen F. Lichtenstein for petitioner.
This petition for a writ of certiorari presents the question whether petitioner's relinquishment of an evidentiary [393 U.S. 122, 123] hearing in a federal habeas corpus proceeding taking place prior to Townsend v. Sain, 372 U.S. 293 , bars him from obtaining such a hearing on a subsequent application made after Townsend was decided.
In 1957, petitioner was convicted of first-degree murder in a New Jersey court, and sentenced to death. The Supreme Court of New Jersey affirmed the conviction, State v. Smith, 27 N. J. 433, 142 A. 2d 890, and subsequently affirmed the denial of a motion for a new trial. State v. Smith, 29 N. J. 561, 150 A. 2d 769.
Petitioner thereafter sought a writ of habeas corpus in the United States District Court for the District of New Jersey. During oral argument before the District Court on June 5, 1961, petitioner's counsel, referring to the then recent decision in Rogers v. Richmond, 365 U.S. 534 , stated:
In 1965, petitioner again sought habeas corpus in the District Court, requesting an evidentiary hearing. As supplemented, the application alleged facts relevant to the admissibility of the confession which were not brought out at trial, and which, if proved, presented a stronger case that the confession was coerced. 2 The District Court denied the application without conducting an evidentiary hearing, noting that the issue of coercion had been adjudicated in the prior habeas proceeding. The Court of Appeals affirmed per curiam, Judge Biggs dissenting. Referring to the above-quoted statement by petitioner's counsel, and to some remarks of the District Court at an earlier stage of the 1961 proceeding, 3 the Court of Appeals concluded that petitioner had waived his claim to an evidentiary hearing in 1961. 395 F.2d 245. Rehearing en banc was denied, Judge Freedman dissenting, 4 and this petition for certiorari followed.
We note initially that the usual principles of res judicata are inapplicable to successive habeas corpus proceedings. 5 [393 U.S. 122, 125] Salinger v. Loisel, 265 U.S. 224 ; cf. Sanders v. United States, 373 U.S. 1 . Whatever the standards for waiver may be in other circumstances, the essential question here is whether the petitioner "deliberately withheld the newly asserted ground" in the prior proceeding, or "otherwise abused the writ." 28 U.S.C. 2244 (b) (1964 ed., Supp. III).
At the time of the 1961 proceeding, Brown v. Allen, 344 U.S. 443 , indicated that a District Court's discretion to hold an evidentiary hearing was to be exercised only in "unusual circumstances," 344 U.S., at 463 , or where a "vital flaw" existed in the state procedure. 344 U.S., at 506 (opinion of Mr. Justice Frankfurter). Townsend v. Sain, supra, had not yet been decided. This Court recognized in Townsend "that the opinions in Brown v. Allen . . . do not provide answers for all aspects of the hearing problem for the lower federal courts, which have reached widely divergent, in fact often irreconcilable, results," 372 U.S., at 310 , and established criteria for the granting of evidentiary hearings "which must be considered to supersede, to the extent of any inconsistencies, the opinions in Brown v. Allen . . . ." 372 U.S., at 312 . Townsend v. Sain substantially increased the availability of evidentiary hearings in habeas corpus proceedings, and made mandatory much of what had previously been within the broad discretion of the District Court. See also Fay v. Noia, 372 U.S. 391 .
It is at least doubtful whether petitioner could have obtained an evidentiary hearing as the law stood in 1961. Indeed, at the time, the State argued to the District Court with some cogency that petitioner presented "no unusual circumstances calling for a hearing." We do not believe that petitioner should be placed in a worse position because [393 U.S. 122, 126] his then counsel asserted that he had a right to an evidentiary hearing and then relinquished it. Whatever counsel's reasons for this obscure gesture of noblesse oblige, 6 we cannot now examine the state of his mind, or presume that he intentionally relinquished a known right of privilege, Johnson v. Zerbst, 304 U.S. 458, 464 , when the right or privilege was of doubtful existence at the time of the supposed waiver. In short, we conclude that petitioner's failure to demand an evidentiary hearing in 1961, followed by such a demand after the decision in Townsend v. Sain, supra, constitutes no abuse of the writ of habeas corpus.
[ Footnote 2 ] The allegations, which include claims of physical harassment by the police, are set out in Judge Biggs' dissenting opinion below, 395 F.2d 245, 253, n. 12.
[ Footnote 3 ] On May 15, 1961, during argument on the State's motion to strike petitioner's "Amended and/or Supplemental Petition," the District Court indicated its concern that the record be complete to the satisfaction of both parties. The Court of Appeals construed this as an offer to conduct an evidentiary hearing. No explicit mention of an evidentiary hearing was made, however. A reading of the entire colloquy in the District Court, though not unambiguous, suggests, as Judge Biggs noted in dissent below, that the discussion was concerned only with "the issue of whether or not the case would proceed upon the original petition for habeas corpus and answer, the supplemental petition for habeas corpus and answer, or on both sets of pleadings." 395 F.2d 245, 249, n. 4.
[ Footnote 4 ] Judge Biggs did not participate.
[ Footnote 5 ] For this reason, if no other, the fact that Townsend v. Sain was decided before the Court of Appeals' decision in the first proceeding, and considered by the Court of Appeals there in denying rehearing en banc, is not dispositive of the present case.
[ Footnote 6 ] As the State pointed out during the 1961 hearing, Rogers v. Richmond, supra, the case chiefly relied on by petitioner, does not appear to support his claim to an evidentiary hearing. See especially 365 U.S., at 547 . [393 U.S. 122, 127]