Davis v. Jacobs

454 U.S. 911, 102 S. Ct. 417, 70 L. Ed. 2d 226, 50 U.S.L.W. 3273, 1981 U.S. LEXIS 4051

Opinions

C. A. 2d Cir.;

C. A. 5th Cir.;

C. A. 2d Cir.;

C. A. 4th Cir.;

C. A. 3d Cir.;

C. A. 5th Cir.;

C. A. 9th Cir.;

C. A. 10th Cir.;

C. A. 10th Cir.;

C. A. 3d Cir.;

C. A. 5th Cir.;

C. A. 7th Cir.;

C. A. 5th Cir.;

C. A. 3d Cir.;

C. A. 9th Cir.;

C. A. 9th Cir.; and

C. A. 4th Cir. Certiorari denied. Reported below: No. 80-6508, 644 F. 2d 883; No. 81-5138, 660 F. 2d 493.

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 Courts 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.” 324 U. S., at 44-45.¹ The Court has consistently followed House v. Mayo for over 35 years.²

Second, as the dissent notes: “[A] Circuit Justice, or this Court itself, may issue a certificate of probable cause. See Rosoto v. Warden, 83 S. Ct. 1788, 11 L. Ed. 2d 15 (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 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.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 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

Footnotes

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 Ha-beas 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).

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 (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.

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.

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 (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.”

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.

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 “[cjases in the courts of appeals.”