Wainwright v. Sykes

433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594, 1977 U.S. LEXIS 135

Opinions

Mr. Justice Rehnquist

delivered the opinion of the Court.

We granted certiorari to consider the availability of federal habeas corpus to review a state convict’s claim that testimony was admitted at his trial in violation of his rights under Miranda v. Arizona, 384 U. S. 436 (1966), a claim which the Florida courts have previously refused to consider on the merits because of noncompliance with a state contemporaneous-objection rule. Petitioner Wainwright, on behalf of the State of Florida, here challenges a decision of the Court of Appeals for the Fifth Circuit ordering a hearing in state court on the merits of respondent’s contention.

Respondent Sykes was convicted of third-degree murder after a jury trial in the Circuit Court of DeSoto County. He testified at trial that on the evening of January 8, 1972, he told his wife to summon the police because he had just shot Willie Gilbert. Other evidence indicated that when the police arrived at respondent’s trailer home, they found Gilbert dead of a shotgun wound, lying a few feet from the front porch. Shortly after their arrival, respondent came from across the road and volunteered that he had shot Gilbert, and a few minutes later respondent’s wife approached the police and told them the same thing. Sykes was immediately arrested and taken to the police station.

Once there, it is conceded that he was read his Miranda rights, and that he declined to seek the aid of counsel and indicated a desire to talk. He then made a statement, which was admitted into evidence at trial through the testimony of the two officers who heard it,¹ to the effect that he had shot Gilbert from the front porch of his trailer home. There were several references during the trial to respondent’s consumption of alcohol during the preceding day and to his apparent state of intoxication, facts which were acknowledged by the officers who arrived at the scene. At no time during the trial, however, was the admissibility of any of respondent’s statements challenged by his counsel on the ground that respondent had not understood the Miranda warnings.² Nor did the trial judge question their admissibility on his own motion or hold a factfinding hearing bearing on that issue.

Respondent appealed his conviction, but apparently did not challenge the admissibility of the inculpatory statements.³ He later filed in the trial court a motion to vacate the conviction and, in the State District Court of Appeals and Supreme Court, petitions for habeas corpus. These filings, apparently for the first time, challenged the statements made to police on grounds of involuntariness. In all of these efforts respondent was unsuccessful.

Having failed in the Florida courts, respondent initiated the present action under 28 U. S. C. § 2254, asserting the inadmissibility of his statements by reason of his lack of understanding of the Miranda warnings.⁴ The United States District Court for the Middle District of Florida ruled that Jackson v. Denno, 378 U. S. 368 (1964), requires a hearing in a state criminal trial prior to the admission of an inculpatory out-of-court statement by the defendant. It held further that respondent had not lost his right to assert such a claim by failing to object at trial or on direct appeal, since only “exceptional circumstances” of “strategic decisions at trial” can create such a bar to raising federal constitutional claims in a federal habeas action. The court stayed issuance of the writ to allow the state court to hold a hearing on the “voluntariness” of the statements.

Petitioner warden appealed this decision to the United States Court of Appeals for the Fifth Circuit. That court first considered the nature of the right to exclusion of statements made without a knowing waiver of the right to counsel and the right not to incriminate oneself. It noted that Jackson v. Denno, supra, guarantees a right to a hearing on whether a defendant has knowingly waived his rights as described to him in the Miranda warnings, and stated that under Florida law “[t]he burden is on the State to secure [a] prima facie determination of voluntariness, not upon the defendant to demand it.” 528 F. 2d 522, 525 (1976).

The court then directed its attention to the effect on respondent’s right of Florida Rule Grim. Proc. 3.190 (i),⁵ which it described as “a contemporaneous objection rule” applying to motions to suppress a defendant’s inculpatory statements. It focused on this Court’s decisions in Henry v. Mississippi, 379 U. S. 443 (1965); Davis v. United States, 411 U. S. 233 (1973); and Fay v. Noia, 372 U. S. 391 (1963), and concluded that the failure to comply with the rule requiring objection at the trial would only bar review of the suppression claim where the right to object was deliberately bypassed for reasons relating to trial tactics. The Court of Appeals distinguished our decision in Davis, supra (where failure to comply with a rule requiring pretrial objection to the indictment was found to bar habeas review of the underlying constitutional claim absent showing of cause for the failure and prejudice resulting), for the reason that “[a] major tenet of the Davis decision was that no prejudice was shown” to have resulted from the failure to object. It found that prejudice is "inherent” in any situation, like the present one, where the admissibility of an incriminating statement is concerned. Concluding that “[t]he failure to object in this case cannot be dismissed as a trial tactic, and thus a deliberate by-pass,” the court affirmed the District Court order that the State hold a hearing on whether respondent knowingly waived his Miranda rights at the time he made the statements.

The simple legal question before the Court calls for a construction of the language of 28 U. S. C. § 2254 (a), which provides that the federal courts shall entertain an application for a writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” But, to put it mildly, we do not write on a clean slate in construing this statutory provision.⁶ Its earliest counterpart, applicable only to prisoners detained by federal authority, is found in the Judiciary Act of 1789. Construing that statute for the Court in Ex parte Watkins, 3 Pet. 193, 202 (1830), Mr. Chief Justice Marshall said:

“An imprisonment under a judgment cannot be unlawful, unless that judgment be an absolute nullity; and it is not a nullity if the Court has general jurisdiction of the subject, although it should be erroneous.”

See Ex parte Kearney, 7 Wheat. 38 (1822).

In 1867, Congress expanded the statutory language so as to make the writ available to one held in state as well as federal custody. For more than a century since the 1867 amendment, this Court has grappled with the relationship between the classical common-law writ of habeas corpus and the remedy provided in 28 U. S. C. § 2254. Sharp division within the Court has been manifested on more than one aspect of the perplexing problems which have been litigated in this connection. Where the habeas petitioner challenges a final judgment of conviction rendered by a state court, this Court has been called upon to decide no fewer than four different questions, all to a degree interrelated with one another: (1) What types of federal claims may a federal habeas court properly consider? (2) Where a federal claim is cognizable by a federal habeas court, to what extent must that court defer to a resolution of the claim in prior state proceedings? (3) To what extent must the petitioner who seeks federal habeas exhaust state remedies before resorting to the federal court? (4) In what instances will an adequate and independent state ground bar consideration of otherwise cognizable federal issues on federal habeas review?

Each of these four issues has spawned its share of litigation. With respect to the first, the rule laid down in Ex parte Watkins, supra, was gradually changed by judicial decisions expanding the availability of habeas relief beyond attacks focused narrowly on the jurisdiction of the sentencing court. See Ex parte Wells, 18 How. 307 (1856); Ex parte Lange, 18 Wall. 163 (1874). Ex parte Siebold, 100 U. S. 371 (1880), authorized use of the writ to challenge a conviction under a federal statute where the statute was claimed to violate the United States Constitution. Frank v. Mangum, 237 U. S. 309 (1915), and Moore v. Dempsey, 261 U. S. 86 (1923), though in large part inconsistent with one another, together broadened the concept of jurisdiction to allow review of a claim of “mob domination" of what was in all other respects a trial in a court of competent jurisdiction.

In Johnson v. Zerbst, 304 U. S. 458, 463 (1938), an indigent federal prisoner’s claim that he was denied the right to counsel at his trial was held to state a contention going to the “power and authority” of the trial court, which might be reviewed on habeas. Finally, in Waley v. Johnston, 316 U. S. 101 (1942), the Court openly discarded the concept of jurisdiction — by then more a fiction than anything else — as a touchstone of the availability of federal habeas review, and acknowledged that such review is available for claims of “disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights.” Id., at 104—105. In Brown v. Allen, 344 U. S. 443 (1953), it was made explicit that a state prisoner’s challenge to the trial court’s resolution of dispositive federal issues is always fair game on federal habeas. Only last Term in Stone v. Powell, 428 U. S. 465 (1976), the Court removed from the purview of a federal habeas court challenges resting on the Fourth Amendment, where there has been a full and fair opportunity to raise them in the state court. See Schneckloth v. Bustamonte, 412 U. S. 218, 250 (1973) (Powell, J., concurring).

The degree of deference to be given to a state court’s resolution of a federal-law issue was elaborately canvassed in the Court’s opinion in Brown v. Allen, supra. Speaking for the Court, Mr. Justice Reed stated: “[Such] state adjudication carries the weight that federal practice gives to the conclusion of a court of last resort of another jurisdiction on federal constitutional issues. It is not res judicata.” 344 U. S., at 458. The duty of the federal habeas court to hold a factfinding hearing in specific situations, notwithstanding the prior resolution of the issues in state court, was thoroughly explored in this Court’s later decision in Townsend v. Sain, 372 U. S. 293 (1963). Congress addressed this aspect of federal habeas in 1966 when it amended § 2254 to deal with the problem treated in Townsend. 80 Stat. 1105. See LaVallee v. Delle Rose, 410 U. S. 690 (1973).

The exhaustion-of-state-remedies requirement was first articulated by this Court in the case of Ex parte Royall, 117 U. S. 241 (1886). There, a state defendant sought habeas in advance of trial on a claim that he had been indicted under an unconstitutional statute. The writ was dismissed by the District Court, and this Court affirmed, stating that while there was power in the federal courts to entertain such petitions, as a matter of comity they should usually stay their hand pending consideration of the issue in the normal course of the state trial. This rule has been followed in subsequent cases, e. g., Cook v. Hart, 146 U. S. 183 (1892); Whitten v. Tomlinson, 160 U. S. 231 (1895); Baker v. Grice, 169 U. S. 284 (1898); Mooney v. Holohan, 294 U. S. 103 (1935), and has been incorporated into the language of § 2254.⁷ Like other issues surrounding the availability of federal habeas corpus relief, though, this line of authority has not been without historical uncertainties and changes in direction on the part of the Court. See Ex parte Hawk, 321 U. S. 114, 116-117 (1944); Darr v. Burford, 339 U. S. 200 (1950); Irvin v. Dowd, 359 U. S. 394, 405-406 (1959); Fay v. Noia, 372 U. S. 391, 435 (1963).

There is no need to consider here in greater detail these first three areas of controversy attendant to federal habeas review of state convictions. Only the fourth area — the adequacy of state grounds to bar federal habeas review — is presented in this case. The foregoing discussion of the other three is pertinent here only as it illustrates this Court’s historic willingness to overturn or modify its earlier views of the scope of the writ, even where the statutory language authorizing judicial action has remained unchanged.

As to the role of adequate and independent state grounds, it is a well-established principle of federalism that a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts. Fox Film Corp. v. Muller, 296 U. S. 207 (1935); Murdock v. Memphis, 20 Wall. 590 (1875). The application of this principle in the context of a federal habeas proceeding has therefore excluded from consideration any questions of state substantive law, and thus effectively barred federal habeas review where questions of that sort are either the only ones raised by a petitioner or are in themselves dispositive of his case. The area of controversy which has developed has concerned the reviewability of federal claims which the state court has declined to pass on because not presented in the manner prescribed by its procedural rules. The adequacy of such an independent state procedural ground to prevent federal habeas review of the underlying federal issue has been treated very differently than where the state-law ground is substantive. The pertinent decisions marking the Court’s somewhat tortuous efforts to deal with this problem are: Ex parte Spencer, 228 U. S. 652 (1913); Brown v. Allen, 344 U. S. 443 (1953); Fay v. Noia, supra; Davis v. United States, 411 U. S. 233 (1973); and Francis v. Henderson, 425 U. S. 536 (1976).

In Brown, supra, petitioner Daniels’ lawyer had failed to mail the appeal papers to the State Supreme Court on the last day provided by law for filing, and hand delivered them one day after that date. Citing the state rule requiring timely filing, the Supreme Court of North Carolina refused to hear the appeal. This Court, relying in part on its earlier decision in Ex parte Spencer, supra, held that federal habeas was not available to review a constitutional claim which could not have been reviewed on direct appeal here because it rested on an independent and adequate state procedural ground. 344 U. S., at 486-487.

In Fay v. Noia, supra, respondent Noia sought federal habeas to review a claim that his state-court conviction had resulted from the introduction of a coerced confession in violation of the Fifth Amendment to the United States Constitution. While the convictions of his two codefendants were reversed on that ground in collateral proceedings following their appeals, Noia did not appeal and the New York courts ruled that his subsequent coram nobis action was barred on account of that failure. This Court held that petitioner was nonetheless entitled to raise the claim in federal habeas, and thereby overruled its decision 10 years earlier in Brown v. Allen, supra:

“[T]he doctrine under which state procedural defaults are held to constitute an adequate and independent state law ground barring direct Supreme Court review is not to be extended to limit the power granted the federal courts under the federal habeas statute.” 372 U. S., at 399.

As a matter of comity but not of federal power, the Court acknowledged “a limited discretion in the federal judge to deny relief ... to an applicant who had deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies.” Id., at 438. In so stating, the Court made clear that the waiver must be knowing and actual — “ 'an intentional relinquishment or abandonment of a known right or privilege.’ ” Id., at 439, quoting Johnson v. Zerbst, 304 U. S., at 464. Noting petitioner’s “grisly choice” between acceptance of his life sentence and pursuit of an appeal which might culminate in a sentence of death, the Court concluded that there had been no deliberate bypass of the right to have the federal issues reviewed through a state appeal.⁸

A decade later we decided Davis v. United States, supra, in which a federal prisoner's application under 28 U. S. C. § 2255 sought for the first time to challenge the makeup of the grand jury which indicted him. The Government contended that he was barred by the requirement of Fed. Rule Crim. Proc. 12 (b) (2) providing that such challenges must be raised “by motion before trial.” The Rule further provides that failure to so object constitutes a waiver of the objection, but that “the court for cause shown may grant relief from the waiver.” We noted that the Rule “promulgated by this Court and, pursuant to 18 U. S. C. § 3771, 'adopted' by Congress, governs by its terms the manner in which the claims of defects in the institution of criminal proceedings may be waived,” 411 U. S., at 241, and held that this standard contained in the Rule, rather than the Fay v. Noia concept of waiver, should pertain in federal habeas as on direct review. Referring to previous constructions of Rule 12(b)(2), we concluded that review of the claim should be barred on habeas, as on direct appeal, absent a showing of cause for the noncompliance and some showing of actual prejudice resulting from the alleged constitutional violation.

Last Term, in Francis v. Henderson, supra, the rule of Davis was applied to the parallel case of a state procedural requirement that challenges to grand jury composition be raised before trial. The Court noted that there was power in the federal courts to entertain an application in such a case, but rested its holding on “considerations of comity and concerns for the orderly administration of criminal justice 425 U. S., at 538-539. While there was no counterpart provision of the state rule which allowed an exception upon some showing of cause, the Court concluded that the standard derived from the Federal Rule should nonetheless be applied in that context since “ ‘[t]here is no reason to . . . give greater pre-clusive effect to procedural defaults by federal defendants than to similar defaults by state defendants.' ” Id., at 542, quoting Kaufman v. United States, 394 U. S. 217, 228 (1969). As applied to the federal petitions of state convicts, the Davis cause-and-prejudice standard was thus incorporated directly into the body of law governing the availability of federal habeas corpus review.

To the extent that the dicta of Fay v. Noia may be thought to have laid down an all-inclusive rule rendering state contemporaneous-objection rules ineffective to bar review of underlying federal claims in federal habeas proceedings — absent a “knowing waiver” or a “deliberate bypass” of the right to so object — its effect was limited by Francis, which applied a different rule and barred a habeas challenge to the makeup of a grand jury. Petitioner Wainwright in this case urges that we further confine its effect by applying the principle enunciated in Francis to a claimed error in the admission of a defendant's confession.

Respondent first contends that any discussion as to the effect that noncompliance with a state procedural rule should have on the availability of federal habeas is quite unnecessary because in his view Florida did not actually have a contemporaneous-objection rule. He would have us interpret Florida Rule Crim. Proc. 3.190 (i),⁹ which petitioner asserts is a traditional “contemporaneous objection rule,” to place the burden on the trial judge to raise on his own motion the question of the admissibility of any inculpatory statement. Respondent’s approach is, to say the least, difficult to square with the language of the Rule, which in unmistakable terms and with specified exceptions requires that the motion to suppress be raised before trial. Since all of the Florida appellate courts refused to review petitioner’s federal claim on the merits after his trial, and since their action in so doing is quite consistent with a line of Florida authorities interpreting the rule in question as requiring a contemporaneous objection, we accept the State's position on this point. See Blatch v. State, 216 So. 2d 261, 264 (Fla. App. 1968); Dodd v. State, 232 So. 2d 235, 238 (Fla. App. 1970); Thomas v. State, 249 So. 2d 510, 512 (Fla. App. 1971).

Respondent also urges that a defendant has a right under Jackson v. Denno, 378 U. S. 368 (1964), to a hearing as to the voluntariness of a confession, even though the defendant does not object to its admission. But we do not read Jackson as creating any such requirement. In that case the defendant’s objection to the use of his confession was brought to the attention of the trial court, id., at 374, and n. 4, and nothing in the Court’s opinion suggests that a hearing would have been required even if it had not been. To the contrary, the Court prefaced its entire discussion of the merits of the case with a statement of the constitutional rule that was to prove disposi-tive — that a defendant has a “right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness .. ..” Id., at 376-377 (emphasis added). Language in subsequent decisions of this Court has reaffirmed the view that the Constitution does not require a voluntariness hearing absent some contemporaneous challenge to the use of the confession.¹⁰

We therefore conclude that Florida procedure did, consistently with the United States Constitution, require that respondent’s confession be challenged at trial or not at all, and thus his failure to timely object to its admission amounted to an independent and adequate state procedural ground which would have prevented direct review here. See Henry v. Mississippi, 379 U. S. 443 (1965). We thus come to the crux of this case. Shall the rule of Francis v. Henderson, supra, barring federal habeas review absent a showing of “cause” and “prejudice” attendant to a state procedural waiver, be applied to a waived objection to the admission of a confession at trial? ¹¹ We answer that question in the affirmative.

As earlier noted in the opinion, since Brown v. Allen, 344 U. S. 443 (1953), it has been the rule that the federal habeas petitioner who claims he is detained pursuant to a final judgment of a state court in violation of the United States Constitution is entitled to have the federal habeas court make its own independent determination of his federal claim, without being bound by the determination on the merits of that claim reached in the state proceedings. This rule of Brown v. Allen is in no way changed by our holding today. Rather, we deal only with contentions of federal law which were not resolved on the merits in the state proceeding due to respondent’s failure to raise them there as required by state procedure. We leave open for resolution in future decisions the precise definition of the “cause”-and-“prejudice” standard, and note here only that it is narrower than the standard set forth in dicta in Fay v. Noia, 372 U. S. 391 (1963), which would make federal habeas review generally available to state convicts absent a knowing and deliberate waiver of the federal constitutional contention. It is the sweeping language of Fay v. Noia, going far beyond the facts of the case eliciting it, which we today reject.¹²

The reasons for our rejection of it are several. The contemporaneous-objection rule itself is by no means peculiar to Florida, and deserves greater respect than Fay gives it, both for the fact that it is employed by a coordinate jurisdiction within the federal system and for the many interests which it serves in its own right. A contemporaneous objection enables the record to be made with respect to the constitutional claim when the recollections of witnesses are freshest, not years later in a federal habeas proceeding. It enables the judge who observed the demeanor of those witnesses to make the factual determinations necessary for properly deciding the federal constitutional question. While the 1966 amendment to § 2254 requires deference to be given to such determinations made by state courts, the determinations themselves are less apt to be made in the first instance if there is no contemporaneous objection to the admission of the evidence on federal constitutional grounds.

A contemporaneous-objection rule may lead to the exclusion of the evidence objected to, thereby making a major contribution to finality in criminal litigation. Without the evidence claimed to be vulnerable on federal constitutional grounds, the jury may acquit the defendant, and that will be the end of the case; or it may nonetheless convict the defendant, and he will have one less federal constitutional claim to assert in his federal habeas petition.¹³ If the state trial judge admits the evidence in question after a full hearing, the federal habeas court pursuant to the 1966 amendment to § 2254 will gain significant guidance from the state ruling in this regard. Subtler considerations as well militate in favor of honoring a state contemporaneous-objection rule. An objection on the spot may force the prosecution to take a hard look at its hole card, and even if the prosecutor thinks that the state trial judge will admit the evidence he must contemplate the possibility of reversal by the state appellate courts or the ultimate issuance of a federal writ of habeas corpus based on the impropriety of the state court’s rejection of the federal constitutional claim.

We think that the rule of Fay v. Noia, broadly stated, may encourage “sandbagging” on the part of defense lawyers, who may take their chances on a verdict of not guilty in a state trial court with the intent to raise their constitutional claims in a federal habeas court if their initial gamble does not pay off. The refusal of federal habeas courts to honor contemporaneous-objection rules may also make state courts themselves less stringent in their enforcement. Under the rule of Fay v. Noia, state appellate courts know that a federal constitutional issue raised for the first time in the proceeding before them may well be decided in any event by a federal habeas tribunal. Thus, their choice is between addressing the issue notwithstanding the petitioner’s failure to timely object, or else face the prospect that the federal habeas court will decide the question without the benefit of their views.

The failure of the federal habeas courts generally to require compliance with a contemporaneous-objection rule tends to detract from the perception of the trial of a criminal case in state court as a decisive and portentous event. A defendant has been accused of a serious crime, and this is the time and place set for him to be tried by a jury of his peers and found either guilty or not guilty by that jury. To the greatest extent possible all issues which bear on this charge should be determined in this proceeding: the accused is in the courtroom, the jury is in the box, the judge is on the bench, and the witnesses, having been subpoenaed and duly sworn, await their turn to testify. Society’s resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Any procedural rule which encourages the result that those proceedings be as free of error as possible is thoroughly desirable, and the contemporaneous-objection rule surely falls within this classification.

We believe the adoption of the Francis rule in this situation will have the salutary effect of making the state trial on the merits the “main event,” so to speak, rather than a “tryout on the road” for what will later be the determinative federal ha-beas hearing. There is nothing in the Constitution or in the language of § 2254 which requires that the state trial on the issue of guilt or innocence be devoted largely to the testimony of fact witnesses directed to the elements of the state crime, while only later will there occur in a federal habeas hearing a full airing of the' federal constitutional claims which were not raised in the state proceedings. If a criminal defendant thinks that an action of the state trial court is about to deprive him of a federal constitutional right there is every reason for his following state procedure in making known his objection.

The “cause”-and-“prejudice” exception of the Francis rule will afford an adequate guarantee, we think, that the rule will not prevent a federal habeas court from adjudicating for the first time the federal constitutional claim of a defendant who in the absence of such an adjudication will be the victim of a miscarriage of justice. Whatever precise content may be given those terms by later cases, we feel confident in holding without further elaboration that they do not exist here. Respondent has advanced no explanation whatever for his failure to object at trial,¹⁴ and, as the proceeding unfolded, the trial judge is certainly not to be faulted for failing to question the admission of the confession himself. The other evidence of guilt presented at trial, moreover, was substantial to a degree that would negate any possibility of actual prejudice resulting to the respondent from the admission of his inculpatory statement.

We accordingly conclude that the judgment of the Court of Appeals for the Fifth Circuit must be reversed, and the cause remanded to the United States District Court for the Middle District of Florida with instructions to dismiss respondent’s petition for a writ of habeas corpus..

It is so ordered.

1 No written statement was offered into evidence because Sykes refused to sign the statement once it was typed up. Tr. 35.

2 At one point early in the trial defense counsel did object to admission of any statements made by respondent to the police, on the basis that the basic elements of an offense had not yet been established. The judge ruled that the evidence could be admitted “subject to [the crime’s] being properly established later.” Id., at 16.

3 In a subsequent state habeas action, the Florida District Court of Appeals, Second District, stated that the admissibility of the postarrest statements had been raised and decided on direct appeal. Sykes v. State, 275 So. 2d 24 (1973). The United States District Court in the present action explicitly found to the contrary, App. to Pet. for Cert. A-21, and respondent does not challenge that finding.

4 Respondent expressly waived “any contention or allegation as regards ineffective assistance of counsel” at his trial. App. A-47. He advanced an argument challenging the jury instructions relating to justifiable homicide, but the District Court concluded in a single paragraph that the instructions had been adequate.

5 Rule 3.190 (i):

“Motion to Suppress a Confession or Admissions Illegally Obtained.

“(1) Grounds. Upon motion of the defendant or upon its own motion, the court shall suppress any confession or admission obtained illegally from the defendant.

“(2) Time for Filing. The motion to suppress shall be made prior to trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion or an appropriate objection at the trial.

“(3) Hearing. The court shall receive evidence on any issue of fact necessary to be decided in order to rule on the motion.”

6 For divergent discussions of the historic role of federal habeas corpus, compare: Hart, The Supreme Court, 1958 Term, Foreword: The Time Chart of the Justices, 73 Harv. L. Rev. 84 (1959); Reitz, Federal Habeas Corpus: Impact of an Abortive State Proceeding, 74 Harv. L. Rev. 1315 (1961); Brennan, Federal Habeas Corpus and State Prisoners: An Exercise in Federalism, 7 Utah L. Rev. 423 (1961); Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 468 (1963); Oaks, Legal History in the High Court — Habeas Corpus, 64 Mich. L. Rev. 451 (1966); Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 IT. Chi. L. Rev. 142, 170-171 (1970) ; and Note, Developments in the Law — Federal Habeas Corpus, 83 Harv. L. Rev. 1038 (1970).

7 28 U. S. C. §2254:

“(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

“(e) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.”

8 Not long after Fay, the Court in Henry v. Mississippi, 379 U. S. 443 (1965), considered the question of the adequacy of a state procedural ground to bar direct Supreme Court review, and concluded that failure to comply with a state contemporaneous-objection rule applying to the admission of evidence did not necessarily foreclose consideration of the underlying Fourth Amendment claim. The state procedural ground would be “adequate,” and thus dispositive of the case on direct appeal to the United States Supreme Court, only where “the State’s insistence on compliance with its procedural rule serves a legitimate state interest.” Id, at 447. Because, the Court reasoned, the purposes of the contemporaneous-objection rule were largely served by the motion for a directed verdict at the close of the State’s case, enforcement of the contemporaneous-objection rule was less than essential and therefore lacking in the necessary “legitimacy” to make it an adequate state ground.

Rather than searching the merits of the constitutional claim, though, the Court remanded for determination whether a separate adequate state ground might exist — that is, whether petitioner had knowingly and deliberately waived his right to object at trial for tactical or other reasons. This was the same type of waiver which the Court in Fay had said must be demonstrated in order to bar review on state procedural grounds in a federal habeas proceeding.

9 See n. 5, supra.

10 In Pinto v. Pierce, 389 U. S. 31, 32 (1967), the Court stated: ‘‘Jackson v. Denno, 378 U. S. 368 (1964), held that a defendant's constitutional rights are violated when his challenged confession is introduced without a determination by the trial judge of its voluntariness after an adequate hearing. . . .”

In Lego v. Twomey, 404 U. S. 477, 478 (1972), we summarized the Jackson holding as conferring the right to a voluntariness hearing on “a criminal defendant who challenges the voluntariness of a confession” sought to be used against him at trial.

11 Petitioner does not argue, and we do not pause to consider, whether a bare allegation of a Miranda violation, without accompanying assertions going to the actual voluntariness or reliability of the confession, is a proper subject for consideration on federal habeas review, where there has been a full and fair opportunity to raise the argument in the state proceeding. See Stone v. Powell, 428 U. S. 465 (1976). We do not address the merits of that question because of our resolution of the case on alternative grounds.

12 We have no occasion today to consider the Fay rule as applied to the facts there confronting the Court. Whether the Francis rule should preclude federal habeas review of claims not made in accordance with state procedure where the criminal defendant has surrendered, other than for reasons of tactical advantage, the right to have all of his claims of trial error considered by a state appellate court, we leave for another day.

The Court in Fay stated its knowing-and-deliberate-waiver rule in language which applied not only to the waiver of the right to appeal, but to failures to raise individual substantive objections in the state trial. Then, with a single sentence in a footnote, the Court swept aside all decisions of this Court “to the extent that [they] may be read to suggest a standard of discretion in federal habeas corpus proceedings different from what we lay down today 372 U. S., at 439 n. 44. We do not choose to paint with a similarly broad brush here.

13 Responding to concerns such as these, MR. Justice Powell’s concurring opinion last Term in Estelle v. Williams, 425 U. S. 501, 513 (1976), proposed an “inexcusable procedural default” test to bar the availability of federal habeas review where the substantive right claimed could have been safeguarded if the objection had been raised in a timely manner at trial.

14 In Henry v. Mississippi, 379 U. S., at 451, the Court noted that decisions of counsel relating to trial strategy, even when made without the consultation of the defendant, would bar direct federal review of claims thereby forgone, except where “the circumstances are exceptional.”

Last Term in Estelle v. Williams, supra, the Court reiterated the burden on a defendant to be bound by the trial judgments of his lawyer. “Under our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney.” 425 U. S., at 512.