381 U.S.

336
85 S.Ct. 1486
14 L.Ed.2d 422

Paul V. CASE, Petitioner,

v.
STATE OF NEBRASKA.
No. 843.
Argued April 28, 1965.
Decided May 24, 1965.

Daniel J. Meador, Charlottesville, Va., for petitioner.

Melvin Kent Kammerlohr, Lincoln, Neb., for the State of Neb.
PER CURIAM.

Petitioner sought a writ of habeas corpus in the District Court for Lancaster
County, Nebraska, alleging that he was unconstitutionally denied the assistance
of counsel when he entered a plea of guilty in that court to a charge of burglary.
The trial court dismissed the petition without a hearing, and filed no opinion.
The Nebraska Supreme Court affirmed. 177 Neb. 404, 129 N.W.2d 107. The
Supreme Court's opinion recognized that petitioner's allegations, if true, would
establish a violation of the Federal Constitution. 177 Neb., at 410, 129 N.W.2d,
at 111. The Supreme Court held, however, that, in Nebraska, 'Habeas corpus is
not available to discharge a prisoner from a sentence of penal servitude if the
court imposing it had jurisdiction of the offense and of the person charged with
the crime, and the sentence was within the power of the court.' 177 Neb., at
412, 129 N.W.2d, at 112. We granted certiorari, 379 U.S. 958, 85 S.Ct. 672, 13
L.Ed.2d 554, to decide whether the Fourteenth Amendment requires that the
States afford state prisoners some adequate corrective process for the hearing
and determination of claims of violation of federal constitutional guarantees.

After certiorari was granted, the Nebraska Legislature enacted a statute

providing a postconviction procedure. Neb.Leg. Bill 836, Seventy-fifth
Session, effective April 12, 1965. On its face, the statute provides for a hearing
of petitions such as this one, alleging denial of federal constitutional rights.

Therefore, the judgment is vacated and the cause remanded to the Nebraska
Supreme Court for reconsideration in light of the supervening statute.
3

It is so ordered.

Judgment vacated and cause remanded.

Mr. Justice CLARK, concurring.

As the Court points out, we granted certiorari in this case 'to decide whether the
Fourteenth Amendment requires that the States afford state prisoners some
adequate corrective process for the hearing and determination of claims of
violation of federal constitutional guarantees.' Happily, Nebraska in the interim
has adopted just such a procedure thus obviating the necessity of our passing
upon the question.

It should be pointed out, however, that as early as 1949 this Court in Young v.
Ragen, 337 U.S. 235, 69 S.Ct. 1073, 93 L.Ed. 1333, articulated the principle
that the States must afford prisoners some 'clearly defined method by which
they may raise claims of denial of federal rights.' Id., at 239, 69 S.Ct., at 1074,
93 L.Ed. 1333. But compare Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340,
79 L.Ed. 791 (1935). In stating that proposition the Court noted: 'The doctrine
of exhaustion of state remedies, to which this Court has required the scrupulous
adherence of all federal courts * * * presupposes that some adequate state
remedy exists. We recognize the difficulties with which the Illinois Supreme
Court is faced in adapting available state procedures to (this) requirement * * *.
Nevertheless, that requirement must be met.' Young v. Ragen, supra, at 238
239, 69 S.Ct. at 10741075.

Thereafter, the Illinois Post-Conviction Hearing Act was adopted. 1 It was

followed by passage of a statute in North Carolina in 1951 which was 'modeled'
on the Illinois Act.2 Miller v. State, 237 N.C. 29, 51, 74 S.E.2d 513, 528
(1953). Nebraska is the seventh State to adopt such a statute since Young v.
Ragen, supra. 3 There exists in some States a wide variety of procedural
techniques that have been used to deal with due process attacks on criminal
convictions, i.e., basic common-law remedies such as habeas corpus, coram
nobis and delayed motions for new trial. But the great variations in the scope
and availability of such remedies result in their being entirely inadequate.

As a consequence there has been a tremendous increase in habeas corpus

applications in federal courts. Indeed, in the Supreme Court alone they have

increased threefold in the last 15 years. This has brought about much public
agitation and debate over proposed limitations of the habeas corpus jurisdiction
of federal courts. The necessity for such proposals has been based on various
grounds, including that of federal-state comity; inordinate delay in the
administration of criminal justice in the state courts; and the heavy burden on
the federal judiciary. None of these will survive careful scrutiny.
10

Strangely enough there has been little light thrown on the necessity for more
effective postconviction remedies in the State. In 1958 the Burton Committee4
reported out a preliminary draft of findings in which it stated

11

'that the law of state post-conviction process in many states was wholly
inadequate to cope with the demands now being placed upon it. In some
jurisdictions prisoners were altogether precluded from direct access to the
courts. (Cochran v. State of Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed.
1453 (1942); Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262,
95 L.Ed. 215 (1951).) * * * In many more, the procedures recognized by state
law failed to provide genuine opportunities for testing constitutional issues of
the most numerous and important types. The result was that prisoners often
failed to obtain hearings on their allegations in the state courts. This, in turn,
increased the number of petitions in state and federal courts and was generally
productive of frustrations in all persons concerned with the process.'5

12

Believing that the practical answer to the problem is the enactment by the
several States of postconviction remedy statutes I applaud the action of
Nebraska. This will enable prisoners to 'air out' their claims in the state courts
and will stop the rising conflict presently being generated between federal and
state courts. This has proven true in Illinois where it is reported that federal
applications from state prisoners dropped considerably after its Act was
adopted. I understand that the Illinois Legislature is now considering the
enlargement of the five-year limitations period of its present Act to a 20-year
period. The consensus is that this will solve the problem entirely in Illinois,
which was originally the 'sore spot' of the Nation in this regard.

13

I hope that the various States will follow the lead of Illinois, Nebraska,
Maryland, North Carolina, Maine, Oregon and Wyoming in providing this
modern procedure for testing federal claims in the state courts and thus relieve
the federal courts of this ever-increasing burden.

14

Mr. Justice BRENNAN, concurring.

15

The petitioner entered his plea of guilty on April 18, 1963, one month after this
Court's decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9
L.Ed.2d 799, holding the Sixth Amendment guarantee of counsel applicable to
state prosecutions by virtue of the Fourteenth Amendment.1 The Nebraska
Supreme Court followed prior Nebraska decisions in holding that, in a habeas
corpus action brought by a convicted prisoner, judicial inquiry is limited to the
jurisdiction of the convicting court over the offense and over the person of the
accused, and to the question whether the sentence imposed was within the
power of the court.2 The State conceded in its response to the petition for
certiorari that habeas corpus was unavailable to hear petitioner's claim and that
petitioner had no other remedy in the state courts. 3

16

On oral argument, counsel appointed for petitioner, see 379 U.S. 995, 85 S.Ct.
722, conceded the relevancy of the new Nebraska postconviction procedure,4
but contended that petitioner was nevertheless entitled to a declaration that he
had been unconstitutionally denied a hearing by the Nebraska courts, and to a
reversal of the judgment of the Nebraska Supreme Court and a mandate
directing that by some procedure the petitioner's claim be adequately
adjudicated.5

17

Petitioner concedes that the Court's practice has been to remit prisoners to their
federal habeas corpus remedy. See, e.g., Jennings v. Illinois, 342 U.S. 104, 72
S.Ct. 123, 96 L.Ed. 119. But he contends that substituting federal for state
corrective process, instead of directing the State itself to meet its obligation, is a
disservice to sound principles of federalism.6 He points to the vast increase in
the number of federal habeas corpus applications by state prisoners as evidence
that lack of adequate state procedures has put an intolerable strain on the federal
writ and has brought about mounting friction between state and federal courts.
See Henry v. State of Mississippi, 379 U.S. 443, 453, 85 S.Ct. 564, 570. In
short, he contends that if the evolution in the coverage of the Fourteenth
Amendment and in the scope of federal habeas corpus, see Fay v. Noia 372
U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, is not to pull the federal judiciary
increasingly into state criminal administration, the States must provide broader
procedures more hospitable to federal constitutional claims.

18

The desirability of minimizing the necessity for resort by state prisoners to

federal habeas corpus is not to be denied. Our federal system entrusts the States
with primary responsibility for the administration of their criminal laws. The
Fourteenth Amendment and the Supremacy Clause make requirements of fair
and just procedures an integral part of those laws, and state procedures should
ideally include adequate administration of these guarantees as well.7 If, by

effective processes the States assumed this burden, the exhaustion requirement
of 28 U.S.C. 2254 (1958 ed.) would clearly promote state primacy in the
implementation of these guarantees. Of greater importance, it would assure not
only that meritorious claims would generally be vindicated without any need
for federal court intervention, but that nonmeritorious claims would be fully
ventilated, making easier the task of the federal judge if the state prisoner
pursued his cause further. See Townsend v. Sain, 372 U.S. 293, 312318, 83
S.Ct. 745, 9 L.Ed.2d 770. Greater finality would inevitably attach to state court
determinations of federal constitutional questions, because further evidentiary
hearings on federal habeas corpus would, if the conditions of Townsend v. Sain
were met, prove unnecessary.
19

None can view with satisfaction the channeling of a large part of state criminal
business to federal trial courts. If adequate state procedures, presently all too
scarce,8 were generally adopted, much would be done to remove the irritant of
participation by the federal district courts in state criminal procedure. The 1954
Report of the Special Committee on Habeas Corpus of the Conference of Chief
Justices pointed the way in urging that 'State statutes should provide a
postconviction process at least as broad in scope as existing Federal statutes
under which claims of violation of constitutional right asserted by State
prisoners are determined in Federal courts under the Federal habeas corpus
statutes,' and recommending provisions for hearing, a record, fact findings and
conclusions of law. H.R.Rep.No.1293, 85th Cong., 2d Sess., p. 7 et seq.

20

These are similar to other suggestions of desirable attributes of a state

postconviction procedure which should reduce the necessity for exercise of
federal habeas corpus jurisdiction.9 The procedure should be swift and simple
and easily invoked. It should be sufficiently comprehensive to embrace all
federal constitutional claims. In light of Fay v. Noia, supra, it should eschew
rigid and technical doctrines of forfeiture, waiver, or default. See Douglas v.
Alabama, 380 U.S. 415, 422423, 85 S.Ct. 1074; Henry v. Mississippi, supra.
It should provide for full fact hearings to resolve disputed factual issues, and for
compilation of a record to enable federal courts to determine the sufficiency of
those hearings. Townsend v. Sain, supra. It should provide for decisions
supported by opinions, or fact findings and conclusions of law, which disclose
the grounds of decision and the resolution of disputed facts. Provision for
counsel to represent prisoners, as in 4 of the Nebraska Act, would enhance the
probability of effective presentation and a proper disposition of prisoners'
claims.

21

But there is no occasion in this case to decide whether due process requires the
States to provide corrective process. The new statute on its face is plainly an

adequate corrective process. Every consideration of federalism supports our

conclusion to afford the Nebraska courts the opportunity to say whether that
process is available for the hearing and determination of petitioner's claim.

Ill.Rev.Stat., c. 38, 12211227 (1963).

N.C.Gen.Stat. 1521715222 (Supp. 1963).

Maryland, Maine, Oregon and Wyoming have passed similar legislation.

Md.Ann. Code, Art. 27, 645A to 645J (Supp. 1964); Me.Rev.Stat.Ann., c.
126, 1A to 1G (Supp.1963); Ore.Rev.Stat. 138.510138.680
(1963); Wyo.Stat.Ann. 7408.1 to 7408.8 (1963 Cum.Supp.). It should
be noted, however, that six other States have adopted similar procedures by rule
of court. See Alaska Sup.Ct. Rule 35(b); Del.Super.Ct.Crim.Proc. Rule 35,
Del.C.Ann.; Fla. Rules Crim.Proc. 1, F.S.A. ch. 924 Appendix; Ky.Rules
Crim.Proc. 11.42; Mo.Sup.Ct. Rule 27.26, V.A.M.R.; N.J.Crim.Prac. Rules of
Super. and County Cts., Rule 3:10A2.

The late Mr. Justice Burton of revered memory was Chairman of the
Committee on Post Conviction Remedies of the American Bar Association's
Section of Judicial Administration. In August 1958 it circulated a preliminary
draft of a study entitled Effective State Post-Conviction ProceduresTheir
Nature and Essentialities, which was prepared by the Seminar in Criminal
Procedure of the University of Chicago Law School under the direction of
Professor Francis A. Allen.

Id., at 23.

The petition for habeas corpus reads:

'Petitioner, Paul Vernon CASE, was sentenced to five (5) years in the Nebraska
Penal and Correctional Complex on May 3, 1963, A.D.
'Petitioner was 'fast talked' and forcibly coerced into waiving his rights (U.S.
Constitutional Rights) to have advice and counsel; to have a Preliminary
Hearing, and to plead not-guilty.
'Mr. William D. Blue told Petitioner he, Petitioner, would be charged with
being 'An Habitual Criminal' if he did not waive these rights. He, Petitioner was
held in Solitary Confinement in City Jail, until such time as he would agree
under cruel and unusual circumstances.

'The basic rights waived by this Petitioner are guaranteed him under the Sixth
Amendment of the U.S. Constitution and are so
fundamental and essential to a fair trial that they are made obligatory upon the
States, All states, by way of the Fourteenth Amendment. For reference see
Gideon v. Wainwright in the U.S. Supreme Court. October 1962, Term, No.
155; all Justices concurring.'
2

See Jackson v. Olson, 146 Neb. 885, 893894, 22 N.W.2d 124, 129130,
165 A.L.R. 932; In re Dunn, 150 Neb. 669, 35 N.W.2d 673; Hawk v. Olson,
145 Neb. 306, 16 N.W.2d 181, rev'd 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61,
on remand, 146 Neb. 875, 22 N.W.2d 136.

The response stated: 'For all practical purposes, there is no collateral remedy
available in the Nebraska courts to a state prisoner who alleges that a violation
of his federal constitutional rights occurred in connection with his conviction
and whose claim has not yet been considered by the state courts, unless the
prisoner's claim is predicated upon a lack of jurisdiction of the sentencing court
over the offense or over the person of the accused.'
In addition to this concession that the State provided no remedy whatever,
petitioner cites Carlsen v. State, 129 Neb. 84, 261 N.W. 339, as authority for
the unavailability of coram nobis; Neb.Rev.Stat. 292103 (1964 Reissue), as
barring a motion for a new trial; and Neb.Rev.Stat. 251912 (1964 Reissue),
as barring an appeal.

The new statute, Neb.Leg. Bill 836, 75th Session, effective April 12, 1965,
provides:
'Sec. 1. A prisoner in custody under sentence and claiming a right to be released
on the ground that there was such a denial or infringement of the rights of the
prisoner as to render the judgment void or voidable under the Constitution of
this state or the Constitution
of the United States, may file a verified motion at any time in the court which
imposed such sentence, stating the grounds relied upon, and asking the court to
vacate or set aside the sentence.
'Unless the motion and the files and records of the case show to the satisfaction
of the court that the prisoner is entitled to no relief, the court shall cause notice
thereof to be served on the county attorney, grant a prompt hearing thereon,
determine the issues and make findings of fact and conclusions of law with
respect thereto. If the court finds that there was such a denial or infringement of
the rights of the prisoner as to render the judgment void or voidable under the

Constitution of this state or the Constitution of the United States, the court shall
vacate and set aside the judgment and shall discharge the prisoner or resentence
him or grant a new trial as may appear appropriate. Proceedings under the
provisions of this act shall be civil in nature. Costs shall be taxed as in habeas
corpus cases.
'A court may entertain and determine such motion without requiring the
production of the prisoner, whether or not a hearing is held. Testimony of the
prisoner or other witnesses may be offered by deposition. The court need not
entertain a second motion or successive motions for similar relief on behalf of
the same prisoner.
'Sec. 2. An order sustaining or overruling a motion filed under the provisions of
this act shall be deemed to be a final judgment, and an appeal may be taken to
the Supreme Court therefrom as provided for in appeals in civil cases;
Provided, that a prisoner may in the discretion of the Supreme Court upon
application to the court be released on such recognizance as the Supreme Court
shall fix pending the determination of the appeal.
'Sec. 3. The remedy provided by this act is cumulative and is not intended to be
concurrent with any other remedy existing in the courts of this state. Any
proceeding filed under the provisions of this act which states facts which if true
would constitute grounds for relief under another remedy shall be dismissed
without prejudice.
'Sec. 4. The district court may appoint an attorney or attorneys, not exceeding
two, to represent the prisoners in all proceedings under the provisions of this
act and fix their compensation as provided in section 291803, Reissue
Revised Statutes of Nebraska, 1943.'
5

The petitioner states in his brief:

'At this stage of the litigation the Court need not pass on the steps to be taken if
the Nebraska court should fail to comply with a mandate requiring corrective
process for petitioner. It might be suggested, however, that the problem
essentially is no different from actual or potential disobedience of the mandate
in many other cases remanded by this Court. If on the remand Nebraska failed
to make corrective process available, petitioner could return here with a fresh
petition for certiorari. This Court could then order petitioner's discharge from
custody. That is the ultimate sanction behind the due process requirement of
state corrective process. See Dowd v. United States ex rel. Cook, 340 U.S. 206,
209210, 71 S.Ct. 262, 263264, 95 L.Ed. 215.'
In support of this contention, the petitioner argues that the Supremacy Clause

and the fundamental Fourteenth Amendment right to a hearing constitutionally

require the States to afford corrective judicial process to remedy federal
constitutional defects in their criminal prosecutions, citing Frank v. Mangum,
237 U.S. 309, 335, 35 S.Ct. 582, 590, 59 L.Ed. 969; Moore v. Dempsey, 261
U.S. 86, 91, 43 S.Ct. 265, 266, 67 L.Ed. 543; Mooney v. Holohan, 294 U.S.
103, 113, 55 S.Ct. 340, 342, 79 L.Ed. 791; New York ex rel. Whitman v.
Wilson, 318 U.S. 688, 690, 63 S.Ct. 840, 841, 87 L.Ed. 1083; Carter v. Illinois,
329 U.S. 173, 175176, 67 S.Ct. 216, 218, 219, 91 L.Ed. 172; Foster v.
Illinois, 332 U.S. 134, 139, 67 S.Ct. 1716, 1719, 91 L.Ed. 1955; Taylor v.
Alabama, 335 U.S. 252, 272, 68 S.Ct. 1415, 1424, 92 L.Ed. 1935 (concurring
opinion); Young v. Ragen, 337 U.S. 235, 238239, 69 S.Ct. 1073, 1074, 93
L.Ed. 1333. In addition to the cases cited involving criminal convictions,
petitioner cites as other applications of the general principle General Oil Co. v.
Crain, 209 U.S. 211, 228, 28 S.Ct. 475, 481, 52 L.Ed. 754; Kenney v. Supreme
Lodge, 252 U.S. 411, 415, 40 S.Ct. 371, 372, 64 L.Ed. 638; Ward v. Board of
County Com'rs of Love County, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751;
McKnett v. St. Louis & S.F.R. Co., 292 U.S. 230, 54 S.Ct. 690, 78 L.Ed. 1227;
Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967. He also argues that,
since Nebraska allowed habeas corpus to attack convictions for jurisdictional
defects based on Nebraska law, the Nebraska Supreme Court unconstitutionaly
discriminated against federal law by refusing habeas corpus for jurisdictional
defects based on the Fourteenth Amendment. For the proposition that a State
may not discriminate against rights arising under federal laws, petitioner cites
McKnett v. St. Louis & S.F.R. Co., supra, and Testa v. Katt, supra, and for the
proposition that an unconstitutional denial of counsel is a jurisdictional defect
relies on Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.
6

Petitioner refers to Young v. Ragen, supra, where, in vacating the denial of state
habeas corpus, the Court said: 'If there is now no post-trial procedure by which
federal rights may be vindicated in Illinois, we wish to be advised of that fact
upon remand of this case.' 337 U.S., at 239, 69 S.Ct. at 1075. He also cites
Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Boles v.
Stevenson, 379 U.S. 43, 85 S.Ct. 174, 13 L.Ed.2d 109; Henry v. State of
Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408; and Note, Effect of
the Federal Constitution in Requiring State Post-Conviction Remedies, 53
Col.L.Rev. 1143 (1953).

Dean Griswold of the Harvard Law School, in an address, 'The States and
Criminal Law,' given on May 13, 1965, to the Cleveland Bar Association, said:
'For, after all, the basic responsibility for the enforcement of the criminal law
remains with the States. The States are, or should be, as much concerned with
high standards as is the Federal government. The State should, in my view,

welcome the determinations of the Supreme Court that the high standards
prescribed by our Federal Constitution are to be taken seriously and should be
enforced. What is needed now is for the States to accept this responsibility, and
to adopt means to carry it out. With proper explanation and understanding, this
can, I believe, be done without impairing our enforcement of the criminal law.
When the States do fully meet this responsibility we will all be better off, and
we will more nearly have realized the potentialities of our Great Federal form
of Government.'
8

The Uniform Post-Conviction Procedure Act, 9B Uniform Laws Ann. 352

359, designed to provide adjudication of federal claims, has had but slight
influence in the States. Arkansas adopted the Uniform Act in 1957, but repealed
it two years later. 2 Acts of Arkansas (1959) 11601161. Six States in addition
to Nebraska have adopted their own statutes. Ill.Rev.Stats., c. 38, 1221 to
122 7 (1963); Me.Rev.Stat.Ann., c. 126, 1A to 1G (Supp.1963);
Md.Ann.Code, Art. 27, 645A to 645J (Supp.1964); N.C.Gen.Stat. 15
217 to 15222 (Supp. 1963); Ore.Rev.Stat. 138.510138.680 (1963);
Wyo.Stat.Ann. 7408.1 to 7408.8 (1963 Cum.Supp.). Procedures have
been adopted by rule of court in six States. Alaska Sup.Ct. Rule 35(b);
Del.Super.Ct.Crim.Proc. Rule 35(a); Fla.Rules Crim.Proc. 1; Ky.Rules
Crim.Proc. 11.42; Mo.Sup.Ct. Rule 27.26; N.J.Crim.Prac. Rules of Super. and
County Cts., Rule 3:10A 2. Some state courts are apparently broadening
existing postconviction remedies by judicial construction. See, e.g., People v.
Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965); State ex rel.
Banach v Boles, 141 W.Va. 850, 858, 131 S.E.2d 722, 728 (1963); Hunt v.
Warden, 335 F.2d 936, 941942 (C.A.4th Cir.) (discussing the expanding
Maryland remedy). See also the views expressed in People v. Wilson, 18
App.Div.2d 424, 430, 239 N.Y.S.2d 900, 903; Ex parte Aaron, 275 Ala. 377,
381382, 155 So.2d 334, 337338 (dissenting opinion); Donnell v. Nash,
323 F.2d 850 (C.A.8th Cir.); Cobb v. Balkcom, 339 F.2d 95, 100 (C.A.5th
Cir.). Proposals that the States make their postconviction procedures coextensive with federal habeas corpus are found in Meador. Accommodating
State Criminal Procedure and Federal Postconviction Review, 50 A.B.A.J. 928
(1964); National Assn. of Attys. Gen. Conference Proceedings, 1964, pp. 42
43 (remarks of Arthur J. Sills, Atty. Gen. of New Jersey), 149150 (resolution
of the Association); Brennan, Some Aspects of Federalism, 39 N.Y.U.L.Rev.
945, 957959 (1964).

See Meador, supra, 50 A.B.A.J., at 929930, Brennan, supra, 39

N.Y.U.L.Rev., at 958959; cf. Report No. 23, ABA Section of Criminal Law
(Mid-Winter Meeting, Feb. 1965) 5, 7.