Harris v. Nelson

PETITIONER:Harris
RESPONDENT:Nelson
LOCATION:United States District Court for the District of Columbia

DOCKET NO.: 199
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 394 US 286 (1969)
ARGUED: Dec 09, 1968
DECIDED: Mar 24, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – December 09, 1968 in Harris v. Nelson

Earl Warren:

Number 199, George B. Harris, Judge of United States District Court for the Northern District of California, petitioner, versus Louis S. Nelson, Warden.

Mr. Pottinger.

J. Stanley Pottinger:

Mr. Chief Justice and may it please the Court.

This case presents the question of whether or not a District Court has the power or the authority to order the use of discovery interrogatories in a habeas corpus proceeding.

This particular question stems from a habeas corpus proceeding below, instituted by the petitioner, Mr. Alfred Walker.

Mr. Walker was arrested and his premises were searched on the basis, and solely on the basis, of information supplied to the Oakland police officers by an informant, a lady named Ms. Frances Jenkins.

The record indicated, however, so serious a question as to the reliability of the informant which is a sole basis which could sustain — constitutionally sustain probable cause.

The Chief Judge Harris ordered counsel to be appointed in an evidentiary hearing in this sole question to be held.

Shortly prior to the evidentiary hearing, petitioner Walker propounded a short set of interrogatories to the respondent inquiring into the possible record that would either establish her reliability or unreliability on the part of the informant.

The respondent objected to these interrogatories not on the ground that they were inappropriate, but on the ground that the District Court had no authority for permitting their use in a habeas corpus proceeding.

The matter was argued and Chief Judge Harris ordered answers to the interrogatories.

The respondent immediately sought leave to file a petition for mandamus or prohibition in the Ninth Circuit, and such leave was granted, thereby, postponing the evidentiary hearing.

The matter then was briefed and argued in the Ninth Circuit and the Ninth Circuit Court of Appeals did, in fact, enter an order vacating the Chief Judge Harris’ order.

Petitioner Harris then petitioned for writ of certiorari in the cases now before you on a writ which issued to the Ninth Circuit.

In considering any applicability of discovery procedures to habeas corpus, I think it’s essential to bear in mind one indisputable premise, and that is that the constitutional and historic validity of the writ of habeas corpus today depends, on a large part, upon the District Court’s ability to fulfill its duty to inquire into disputed issues of fact.

As this Court stated in the landmark case of Townsend against Sain, the determinations of fact issues and habeas proceedings today is the typical and not the rare case.

By giving this duty, the question arises in this case and in other habeas proceedings as to what rules, what guidelines, and what procedures a District Court could look to in order to fulfill this fact finding task.

We have suggested two basic guidelines, two basic areas, two grounds which the Court might look to.

The first is the application of suitable or appropriate federal rules of civil procedure and the second is an application of appropriate procedures pursuant to the Court’s inherent power.

I should first like to discuss the applicability of the federal rules of civil procedure since we believe that the controlling rule, that is Rule 81 (a) (2), support such an application and because we believe that an application of appropriate rules is preferable and clearly preferable to a use of procedures pursuant to the Court’s inherent power.

Abe Fortas:

May I ask you whether there’s any indication on the record here as to which theory the District Court used in ordering that the interrogatories be answered?

J. Stanley Pottinger:

No, there is not, Mr. Justice Fortas.

Abe Fortas:

You don’t know as we —

J. Stanley Pottinger:

No —

Abe Fortas:

In this case, whether that the Court felt compelled to do so by the rules or whether the Court was acting as a matter discretionary power?

J. Stanley Pottinger:

No, there is no indication whatsoever.

All that we can surmise from the record is that the interrogatories were initially propounded pursuant to federal rules.

However, at the argument on this matter, the Court did not make a ruling on the federal rules.

The Court did take the matter under submission rather than ruling from the bench, and when the order of the Court was entered, it deleted any reference to the federal rules.

The order simply states that interrogatories are to be answered, and it did not say pursuant to the federal rules or pursuant to inherent power.

J. Stanley Pottinger:

We believe, of course, that, therefore, the rule — the ruling of the Court is sustainable on any valid ground and my understanding of the jurisdiction of a writ of prohibition is that it can only issue if there is no jurisdiction whatsoever to sustain the order in question.

We believe that there are two interpretations that Rule 81 (a) (2) will support.

One is the interpretation given by the Ninth Circuit and which is urged upon this Court by respondent.

And, the second is a broader interpretation which is urged upon the Court by petitioner.

Rule 81 (a) (2) provides that there is no doubt that some of the rules of federal procedure are applicable to habeas corpus, but it provides that only those rules will be applicable to the extent that the practice in such proceedings is not set forth in statutes of the United States and, secondly, that the practice is here to for — conform to the practice in civil actions.

The first requirement is not an objection that we concede in this case because there are no statutes governing the practice presently before the Court.

It is — and, indeed, the Ninth Circuit did not have a problem with this first requirement.

It is the second requirement that is in issue.

Under the Ninth Circuit’s interpretation, the Court has read the rule here to require a showing that there is an actual use of the specific procedure, in this case a discovery interrogatory in civil actions prior to 1938.

And, that the exact same procedure was reported and used in habeas corpus proceedings prior to 1938 and in that event, and only in that event, says the Ninth Circuit, can rules — appropriate rules be applied today.

We believe that there is no reason to read the rules so restrictively.

Indeed, the language does not necessarily dictate this interpretation, nor does the statutory history which actually is very unelucidating on the entire question, but it does not dictate this interpretation either.

The language of the statute, frankly, doesn’t make sense under this interpretation because the result is to make only those rules or only those procedures applicable which were already applicable prior to 1938.

In that extent — to that extent, of course, that procedure would continue on anyway after the promulgation of the federal rules, or the alternative under this narrow interpretation is to make no rules applicable.

In which case, there was no reason for the provision to be placed in the federal rules in the first place.

So, even on its face, this particular interpretation does not make sense.

But, a more important reason for rejecting the interpretation is the result that would flow from this interpretation.

The result would be to freeze all procedures which are available in habeas corpus to those procedures available in the year 1938, and the entire history of the writ of habeas corpus has been one of growth, of flexibility, of permitting the Courts to meet the expanded needs of the writ itself and, certainly, those needs have greatly expanded under the issues of this Court, under the habeas corpus statutory scheme provided by Congress.

And, we believe it would be an intolerable restraint upon the District Courts to be restricted simply to those narrow and rather formalistic procedures available in the year 1938.

Under our interpretation of Rule 81 (a) (2), we read the statute to require only a showing that there was a practice in habeas corpus conforming to a practice in civil actions in a more general sense.

We mean to read it — we read it to say that if there was a general format applicable on habeas corpus similar to the general format in civil proceedings, then those rules which are suitable to or which facilitate that general form that are available today under the rules.

In other words, the general format that did apply to habeas corpus prior to 1938 and to civil proceedings prior to 1938 was the development and trial of issues of fact by a Court.

Those two practices were identical or did exist in both civil and habeas proceedings and we feel that, to that extent, rules — in the federal rules of civil procedure which facilitate that practice should be available.

This, of course, would exclude, for instance, rules in ci — civil rules governing trials by jury, since there never was a trial by jury in habeas proceedings and there should not be such a trial today, but those rules which are suitable, we believe, are supported by the statute and sound policy dictates their use today.

For the same reasons, the offers of the restrictive practice that I’ve mentioned on the part of the Ninth Circuit, the expanded duties under the habeas corpus decisions of this Court would require the Court to utilize appropriate rules to that end.

And, indeed, we point out in our brief that this is the — the vast majority of Courts in this country who have utilized rules in habeas corpus have indeed adopted this interpretation and no fewer than six circuits in this country, over a period of 20 years, have adopted various rules of the federal rules of civil procedure appropriate to the task before them.

Five circuits of which, have adopted discovery rules.

All of the discovery rules of civil procedure have been used in habeas proceedings and reported other than, I believe it is, request for admissions.

I don’t believe we’ve found a case on that particular proceeding, but all other rules have been used, including Rule 35.

William J. Brennan, Jr.:

I mean — you mean, full sweep of the discovery rules?

J. Stanley Pottinger:

Yes, Your Honor, every discovery rule, other than, I believe, one has been reported in use in District Courts or in Circuit Court in this country.

William J. Brennan, Jr.:

A full sweep of the rule as ordinarily applicable to a Civil Court?

J. Stanley Pottinger:

Well, the full extent of the rules but, when you say full sweep, it doesn’t necessarily mean that it would work the same way it would in a civil proceeding.

In other words, there are some distinctions in habeas and civil proceedings which exist and which, once the rule is applied, would not necessarily let it be applied to the full extent.

What I’m saying is that all of the rules can be —

William J. Brennan, Jr.:

Can you illustrate that?

J. Stanley Pottinger:

Yes, this particular problem arises from the argument by the state that abuse would occur if certain of the rules, the discovery rules, were permitted in habeas corpus.

I think that the basic objection by the state is one of abuse.

The state contends that most habeas petitioners today are proceeding in form of paupers.

They’re indigents, and that’s true.

We don’t dispute that.

And, they contend that if such a person who is unrestraint by litigation costs would have the ability to use discovery rules, he would greatly burden the state out of an attempt to embarrass them, to burn them for its own sake, to use the rules in bad faith.

For this reason, the state contends that it will be forced to attend hearings to obtain protective orders that it would not otherwise be required to attend or to seek under the present habeas statutory scheme.

But, this particular argument simply does not hold water.

First of all, if you look at the habeas corpus statutory sch —

William J. Brennan, Jr.:

Now that — that’s not an unfamiliar argument, anyway, in a matter of discovery generally, is it?

J. Stanley Pottinger:

That’s correct, Mr. Justice Brennan.

It is not an unfamiliar argument and we think that, initially, the way that argument has been met since — in the last 30 years can be met here, and that is that the rules themselves provide completely adequate protection, specifically Rule 30 of the federal rules of civil procedure which permits the Court on its own motion or by an ex parte motion or an argued motion to enter appropriate protective orders.

Pulling aside from that though, it’s important to note that the habeas corpus statutory scheme and the federal rules when integrated, as they presently exist, would still not permit any discovery by any petitioner until the matter has been reviewed by a District Court under present law.

Now, this occurs for a simple reason.

Section 1915 of Title 28 provides that a form of pauperous proceeding cannot commence until an order of the Court permits it to commence.

Normally, that order is entered in a show cause order when the District Court has reviewed the request to proceed, along with the petition itself.

Rule 33 provides that there can be no discovery without special leave of the Court for 10 days following the commencement of the action, in other words, following a determination by the District Court that the action does or does not have merit in the entrance of a show cause order.

Rule 26, incidentally, governing depositions, provides an even longer moratorium of 20 days before any discovery can commence.

The result is that any petitioner, who submits a petition in form of pauperous, or otherwise, cannot even have the action commence under Rule 33 or the federal rules until the District Court has looked at the merits.

Of course, if it’s an unmeritorious, frivolous, our burdensome petition, it will be dismissed as it is today and no discovery can ensue.

If, on the other hand, the petition has merit and the Court determines to enter a show cause order, Section 2243 of Title 28 provides that the state must file a return within three days of that order — five days of that order, and a hearing on the entire matter is to be held three days thereafter.

So, that even — even if the matter proceeds, there will be a full hearing within the 10-day period that Rule 33 would commence within 8 days.

At that particular hearing, and again we point out that there could be no discovery even attempted at this point, the Court will be permitted, in fact it will have several choices.

It can either issue the writ, at which point discovery would be immaterial.

J. Stanley Pottinger:

It can deny the writ, at which point discovery would be immaterial, or it can order an evidentiary hearing.

William J. Brennan, Jr.:

I gather you might be opposed to this argument.

I understand it to be a concession that in the habeas corpus process itself, you suggest, imposes the restraints that you just mentioned.

J. Stanley Pottinger:

That’s correct.

William J. Brennan, Jr.:

On the application of the discovery rule and the civil rule.

J. Stanley Pottinger:

That’s correct.

William J. Brennan, Jr.:

There aren’t any comparable restraints to the ordinary civil cases, I suppose.

J. Stanley Pottinger:

That’s correct.

William J. Brennan, Jr.:

So that in the ordinary civil case, one files a complaint and I decide that this goes bad without Court order.

J. Stanley Pottinger:

That’s correct.

William J. Brennan, Jr.:

It proceeds to discovery.

J. Stanley Pottinger:

That’s exactly right.

William J. Brennan, Jr.:

The complaints within the federal habeas statute has imposed these special restraint, is that it?

J. Stanley Pottinger:

That’s exactly right.

Under the present statutory scheme, there are already built-in reviews and restraints on the use of discovery pulling aside from what we believe is a completely adequate restraint in the federal rules itself, Rule 30.

So, we really have two separate built-in restraints that will preclude the kind of abuse that the state suggest would occur in habeas cases.

In addition to this, we have to note two other experiences with the rules.

Since 1938, when the rules were promulgated, a prisoner has been permitted to bring a civil rights action.

And, under that, he has been permitted to invoke the entire spectrum of civil discovery.

So that, if a prisoner is really interested solely in burdening the stay, as the state suggests that this bad faith prisoner supposedly would be, he could have done so for the last 30 years.

And, yet, we have scoured the decision and have been unable to find any number of decisions reported where this kind of abuse took place.

In addition to that, we have to point out that several circuits have, for many years now, applied discovery rules directly to habeas proceedings and, yet, over these past few years that this application has been available, we find not cases reported where prisoners have abused the availability of the federal rules.

So, not only does the statutory scheme preclude abuse, but experience has already been had with the rules, both in habeas and so civil rights cases, indicates that abuse simply is non-existent.

Byron R. White:

How much discovery do you — in the habeas that is available to a state?

J. Stanley Pottinger:

Well, I think that because in habeas proceedings the issue is not one of guilt or innocence and, therefore, it does not involve the self-incrimination privilege and because it is not really often one even involves the testimony of the petitioner, it’s one, as in our case, as probable cause.

The petitioner couldn’t perjure himself or, even if he were syncline, he won’t even testify an issue because we’re dealing with the process by which one is con — is incarcerated, rather than guilt or innocence.

I think that the state will have just as much discovery available to it as the petitioner will.

It, for instance, will be avail — it will be available to the state to inquire into any of the matters surrounding probable cause to — that it feels appropriate to its particular case.

Byron R. White:

I think your Supreme Court allows some discovery in some cases, that is, must keep itself on the part of the state, notwithstanding the privilege?

J. Stanley Pottinger:

Yes, Mr. Justice, they have.

J. Stanley Pottinger:

I would like to point out on this ground that this is a second objection tendered by the state and, that is, the state feels that it’s in Congress to have discovery available in a habeas corpus proceeding which is not, to the full extent, dis — available in a criminal proceeding, but we wish to point out that that objection also is invalid for one reason, because we are involved with the process by which one is incarcerated rather than with guilt or innocence.

The reasons for limiting discovery in some instances and criminal cases simply do not apply to habeas corpus.

The reasons for eliminating it in habeas — in criminal cases has traditionally been not the belief that discovery would not lead to the objective discovery of truth but, rather, that there are counterbalancing considerations, and those are two.

Number one is the fear that a guilty defendant could tamper with witnesses whom he discovered — who he discovered through discovery process and, second ,that he could use his self-incrimination privilege to deter the state from discovering against him and, yet —

Byron R. White:

Does your state allow an accused discovering the names of witnesses that state may use against?

J. Stanley Pottinger:

Yes, I believe that’s correct.

California does have perhaps the most liberal discovery provisions of any state in the Union but, since we are dealing here in addition with federal habeas corpus, I think it’s important to point out, in addition to that, that under any state in the country, the reasons for limiting criminal discovery in some cases simply don’t apply to habeas corpus.

In addition to that, it’s important to note that where Criminal Rule 16, which has greatly expanded criminal discovery, does not fully complement civil discovery.

The inherent power of the Court does.

In other words, in criminal cases, even where Criminal Rule 16 has not permitted to complete discovery to the same extent as it would be in — under the federal rules of civil procedure, Courts have quiet frequently exercised their inherent power to go that last mile.

And, we have cited cases in our brief, the Shores case, the Nolte case, other cases where the Courts have in fact complemented civil discovery in criminal proceedings.

So, we don’t believe that there’s any valid objection to extending criminal discovery devices in habeas proceedings on this ground.

At any rate, it’s certainly not objection which could — should control in this case.

The state has —

Potter Stewart:

Of course, in an ordinary criminal case, the parties or the state as prosecutor and the defendant as the person under indictment or against too much information has been — had a — habeas corpus is quite different, in that, the re — the plaintiff, the petitioner, the applicant is the man in custody and the defendant or respondent is the — his custodian.

How would the custodian know the answers to these questions?

J. Stanley Pottinger:

Well —

Potter Stewart:

How would the custodian, the warden of the penitentiary, know anything about Frances, whatever her name was?

Frances Jenkins.

J. Stanley Pottinger:

Yes, sir.

Mr. Justice Stewart, what happens is that, in this particular case, the warden will not know of his own first-hand knowledge.

Much information, at least to my knowledge, he will not know much information about Frances Jenkins, but the point is that historically, because of the development of the writ, the respondent has always been named as the warden, the person who is in custody, but the real party in interest is the state.

And, just as the use of civil discovery has been permitted against nominal parties where the real party in interest comes forth with the real information in question, so it would be in our case an so it would be in habeas cases generally.

The warden is still going to be the nominal party but since it is the state who represents him, the same attorneys, it is those — the real party interest or those witnesses who were state witnesses and who, therefore, should furnish the information.

Much as, for instance, a trustee in a bank–

Potter Stewart:

You ask — you ask in your interrogatories, appearing on page 34 of the record, that the respondent, that is the warden of the penitentiary, answer all these questions.

He can’t possibly know.

All he knows is the conditions under which he received the petitioner for custody of the penitentiary.

Is that right, that he was convicted probably of this and that crime, and so on?

J. Stanley Pottinger:

Yes, the warden — again, he’s named as the nominal party —

Potter Stewart:

And, that is the party to answer these questions under oath.

J. Stanley Pottinger:

Well, it was not construed as such, I believe, by the Court or any of the parties, Mr. Justice.

Potter Stewart:

I’m not being — attempting my question to be technical with respect to this case, but I’m stressing my tentative question as to whether or not this might not be an additional reason why discovery procedures are not appropriate in a habeas corpus case.

J. Stanley Pottinger:

Well, I —

Abe Fortas:

I would — just exactly how would this work?

Is this, in effect, a writ asking that the warden proceed to find out the answers?

J. Stanley Pottinger:

Nominally, again, yes.

Unless we —

Abe Fortas:

Well, I mean, actually.

J. Stanley Pottinger:

Actually —

Abe Fortas:

What would actually happen?

J. Stanley Pottinger:

Actually what will happen is that Mr. Granberg, the other persons whom we have dealt with in this case in the State Attorneys General’s Office and who will be representing the state in the proceeding.

If they are ordered to answer, we’ll secure the information from the police officers, to whom the questions are directed in fact.

Abe Fortas:

Well, it’s quite a different sort of thing then than the civil interrogatory because what you’re doing, what the prisoner here is asking is that the state, the Commandant, to procure information for him, namely the answers to these questions.

In the usual civil interrogatory, of course, you address the interrogatory to the person who’s in possession of the information.

Now, what this is, this is really a — what you’re asking us to approve here is a procedure by which a state is — the state is commandant to obtain request for certain information and, technically, I suppose that if we accept your argument, it would mean that jailhouse lawyer or the convicted person himself could sit down and write a set of interrogatories and, without any — and having filed his petition for writ of habeas corpus without a Court intervention.

J. Stanley Pottinger:

Your Honor, I don’t believe that — Mr. Justice Fortas, I don’t believe that can happen.

Abe Fortas:

You’d have to get the Court to approve.

J. Stanley Pottinger:

We’d have to, and we have suggested —

Abe Fortas:

How about depositions upon written interrogatories?

J. Stanley Pottinger:

The same.

It would have to be approved and it would be approved for a simple reason.

In any event, discovery is not going to ensue until an evidentiary question or an evidentiary hearing required it.

Abe Fortas:

Well, under the civil rules, if I star — if I’m involved in the civil suit at that time and so on, taking into account, I can just serve notice on somebody that I’m going to take his interrogatory.

I don’t need to take his deposition and I don’t need Court approval, isn’t that right?

J. Stanley Pottinger:

Ordinarily, that is the case but I don’t’ believe that could be the case in habeas proceedings for the simple reason that the Court on its own motion, or the parties, their state in the motion, or the petitioner if the state is seeking to inquire information from the petitioner, any of these parties can simply state that no discovery — under Rule 30, no discovery will proceed until an evidentiary hearing has been determined to be necessary until counsel is appointed.

Abe Fortas:

Well, is that in the civil rules?

J. Stanley Pottinger:

It is supported by Rule 30, yes, Your Honor.

What would happen —

Abe Fortas:

I — I listen with interest to your argument about Rule 30 but, actually, if you say that the civil rules apply in habeas proceedings.

Abe Fortas:

I suppose it’s at least arguable that a precedent can server here — can serve notice on Frances Jenkins, or whatever her name is, that that prisoner wants to take her deposition, am I right?

J. Stanley Pottinger:

Yes, that’s possible, but I see no burden upon that particular person other than to notify the Court that the notice has been received, and have the Court review the appropriateness of it which, in effect, in this case, means that the Court would have two possibilities.

The Court can say — under without discovery at the present time, the Court can say when it appears that a witness might have relevant information in good faith, I must have this person come to a hearing because this person is — informant may have relevant information, therefore, any person who it is believed has information, whether they have it or not, is forced to a hearing.

They must come to a hearing.

At which time, the Court can do one of two things.

Have the evidentiary hearing itself and when a person is found not to have any relevant information?

The person is dismissed even though the time has been used and the person has had to travel herein, or the Court could have two hearings.

They have the first hearing to determine who has relevant information.

Segregate those who do not from those who do, then hold the evidentiary hearing sec — in the second place.

Discovery would aviate this per–

Abe Fortas:

Aren’t you a little concern that this might turn out to be occupational therapy for jailhouse inmates with some certain amount of inconvenience to the rest of the world?

J. Stanley Pottinger:

I don’t believe it will, Mr. Justice Fortas, and, again, because the Court could have — jailhouse lawyers could have done so long ago if they had intended to do so in — at least in several circuits.

There’s no indication of such abuse.

And, second, because I think, as a matter of course, protective orders will be entered.

When the state files its return, all it would have to do is ask, in a one-line sentence, for a preclusion of discovery until an evidentiary hearing is ordered or until it is viewed by the Court to be necessary.

Earl Warren:

We’ll recess now.

J. Stanley Pottinger:

Process of reviewing objections which have been tendered by respondent to the application of appropriate federal rules or other discovery devices pursuant to inherent power to habeas corpus proceedings.

Earl Warren:

Pursuant to what now?

J. Stanley Pottinger:

Of either ha — of procedures either through the federal rules or pursuant to inherent power.

Earl Warren:

Inherent power by who?

J. Stanley Pottinger:

Well, that is to say, the discovery devices could be applied to habeas corpus proceedings by a District Court pursuant to its own inherent power as a separate ground from applying those rules pursuant to Rule 81.

Earl Warren:

You have that in the previous vote of Congress or just the Court draw the rule?

J. Stanley Pottinger:

Well, I think —

Potter Stewart:

Go through the All Writs Act.

J. Stanley Pottinger:

Yes, Mr. Justice, we believe that, under the inherent power authorities that we have argued, there are essentially three separate specific authorities for the use of appropriate procedures in habeas corpus.

The one is the inherent power of the Court wholly aside from any statute or any constitutional provision, and we have cited the case of ex parte Peterson, decided by this Court, which did establish that Courts do have the inherent power to act to the ends of justice aside from any specific statute.

That is cited and discussed —

Hugo L. Black:

To do what?

J. Stanley Pottinger:

In our reply brief.

Hugo L. Black:

They have the power to do what?

J. Stanley Pottinger:

To act and adopt procedures pursuant to the ends of justice as they determine them to be needed in a Court.

Hugo L. Black:

You will have better if you could hang on to some Act of Congress.

J. Stanley Pottinger:

Yes, Mr. Justice, I think that we would much prefer to have the rules applied pursuant to Rule 81 (a) (2) of the federal rules which is tantamount to Congressional provisions since the rules were approved by Congress.

That is true.

We prefer to have the rules extended pursuant to 81 (a) (2) as opposed to having this order sustained below pursuant to inherent power because, while we believe that there’s no question that the Court, in habeas proceedings in particular, has the inherent power and discretion to act to the ends of the duties before the Court, in this case, to try issues of fact.

We believe that it’s preferable to have the rules applied where appropriate because the rules are codified.

They’re available to all attorneys.

They’re available to petitioners.

And, the entire body of law that has grown up around the practice set forth in the federal rules of procedure would be available throughout the country.

On the other hand, if procedures were to be adopted pursuant to the inherent power of the Court and if that were the sole ground for sustaining the District Court’s order in this Court, then we would find that various District Courts throughout the country would adopt appropriate procedures on an ad hoc basis.

The decisions would be scattered through various reports.

It would be a lack of uniformity and, while it’s important to note that, as an alternative, inherent power is an important ground and a valid ground for sustaining the order.

We have no doubt that it would be preferable to have the federal rules apply.

Hugo L. Black:

Maybe no one else will be bothered on the Court, but it gives me trouble.

We’re talking about in here of how to do what is practical in legislation.

Potter Stewart:

But you do have an Act of Congress explicitly applicable to habeas corpus, don’t you?

And, I’m referring to 2246 which —

J. Stanley Pottinger:

Yes, Mr. —

Potter Stewart:

Which says that, on application for a writ of habeas corpus, evidence may be taken orally or by deposition or in the discretion of the judge by affidavit.

If affidavits are admitted, any party shall have the right to propose — to propound written interrogatories to the affiants or to file answering affidavits.

J. Stanley Pottinger:

Yes —

Potter Stewart:

Which —

J. Stanley Pottinger:

Mr. Justice Stewart, that provision, however, most definitely does not deal with discovery.

It deals strictly with evidentiary matters.

Potter Stewart:

Exactly.

Well, that’s correct.

J. Stanley Pottinger:

And, for that reason, it does not control, it does not allude to, and it does not regulate discovery procedures in habeas corpus proceedings.

Potter Stewart:

But it does —

J. Stanley Pottinger:

It simply is not relevant to the present determination.

Potter Stewart:

It does — well, it does regulate and control depositions and affidavits and written interrogatories —

J. Stanley Pottinger:

But —

Potter Stewart:

With respect to the actual hearing in a habeas corpus case and does provide, in these terms, that such a hearing need not always conform to the, or follow, requirements of a criminal trial, that is, evidence may be taken by affidavit, for example, in the discretion of the judge.

At least arguably, this means that when Congress is provided this much with respect to interrogatories, depositions, and affidavits, it did not mean to provide for anything further by way of discovery.

J. Stanley Pottinger:

Well, we have — I suppose that is arguable.

Certainly, respondent has argued it, but we believe that it should be clear from decisions which have construed this provision, decisions incidentally which have been favorable in the ultimate result to respondent.

But, in determining this provision, such decisions in the history of the Act and the language of the Act itself all indicate that that particular Section 2246 deals only with the limited specific procedure of a manner of taking evidence for habeas proceeding and not for dealing in pre-trial discovery.

Knowles and Gladden —

Hugo L. Black:

You have one argument about habeas corpus that I’m not sure you make, that’s a constitutional remedy and it might be more inherent power, extra constitutional remedy, which is given to the Court that it would be in connection with other matters.

J. Stanley Pottinger:

I believe that is true. I think that that would support our position that inherent power is a valid ground for sustaining the order below.

Hugo L. Black:

Yes, up close to the question as to whether Congress could do away with habeas corpus.

J. Stanley Pottinger:

I believe that’s impossible if I read the Suspension Clause correctly in the Constitution.

I don’t believe that could be done.

Finally —

Abe Fortas:

Mr. Pottinger, I am having a little difficulty understanding —

Hugo L. Black:

So do we.

Abe Fortas:

Why the written interrogatory procedure would not be effective for you here.

Now, the depositions under the federal rules of civil procedure would not be available to the prisoner here until he had filed his application for a writ, would they?

J. Stanley Pottinger:

They would not be available even then.

Abe Fortas:

I know.

J. Stanley Pottinger:

Right.

Abe Fortas:

And then there will be a lapse of time.

J. Stanley Pottinger:

That’s correct.

Abe Fortas:

Well, now, why couldn’t, after he has filed his application for a writ, why can’t he go to the Court and say — and ask the Court to proceed by written interrogatories?

Now, your answer to that may be that the deposition procedures, at least nominally, mandatory.

The judge has to permit him to go ahead.

Written interrogatories, a judge can say “well, I don’t chose to proceed by written interrogatories here,” is that right?

J. Stanley Pottinger:

Do I understand you to be referring now to 2246 when —

Abe Fortas:

That’s right.

J. Stanley Pottinger:

I think that that’s a correct interpretation of 2246 insofar as it applies only to evidence, however.

Abe Fortas:

Well, whatever it may be, because if the — if a person in prison should proceed by depo — by written int — by, what do you call them?

J. Stanley Pottinger:

Interro —

Abe Fortas:

Interrogatories under the federal rules of civil procedure, the interrogatories, presumably, would be available.

They ordinarily are available to both parties.

J. Stanley Pottinger:

That’s correct.

Abe Fortas:

And the state can introduce whatever the defendant — whatever the prisoner does not introduce.

It’s a little hard to see that there’s any real operator difference here when you relate the two procedures, 2246 and the federal rules of civil procedure, to the habeas proceeding, except for the element of power and the judge and the 2246 to say, “No, I’m not going to proceed by written interrogatories here.”

J. Stanley Pottinger:

No, I don’t believe that is correct, Mr. Justice Fortas, because Rule 2246 provides for interrogatories only as a means of cross-examining an affiant of an affidavit.

The Court is not permitted, under 2246, to permit a party to proceed with interrogatories.

The only time interrogatories are available under 2246 is in the event that, in a prior determination, the Court has decided to allow evidence to come in by affidavit.

Interrogatories, otherwise, cannot even be permitted under 2246.

It’s clear from the language and the interpretation.

Abe Fortas:

I’m aware of that, but I suppose that if the Court proceeds by affidavit, that he could accept as evidentiary the — whatever comes in on written interrogatories.

That would be sworn —

J. Stanley Pottinger:

Well, that is true but, unfortunately, the affidavit provisions do not permit any discovery.

In this particular case, there’s no reason to believe that we would have the right or the ability to obtain an affidavit from the state.

Abe Fortas:

But the chronology in a habeas suit — curious situation of a habeas case, chronology works out so, as I think you’ve heard, happily and very well put into us.

Chronology works out so that you don’t have the usual difference between discovery — a pre-trial discovery and the use on trial that you have in a civil proceeding.

J. Stanley Pottinger:

Well, certainly not up until — it’s true that procedure differs greatly until an evidentiary hearing is ordered.

At that point, I believe that the procedures are directly parallel because once an evidentiary procedure — proceeding is ordered, then we find ourselves confronted with precisely the same type of determination that a Court and a counsel are confronted within a civil proceeding, and that is to find, develop, present, and draw a conclusions of fact.

And, that’s exactly what has happened in habeas corpus proceedings today under, first, Brown against Allen, and then under the mandatory provisions of Townsend against Sain.

We’re contending that, given that requirement, the Court must have the tools to fulfill it, and the only tools that it can use to fulfill it are provided either pursuant to its inherent power or, preferably, pursuant to the federal rules of civil procedure.

There are — briefly, there are three other objections that the state has tendered.

One is, we believe to be somewhat curious, they have contended that the summary provisions of Section 2243 require a speedy hearing.

And, for this reason, discovery would actually slow down the hearing and be contrary to 2243.

As I’ve already pointed out, discovery on the contrary will facilitate and speed a hearing by permitting the exclusion of the double hearing and, secondly, I think we need only point out that any delay that is occasioned by a petitioner’s use of discovery is delay of his own choosing.

And, thirdly, I think it’s important to point out that the summary provisions of 2243 require the Court to quickly review the matter and not ultimately to dispose of the matter quickly.

In other words, the review process must get on the way quickly after a petition is filed but, if it is in the interest of the petitioner and the Court to develop the facts ultimately to be determined at the evidentiary hearing.

Certainly, the summary provisions of Section 2243 would not suggest that the Court or the parties should sacrifice the ultimate justice to be accorded the petitioner through this fact-finding process simply for the sake of speed.

If I may, I will reserve a few remaining moments for rebuttal.

Earl Warren:

You may.

J. Stanley Pottinger:

Thank you.

Earl Warren:

You may, Mr. Pottinger.

Mr. Granberg.

Derald E. Granberg:

Mr. Chief Justice and may it please the Court.

I’d like to direct my remarks initially to petitioner’s argument that the Federal Rules of Civil Procedure authorize the use of the discovery mechanism provided therein to a habeas proceeding.

This, of course, turns on the construction to be accorded to Rule 81 (a) (2) of those rules which provides simply, these rules are applicable to proceedings for admission to citizenship habeas corpus and quo warranto, to the extent that the practice in such proceedings is not set forth in statutes of the United States and is here to conform to the practice in civil actions.

This imposes two conditions, and we will argue later that neither these conditions can be met. Before I reach that argument, however, I would like to present some remarks with respect to what I feel this evidence is as to the purpose of the original framers of these rules back in 1938.

First of all, I believe we could discern that it makes it perfectly apparent that the framers of the rules recognized that procedures, with respect to habeas corpus, are set forth in the statute.

Secondly, it expresses a clear intention that procedures, with respect to habeas corpus, are to be controlled by statutory changes as well.

It is any of that that a statutory change occurs with respect to procedure.

That is to control.

And, finally, with respect to that second condition, by it conforming to the practice prior to 1938, that offense is a clear intention not to change existing practice in habeas corpus.

A clear intention to maintain a few were status quo with respect to habeas practice as it existed in 1938, and not to freeze it there but to leave any changes that are to occur to Congress through the statutory changes that it sees fit to make.

Now, certainly, Congress has, since that time, affected changes with respect to habeas procedure.

The — this recent — excuse me.

The most recent evidence of that can be found in Section 2241, an enactment there in 1966, an enactment in 2254 in 1966, enactments which significantly affect procedure with respect to habeas proceedings.

I believe that this —

Earl Warren:

What are the changes in 2241 and 2254?

Derald E. Granberg:

2241 relates essentially to jurisdiction and provides that when you have a state with more than one federal judicial district, a habeas petition can be entertained either in a district within which the petitioner is confined or the district within which a state criminal conviction and sentence occurred.

Now, 2254 provides significant changes with respect to the presumption of correctness which is to attend a state factual determination reached after a hearing and reflected by written indicia or findings.

Potter Stewart:

And, both those amendments were made in the 1960s.

Derald E. Granberg:

1966, yes, Your Honor.

Now, I believe that this policy decision reflected in Rule 81 (a) (2), as of 1938, is a very sound one, but it was sound when made and it remains sound today.

First of all, pleading in procedure in habeas corpus is completely inconsistent with pleading procedure as it exists now under the conventional rules of practice for a civil litigation.

And, a habeas petitioner is required to allege with particularity, those facts upon which he relies, and which if established, would justify him to relate.

When Congress introduced the discovery procedure through the civil rules in 1938, it affronted what this Court referred to as one of the most significant innovations of those rules yet.

Those rules came in along with substantial changes with respect to pleading in civil actions as well as simplified pleading.

And, part of a justification for the change in pleading exists in the fact that the discovery techniques are afforded to the parties to be exercised by the parties for the purposes of defining issues, for fact revelation, and such similar purposes.

Now, the justification with this discovery procedure lies certainly in part in these pleading changes which occurred as well, simplified pleadings, streamlined pleading.

Yet, these pleading changes have no pertinence whatever with respect to a habeas proceeding.

Derald E. Granberg:

Now, I believe a second sound reason why the framers sought that not to extent these civil rules with respect to the discovery mechanism to a habeas proceeding is this.

It’s completely inconsistent with the summary nature of a habeas proceeding.

Now, when I say summary, certainly, I’m talking in terms of affording quick relief to a petitioner.

I’m talking about other reasons as well.

Such factors as minimizing the impact on a state rehabilitated process, such factors as minimizing the impact of the burden of habeas applications upon the Federal Courts as well.

There are techniques for resolving these petitions for disposing of them without proceeding through a hearing.

Certainly, if petitioner has failed to allege these specific facts as inserted only conclusory allegations in stating his claim for relief, he’s not entitled to a hearing.

The petition is entitled to be dismissed.

Another sound policy consideration, I think, that existed in 1938 and, certainly, that continues today is the fact that in no criminal discovery system that has been initiated within any state or within the federal system does anything akin to this civil discovery mechanism exist, nothing that even approximates.

Now certainly, California, in the field of criminal discovery, has gone as far as anyone has, perhaps much further.

Now, we afford to a defendant copies of any statements he’s made, copies of other witnesses, copies relating to physical tests, copies relating to examination of scientific evidence.

Factors such as these, for a long time, we’ve given them copies of the grand jury transcript that has been indicted.

He’s afforded a copy of the transcript of the preliminary hearing if he’s held to answer through the information process.

Yet, California has specifically rejected efforts to utilize depositions for purposes of discovery or interrogatories for purposes of discovery.

It’s a system which is simply foreign to the procedure and its’ been recognized as such and rejected.

And, I submit that it is just as foreign within the context of a habeas proceeding.

William J. Brennan, Jr.:

Just as a matter of interest, do you now give them a list of witnesses?

Does a state give the defendant a list of witnesses?

Derald E. Granberg:

Yes, Your Honor.

Usually, it’s done informally.

Frequently, it’s done pursuant to order of the Court, but it is accepted practice.

William J. Brennan, Jr.:

It isn’t done automatically?

Derald E. Granberg:

No, Your Honor.

William J. Brennan, Jr.:

It isn’t done automatically in every case.

Derald E. Granberg:

Discovery in criminal practice in California is not a creature of statute.

It’s a creature of judicial decision.

William J. Brennan, Jr.:

Oh, yes.

Derald E. Granberg:

It is not recognized by a statute, but the Court appropriately recognized that the provisions, with respect to civil discovery, have no applicability to criminal cases.

Finally, I believe that this policy decision made back in 1938 was found and remain sound for further reason.

When you balance the potential for abuse which exists here against the value — potential value of the procedure to petitioners, I think it becomes perfectly apparent that the increase in litigation increased burden on states attorneys.

Derald E. Granberg:

The dangers of harassment with respect to witnesses, arresting officers, prosecuting attorneys, perhaps even defense attorneys, should the procedure be made available, indicates a sound reason for not extending civil discovery to habeas proceedings.

I’d like to turn now for a moment to the specific condition set forth in Section 81 (a) (2), and I will argue that the first condition cannot be met, that is, there cannot be a showing that practice is not controlled by a statute.

Practice was respect to depositions and interrogatory is controlled by a statute within the Habeas Act.

Section 2246 accomplishes this.

Depositions may be utilized for evidence.

Judicially, in the Ninth Circuit, and I refer now to the Wilson versus Weigel, the Court has indicated that depositions, as the term is used in 2246, includes also depositions on written interrogatories.

Now, that’s not an acceptance of the applicability of the civil rules.

It’s simply a recognition that one appropriate way of taking a deposition is by written interrogatories.

Of course, this follows a procedure very much akin to that set out in Section 31 of the federal civil rules.

But, in any event, 2246 limits depositions to evidentiary purposes.

In Wilson versus Weigel, the Ninth Circuit was asked to extend or to reconsider the decision that is now here before this Court in Wilson versus Harris and change its mind, but it did not.

It said depositions can be taken under Section 2246 and that it cannot be taken under Rule 26 (a) of the federal civil rules for purposes of discovery.

And, if objections are to be made to specific questions, then this is the appropriate matter — appropriate approach to take but, nevertheless, it refused to extend the federal civil rules to a habeas proceeding.

It adhered to the decision that it entered earlier in this case here in issue.

Now, I think it’s extremely significant the manner in which Section 2246 regulates deposition in interrogatory practice and the fact that this was enacted.

2246 was added in 1948, a full 10 years after the federal civil rules have been adopted.

Yet, not only do we have the inconsistency between Rule 26 through 37 of the federal civil rules that added 2246 of the Habeas Act that depositions, interrogatories, and so forth are not permitted for discovery in habeas actions, but we also have inconsistencies with respect to the use which may be made of depositions taken or interrogatories, if you will, for purposes of evidence at a trial.

Under 2246, the section provides simply that depositions may be taken for use as evidence, may be utilized in taking evidence at a habeas proceeding.

Rule 26 (a), on the other hand, provides a number of conditions with respect to the utilization which can be made at trial of depositions taken pursuant to them.

Again, when Congress added 2246 in 1948, I submit, it specifically rejected any suggestion that discovery techniques such those found in the civil rules should be applicable in a habeas proceeding.

Abe Fortas:

Is there anything in the legislative history that indicates that apart from the language of the statute?

Derald E. Granberg:

The legislative history which we encountered with respect to 2246 deals solely with the techniques of taking evidence.

There’s no discussion that we have been able to find with respect to discovery.

It does make the point that the use of written interrogatories under 2246, as it appears there, is limited to what — to offering something in akin to cross-examination of one who has presented an affidavit.

That is, under the section literally, written interrogatories can be used only against an individual who has presented an affidavit for use in evidence, technique of testing the evidence in that way.

Finally, turning to the second condition with respect to former practice, there simply can’t be no showing made that anything, even a perch, the discovery mechanism found in the federal rules in civil procedure existed in the habeas proceedings in 1938.

I would submit that there can be no showing that any discovery practice existed in Habeas Court in 1938.

The purpose expressed in maintaining status quo certainly militates against any finding that the second condition can be met.

William J. Brennan, Jr.:

Mr. Granberg.

Derald E. Granberg:

Yes?

William J. Brennan, Jr.:

Does your brief have any legislative history of 2246?

Derald E. Granberg:

Yes, Your Honor.

William J. Brennan, Jr.:

You said that you just put it in 1948, didn’t you?

Derald E. Granberg:

In 1948.

William J. Brennan, Jr.:

Can you refer me — quickly, don’t expend your time now with that.

Derald E. Granberg:

Your Honor, that should be found starting at about page 19.

William J. Brennan, Jr.:

Thank you very much.

Derald E. Granberg:

Now, I would submit that this absence of authority to make any showing prior discovery practice in habeas proceedings, prior to 1948 that is, is extremely significant.

Certainly, this absence of authority was viewed as one of the factors which lead this Court to conclude in Miner versus Atlass that there was no traditional inherent power if you were to order depositions or to authorize deposition for discovery purposes in an admiralty proceeding.

Now, as the Court noted specifically that there was no indication, the traditional practice in this regard.

Turning to the argument that, apart from the civil rules, the Court have some sort of inherent power to authorize and implement and sanction or fashion, if you were, a discovery procedure akin to that found in the civil rules, I submit that this is simply not an appropriate area for an exercise of inherent power.

One of the justifications that had been offered to this Court by a petitioner is that such a power can be found within the habeas statutes themselves.

The hearing requirement impose by section 2243 is summarily here and resolved.

I submit that that affords no basis for implementing or for permitting District Courts to implement, if you were, discovery practice in akin to this.

Now, certainly, 2246 within the habeas statutes affords no basis for implementing a discovery practice into this.

The time provisions filed within 2243, the time requirements, are completely at odds with implanting a discovery procedure akin to that found in the federal civil rules.

As we’ve argued earlier, the plating requirements with respect to habeas are completely inconsistent with implementing a discovery procedure.

An applicant’s required to plead and assert, with particularity, those factual matters upon which he would rely on seeking relief.

And, it’s also significant to note that the habeas statutes do deal with the production of records, documents, and that this offers one additional reason for finding a real necessity for civil discovery techniques in a habeas proceeding.

One of the requirements with respect to a habeas applicant in the Federal Courts is that he had exhausted state remedies before he reaches the Federal Courts or before the Federal Courts, at least as a matter of committee, assume jurisdiction.

224 — 2254 of the habeas statutes now provides, when a factual determination has been made by a State Court and it’s been made after a hearing on the merits, it’s entitled to a presumption of correctives.

And, if an issue passes through the State Courts and reaches the Federal Courts and those records become significant, 2254 also provides a means whereby those records — Court records and materials relating to the factual determination can be brought before the Federal Court and be relied upon in resolving the petition.

Insofar as any suggestion that an inherent power may be found apart from the habeas statutes, just kind of a vague general inherent power, I would suggest that this is not an area which is appropriate for the exercise of inherent power.

Traditionally, as I understand the concept, inherent power may be relied upon by the Court, which has a particular duty imposed on it.

That is, if a Court has been, say, required by a statute to conduct hearings with respect to certain matters, it does have inherent power necessary to it to carry out its jurisdictional obligations, and if a procedure has not been provided which is absolutely necessary to the exercise of its power.

And, through inherent power, it can resolve a procedure to meet the problem, but discovery just doesn’t come within that.

Civil discovery practice, not by any stretch of the imagination, can be characterized in something that’s necessary to a Habeas Court to carry out its responsibilities under the statute.

The civil discovery mechanism is simply foreign to the habeas practice.

I think it’s also significant in this regard that Congress has never seen fact to extend at civil discovery practice to habeas proceedings.

It suggests to me as well that this is an area which is simply inappropriate for an exercise of inherent power.

Abe Fortas:

Your position is that even if a prisoner in a habeas proceeding should make some sort of a case and by affidavit, let us say, and a credible case, then he comes to the judge and asks for — asks the judge in excise of his inherent power and discretionary power, power in the whole writs or whatnot, to authorize him to serve written interrogatories on named people, that the Court would not have such power.

Is that your position?

Derald E. Granberg:

Well, Wilson versus Weigel does suggest that in a situation in which it would be appropriate to take a deposition for purposes of evidence, that that deposition can be taken by utilizing written interrogatories, cross-interrogatories, and so forth.

Now, that’s a procedure which authorizes sanctions, if you would, the use of written interrogatories, but as a technique for taking an evidentiary deposition.

Abe Fortas:

Well, that’s pretty — those are pretty confusing concepts, unless their particularized.

Just take the case that I put to you.

A prisoner makes out a prima facie case by affidavit.

Judge is persuaded that it’s a prima facie case.

The prisoner says “I want to — in order to prove this out, I’ve got to engage in some discovery.

So, please permit me to serve written interrogatories on certain persons.”

Now, is it your position that the Court does not have power to do it or is it your position that the Court could do it under the habeas statute, 2240 — whatever it is?

Derald E. Granberg:

Initially, I’m going to be perfectly clear on this point, that Court would have no power, either within the federal civil rules or apart from the federal civil rules, to authorize written interrogatories for purposes of discovery or to authorize depositions for purposes of discovery.

Abe Fortas:

Well, I don’t care what you call this, whether — I don’t know whether the case I put to you, you probably call it discovery or evidence, but I put factually the case to you.

Derald E. Granberg:

If on a —

Abe Fortas:

The prisoner makes out a prima facie case by affidavit and he asks the judge to see to it that the persons res — plied to written interrogatories so that he could perfect the case which we have made out on a prima facie basis.

What I want to know from you is whether your theory that we adopted means that we would be ruling that the judge on the present state of the law has no power to do so.

Derald E. Granberg:

Let me, if I may, poster the case initially before I answer your question.

Now, before the judge — district judge orders an evidentiary hearing, he must have determined that, on the basis of the petition submitted by the applicant and initially the traverse submitted by the applicant, balancing that against the or — return to the order to show cause submitted by the respondent Warden, that there are certain factual questions raised that there have been factual questions raised with particularity by the allegations of the petitioner that, if proven to be true, will authorize — will, in effect, compel that he’d be released from custody.

Now, the petitioner has already spelled out all of the facts that he needs to know if he is to be ordered release from custody.

Now, I don’t believe that the discovery serves any function under those circumstances.

Abe Fortas:

What’s your answer, yes or no?

Derald E. Granberg:

Well, I would answer, no.

He does not have the power to authorize or to permit the use of discovery, interrogatories, or discovery depositions.

Abe Fortas:

Then, in the case I put to you, your answer is that the judge, no matter — even though he’s persuaded that the prisoner has made out a prima facie case, the judge does not have the power to provide a procedure by which he may go further?

Derald E. Granberg:

No, but the procedure already exists.

It exists within the existing framework of the habeas statute.

If he concludes that the petitioner has stated a meritorious claim, he orders the evidentiary hearing and we proceed with the hearing.

Abe Fortas:

I suppose — suppose the prisoner says an evidentiary hearing is the final ultimate objective.

The prisoner says “I made out a prima facie case.

I need more evidence and I want you to authorize written interrogatories.”

Derald E. Granberg:

He’s done more than —

Abe Fortas:

I’m trying to say that just as clearly as I can, but I guess I’d better quit because I’m actually questioned as clearly as I can put it, and I’d like to know what your answer is because I want to know what your theory would lead us to in terms of affirmance or denial of the judge’s power in that certain — in that situation?

Derald E. Granberg:

Well, affirmance of the Ninth Circuit opinion would be no more than this.

It would be a recognition that there is no power existing in a District Court, either under the federal civil rules or apart from them, to authorize the type of discovery procedures —

Abe Fortas:

I can understand —

Derald E. Granberg:

That I can assume ruled.

Abe Fortas:

I understand that.

I’m asking about your theory.

Are you contending for a ruling by this Court which would say that in the case I put to you the district judge has no power to authorize written interrogatories?

I don’t — I think either your theory does or doesn’t lead — doesn’t involve that.

Maybe I’m oversimplifying it, but I really don’t believe so.

Derald E. Granberg:

Well, before the judge is determinant, an evidentiary hearing is appropriate.

He is determinant there is more than a prima facie case stated.

He is determinant there are more than conclusory allegations reflected in the petition and in its reverse, that these specific facts which have proven would authorize —

Abe Fortas:

You’re telling me to work it —

Derald E. Granberg:

Release from custody had been stated.

Abe Fortas:

You’re telling me to work it out for myself.

Derald E. Granberg:

No, I’m not, Your Honor.

I’m simply trying to demonstrate that the nature of the habeas proceeding is one that does not lend itself to this discovery procedure, nor does it require it because other procedures are already provided which afford a sufficient basis for the kind of factual exploration that’s necessary in a habeas proceeding.

Thurgood Marshall:

Mr. Granberg, does the habeas corpus procedure a civil right?

Derald E. Granberg:

Oh, yes.

Thurgood Marshall:

And, it’s just as much asserted for the truth as any other civil case?

Derald E. Granberg:

Certainly.

Thurgood Marshall:

And, therefore, should have all of the necessary procedures to ensure truth.

Are you sure you want to be with that last one.

Derald E. Granberg:

Oh, certainly, to ensure truth, Your Honor, and I would submit that the habeas statute, as it exist now, affords all of the procedures necessary to accord that search for truth.

Thurgood Marshall:

Well, isn’t the procedure of written interrogatories another procedure to get closer to the truth?

Derald E. Granberg:

Well, the question you’re really asking —

Thurgood Marshall:

Isn’t it?

Derald E. Granberg:

It’s a technique which is utilized to ascertain facts to clarify issues.

Derald E. Granberg:

It’s utilized between the parties and conventional civil litigation, but I would submit that the discovery mechanism of the federal civil rules was never intended by the framers of the rules to be applicable to a habeas proceeding and they indicated that very clearly, with the exception set forth in Section 81 (a) (2).

Thurgood Marshall:

But you still admit that it would help to get to the truth.

Derald E. Granberg:

The question you’re really posing is this.

As a matter of policy, should we have some sort of discovery mechanism in a habeas proceeding?

And, that question is one which is a —

Thurgood Marshall:

That’s your question, it’s not mine.

Derald E. Granberg:

Which, is appropriately left either to the legislative or certainly to the rule making process —

Thurgood Marshall:

That’s your question.

Derald E. Granberg:

That, I would submit, that it’s not a matter appropriate for a Federal District Court to make its own individual determination whether or not a particular rule should be applied because it would be good to have it then.

Thurgood Marshall:

My question is, it’s been recognized that, in all other civil actions, this is good but it’s not good for habeas corpus?

Derald E. Granberg:

That’s a policy determination made by the — originally by the framers of the rule.

Thurgood Marshall:

What you say that’s what the law is?

Derald E. Granberg:

What I’m suggesting is, any decision that this Court makes —

Thurgood Marshall:

You think that it’s less important to determine whether a man is in jail for his life unconstitutionally than it is to find out where the man has been overcharged $10,000 in one dissent?

Derald E. Granberg:

No, I don’t.

But, what I do submit is that the procedure existed and set up with respect to habeas corpus affords a more than adequate basis to make the nature of the inquiry called for by the statutes.

Thurgood Marshall:

Your idea is that habeas corpus is an entirely different type of civil action.

Derald E. Granberg:

It certainly is.

Thurgood Marshall:

Entirely different.

Derald E. Granberg:

It certainly is.

It’s completely foreign —

Thurgood Marshall:

What is this then?

Derald E. Granberg:

— to conventional civil litigation.

Thurgood Marshall:

You have a petitioner, don’t you?

No respondent?

Derald E. Granberg:

Yes, we do.

Thurgood Marshall:

What’s the measure of proof, the same?

Derald E. Granberg:

I’ve never encountered that question.

Thurgood Marshall:

It’s a burden of proof.

Derald E. Granberg:

I believe it’s probably —

Thurgood Marshall:

Isn’t the proof the same?

What makes it so different?

Derald E. Granberg:

A conventional civil action is initiated by the file of a complaint.

Thurgood Marshall:

Well, that’s the question asserted.

Derald E. Granberg:

By the filing of a complaint.

The full panoply of a discovery mechanism in civil rules then becomes available to the individual who has filed that complaint, and he can state his action in conformity with the simplified rules of the federal civil rules with respect to pleading, just generally indicated the nature of his case, then he proceeds into discovery.

A habeas petitioner doesn’t start his case that way.

He starts his case by submitting a petition which has to allege with particularity to the specific facts upon which he’s going to rely.

And he’s entitled to no hearing or no relief from the Court unless he does that and unless he poses the kind of factual allegations which have been proven would entitle him to relief.

Thurgood Marshall:

That’s the same to point to the fact that discovery would help him because his burden is tougher?

Derald E. Granberg:

It might very well help them.

Thurgood Marshall:

Was that what you’re arguing?

Derald E. Granberg:

It might very well help them to have some sort of discovery mechanism available, but the question before this Court now is whether you’re going to allow the full discovery mechanism of a federal civil rule to be applied in a habeas proceeding, and I would submit that the framers of the rules never intended that and that the very nature of a habeas proceeding is not appropriate to that sort of discovery mechanism.

William O. Douglas:

He can always summon the witnesses.

Derald E. Granberg:

Certainly, he can.

That’s what I’m suggesting.

Once he has stated a basis for relief and the Court has ordered an evidentiary hearing, he can subpoena witnesses.

He could call in anyone to substantiate the allegation that he has made in his petition, and he has to carry the burden of proving this and he can do it under the existing procedure.

Thank you.

Earl Warren:

Mr. Feit.

Jerome M. Feit:

Mr. Chief Justice and may it please the Court.

The government’s interest — the federal government’s in this case is substantial since we’re concerned that any ruling as to the automatic applicability of the civil rules of discovery in habeas would, as a matter of course, it seems to us, require the conclusion that they apply equally to proceedings under 2255 a statutory counterpart in habeas corpus.

William J. Brennan, Jr.:

Let’s see, I gather 2255 refers, at least speaks, of the case, doesn’t it?

Of the case to which the petitioner is addressing.

Jerome M. Feit:

Yes.

William J. Brennan, Jr.:

The petition — what’s the case?

Its’ the criminal part case, isn’t it?

On the — facially, apart from Hickman and the others, I take it on the face of 2255 it’s only another step in the criminal clause.

Jerome M. Feit:

Well —

William J. Brennan, Jr.:

Well, isn’t it?

William J. Brennan, Jr.:

I mean, on the face —

Jerome M. Feit:

20 —

William J. Brennan, Jr.:

On the face of 2255, it’s just another step in the Criminal Clause itself, isn’t it?

Jerome M. Feit:

Well, it is on the face of 2255 are the steps in the Criminal Clause itself.

William J. Brennan, Jr.:

But you don’t argue that in your brief, do you?

Any reason why not?

Jerome M. Feit:

Well, what we think 2255 essentially is basically, as this Court has suggested in Hickman —

William J. Brennan, Jr.:

Oh, my.

But, whatever it may have been, certainly, you can’t read it from the first word to the last without recognizing it as a little different from a state — problem of the state prisoner.

Jerome M. Feit:

This is quite true but, of course, the last 3part of 2255 does suggest that —

William J. Brennan, Jr.:

Well, I just — I’m just surprised.

I should think that’s a rather strong argument in favor of the government, at least where your interest primarily lies, which is in 2255 proceedings.

I gather you have very few actual habeas corpus.

Jerome M. Feit:

Habeas corpus cases, yes, Mr. Justice.

Byron R. White:

And why you don’t argue that whatever may be true of federal habeas as a remedy for the state prisoner, clearly enough for the federal prisoner, you’re just dealing with another step on the Criminal Clause itself.

So, you can’t have a civil proceeding.

Jerome M. Feit:

Well, principally, because we were concerned of the problem of suggesting that a state applicant might get discovery with, as mine or an appellee points out, this is a substantial rather than a procedural rule to say that a ha–a 2255 applicant is an entirely different situation.

I agree with you, Your Honor, that the specifics of 2255 —

Byron R. White:

Incidentally, that’s between the habeas applications of state prisoners in the 2255 applications of federal prisoners, what’s the current statistical data?

Which is the greater numbered now?

Jerome M. Feit:

I believe the state is still the greater numbered.

We’ve set it out at page 12 of our brief.

Byron R. White:

Oh, I see.

Jerome M. Feit:

I have found some additional figures for the Court with respect to 2255 applications.

In 19 — fiscal 1967, the Administrative Office of the Courts advices me that 932 2255 applications were disposed of.

It’s not clear when they were instituted.

About 90% or a little more than 842 of those were disposed pre-trial, 6 were terminate after a pre-trial conference, and 19 was — were withdrawn, 65 were given hearings.

Now, I was unable to get specific details of when — of the percentage of actual denials and grants, what happened at the hearing.

Byron R. White:

Now, that’s only 2255.

Jerome M. Feit:

2255, yes.

Byron R. White:

You had comparable statistics for the state —

Jerome M. Feit:

I wasn’t able to get comparable statistics as to the state material nor was I able to get an actual breakdown.

I gather this had been done at the time of Brown and Allen.

Mr. Justice Frankfurter had asked the Administrative Office of the Courts to do this in the summer during that prior argument to that case, but —

Byron R. White:

Well, I take it, the number of filings, let me put it that way, of state prisoners for federal habeas relief must be many times the number of filings of federal prisoners.

Jerome M. Feit:

I would —

William J. Brennan, Jr.:

Of 2255.

Jerome M. Feit:

All the —

William J. Brennan, Jr.:

What this would be —

Jerome M. Feit:

Yes.

I think this is quite clear.

Even the figures in our brief on page 12 point this out.

I would like also to note that, initially, that government’s view is not that the sentencing judge on the 2255 is without power wholly apart from the federal civil rules to permit discovery fact-finding in the rare and unusual case.

Essentially, our position is that the civil rules of discovery deposition do not apply the 2255 prosi — proceedings.

One looks at the statute, as Mr. Justice Brennan points out, the claimant has the obligation to set forth the facts that was raised in issue and, most significantly, the Sentencing Court is then to examine the motion of files and records of the case to see if these documents conclusively show that the prisoner is not entitled to any relief.

If he so concludes, he shall dismiss or deny the application.

If he does not, he can notify the US attorney and schedule a hearing to determine the issues and make findings of fact and conclusions of law.

Moreover, whenever a hearing is to be held, it is required to be held promptly.

It is at such a hearing that the issues will be explored and it is based upon the facts induced on such hearing that the sentencing judge is to make his findings of fact and conclusions of law.

What Congress has done perhaps extend to the practice in a criminal case but, in effect on the 2255, it has set up a pleading method of evaluating the claim and perhaps this is the same way of saying, Mr. Justice Brennan, which takes account quite clearly of the fact that the sentencing judge is now operating on a clean slate, but against the background of a criminal conviction which might have fully resolved the issue so that it would be re-litigated in 2255.

And finally, it has recognized that, at the hearing, the sentencing judge and no one else has the obligation to determine if the restraint alleged is unconstitutional.

On the other hand, the crucial thrust of the deposition interrogatory practice under the civil rules is just the other way.

In a large measure, its purpose is to supplant the pleading in trial development of fact that is the basic–

Thurgood Marshall:

Are you getting to the point now where you’re going to give counsel in these proceedings?

Because, you make them very criminal.

Jerome M. Feit:

Well, we’re in issue —

Thurgood Marshall:

You’re making it an extension of the criminal proceeding.

Jerome M. Feit:

I think —

Thurgood Marshall:

Am I right?

Jerome M. Feit:

I think the statute, though, puts the primary focus on the examination of the files and records.

Jerome M. Feit:

If they conclusively show that the prisoner is entitled to no relief, the judge must dismiss the motion.

Now, if that is inappropriate then, normally, he would hold a hearing and presumably would appoint counsel.

We — we don’t think that 2255 is simply an extension of the criminal case per se.

What we think it is, is a particularized method by which Congress sought to attack — permit attack collaterally upon convictions because 2255 still provides that if the relief is insufficient or unavailable or that the habeas corpus might provide it a proper remedy.

Now, this Court has pointed out on more than one occasion that the relief under 2255 is the substantial equivalent of the relief under habeas corpus.

I think it might be a serious problem to consider 2255 simply of an extension of the criminal case.

Then, I presume it could be argued that relief under the habeas statutes would still be available.

Thurgood Marshall:

My whole point was I didn’t think it had to go that far —

Jerome M. Feit:

No, I agree.

Thurgood Marshall:

In order to claim your part.

Jerome M. Feit:

I agree.

I think that 2255 is a particularized method set up by Congress to deal with post conviction alleged constitutional defects.

In civil discovery, the vital developments of the fact is to stem from the pre-trial examination and, primarily, to afford a way out, perhaps, for out-of-Court settlement either by agreement of the parties with summary judgment.

Alternatively, if the case needs to go to trial, discovery provides a way to assure that no relevant facts in either party’s case are hidden at the trial.

In ordinary civil litigation, wholly unrelated to a pre-existing criminal conviction, the benefits, thus arrived, are deemed to outweigh the time expended in such deposition and cross-deposition practice, but such practice is wholly at odds, as I say, with the scheme and definite precision of Section 2255, and it raises the danger of logging upon time-consuming possibly irrelevant investigation better spent at a hearing.

But, perhaps most significantly from our point of view, the automatic adoption of the deposition interrogatory rules of civil discovery in collateral proceedings, would we think, remove from the sentencing judge or intend to remove from the sentencing judge direct and immediate control in proceedings.

We think the emphasis of Townsend and Sain, fainted away in the Sanders case, is that the habeas judge — sentencing judge is to exercise close control over the proceedings.

Deposition on discovery under the civil rules is governed by entirely different criteria.

It is party-focused with the judge settling disputes as to the particulars of the discovery after the fact.

It is only after a notice of deposition or written interrogatories is served that he may decide to limit the fact-finding on a showing of good cause.

In the — in most instances under the federal civil rules, depositions and discovery may be sought without leave of Court, as we read the rules.

The government’s control essentially is a referee.

We think to grant such broad range in discovery procedures as automatic attributes of 2255 is to create a real danger of possible abuse of the writ.

It is, thus, not unreasonable to forecast that even the most conclusorary allegations will be followed by wide demands for interrogatories and depositions of government prosecutors that have been investigated, etcetera.

Of course, the Court may prevent this procedure, but only after the delay of harassment which is — it seems to us was wholly at odds with the prompt resolution of the const — question of unconstitutional restraint that 2255 talks to.

In short, whatever benefit may be derived by the deposition and discovery in a particular case, these benefits, we think, are wholly disproportionate to the delay, opportunity for harassment, collateral investigation, uncertainty, and loss of direct control by the sentencing judge over the proceedings.

If testimonial facts need development, they can appropriately be developed at the hearing or by the evidentiary deposition route.

Any change in this regard, we think, should come from the rule makers or, principally, from Congress.

I would like to add a word as to our view on the question of power independent of the rules.

We do not think this question of — that question is necessarily raised in this case by virtue of eth Ninth Circuit, as we read the opinion, essentially finding that there was no authority under the federal civil rules and no specific authority under 2246.

Jerome M. Feit:

The opinion did not touch beyond that.

Nevertheless, since the issue has been argued and briefed and we have indicated in our brief that we have a position on this, we believe that such a power does exist.

I would summarily like to state our views in this regard.

We think this power is part of the equity power of the sentencing or habeas judge, and this Court has recognized in Fay and Noia, Brown against Allen, and in the language of this Court has used in its recent decisions in Sanders and Townsend against Sain that the judge is “free to adopt any appropriate means for inquiry into the legality of the prisoner’s detention, and the power of inquiry on federal habeas corpus is plenary.”

In answer to your question, Mr. Justice Fortas, the government’s position is that the power exists.

However, we think the power should be used quite sparingly only in the rarest of circumstances since the 2255 route provides the basic framework for resolving these issues.

An illustration of a possible fact-finding situation, I think, is Machibroda where the facts — in 368 US, where the facts were — claim was made that a defendant had spoken to government counsel on three occasions in prison.

The government counsel, in effect, coerced the plea of guilty, and the question arose whether the prisoner was — need to be present at a hearing and, Mr. Justice Stewart pointed out, the sentencing judge uses common sense.

That was the kind of thing where the facts were not in dispute where — that outside the record but easily available and the prisoner would not be — not need to be at such a hearing.

This is the kind of fact finding, I think, that exists in the sentencing judge of the 2255.

We — for example, there might be a case where there are some very extensive scientific records or examinations, physical examinations on a claim of mental incompetency, and the sentencing judge may feel that, well, that these may be or not in the actual record.

He may feel that the opportunity of the defense counsel to examine them prior to the actual hearing might be appropriate to advance the purposes of the hearing.

What we’re really saying is, yes, there is power sparingly to be employed, very sparingly to be utilized, and under direct control of the sentencing judge.

I might emphasize that we recognize the dangers of extensive deposition and other interrogatory pre-trial proceedings and we do not think that the judge, as a matter of course, should take this route.

On the contrary, we think it should be the rare very unusual instance, and we also think that the basic way the facts are to be developed is at the 2255 hearing that is spelled out in the statute.

Potter Stewart:

Well, how about this case in respect to the point you’re now making?

After all, we’re dealing here with the concrete case.

Jerome M. Feit:

I think —

Potter Stewart:

You say that you would submit that there is some kind of inherent power because of the broad discretion generally in this sort of a collateral proceeding, but that that such power should be very sparingly exercised.

How would that lead you — to what result would that lead you in this case?

Jerome M. Feit:

Well, I think, in this case, as I read the record, the district judge did not exercise any power except the automatic application of the rules.

Potter Stewart:

But, how do we know?

We all —

Jerome M. Feit:

Well, to the only extent, the only argument made by the Government in the record, I believe it’s in page 3 (a).

The only response by the government — by the State of California was that the Court had no power under Rule 81 (a) (2), I am looking for the point in the record, had no power under Rule 81 (a) (2) to grant discovery.

There was no discussion at all concerning any additional power and there’s no indication, it’s true.

The district judge didn’t indicate upon what he based his decision.

There’s no indication that there was any suggestion the Court was exercising discretion in this case.

Potter Stewart:

Well, except by the very act of granting the —

Jerome M. Feit:

To that —

Potter Stewart:

— interrogatories, the Court was exercising discretion.

Jerome M. Feit:

Well, on the assumption that the civil rules —

Potter Stewart:

He says he was fully advised of the premises and he orders the interrogatory.

Jerome M. Feit:

But the argument was that the civil rules of discovery do not apply at all.

Petitioner deposed as if the rules automatically applied.

Presumably, if the rules automatically applied, the judge had very little discretion.

It seemed to me that its’ hard to tell on this record precisely what he did.

The suggestion seemed to go that he relied on the automatic application of the rule.

Potter Stewart:

Well, whatever the district judge —

Jerome M. Feit:

Yes.

Potter Stewart:

— thought he was doing in this case.

I don’t know that I’ve gotten the answer to my question.

Jerome M. Feit:

The answer, I think that this is the kind of case where this can be a very fairly developed hearing as you pointed out, Mr. Justice Stewart.

This is the kind of information which will be, perhaps, available to the officer who made the arrest.

He could be called as a witness at the hearing.

Potter Stewart:

So, it’s your submission that the judgment of the Court of Appeals in this case should be affirmed.(Voice Overlap)

Jerome M. Feit:

Appeals that this case should be affirmed.

Potter Stewart:

That’s what I thought.

Jerome M. Feit:

Thank you.

Hugo L. Black:

But why are we limited to that ground or that reason?

I don’t quite get you.

Jerome M. Feit:

Now, I don’t quite get you, Mr. Justice, I —

Hugo L. Black:

Well, what you are saying is we have the power, the Court had the power, the Court has power, we have the power, inherent power to do it.

You say, “but they ask him to do it on a statute,” and the Court just simply held that they couldn’t do it under that statute.

What the — what should’ve been held is that he couldn’t do it, isn’t it?

Jerome M. Feit:

The effect is that it’s been held that they couldn’t do it.

All that I was suggesting is that the issue of inherent power as opposed to the question of statutory power was not fully developed below.

This is essentially — this is what I’m directing my argument to, and the second part of the response — the second part of Mr. Justice Stewart’s question, I said that, in this case, it seemed to me that it would be appropriate to determine these facts at a hearing.

I am — I find difficulty in finding that the district judge or the Court of Appeals really dealt with the question of inherent power at all.

Sure, the order or determination indicated that we had power, at least the District Court had power, but the District Court really never indicated on it that it was exercising any inherent powers.

Hugo L. Black:

You just asked us to exercise self-restraint.

We have plenty of power, but don’t do it.

Jerome M. Feit:

I think that — that, no —

Hugo L. Black:

Well, I suppose —

Jerome M. Feit:

The —

Hugo L. Black:

One takes that up if we have the power.

Why isn’t it our duty to do it if it’s the good thing to do?

Jerome M. Feit:

Well, as — I think that the power does exist.

I do think, however, that there is specified statutory procedures which provide for the normal and traditional way of resolving these issues.

I have 2255 which deals in terms with these procedures.

All I’m suggesting is that, as the opinions of this Court has repeatedly suggested in Brown against Allen, Fay and Noia, Townsend and Sain that, in the last analysis, the habeas or the sentencing judge must exercise equitable discretion in the premises.

All I’m suggesting is —

Hugo L. Black:

That is about — I mean, what kind of rules you’ll have for taking evidence.

You have seen a lot of statutes and rules on this.

They cover many pages in very great detail as to who does and how it should be done.

Is that what you say we have failed to do?

Jerome M. Feit:

No, I — as you would say, the power exists — I think the power exists to be used very sparingly in light of the existence of these detailed and specific statute setting forth the procedures.

William J. Brennan, Jr.:

You mean — you mean that there is such a power in addition to whatever it may be the scope of 2246?

Jerome M. Feit:

I would have to say, yes.

There would be some power.

William J. Brennan, Jr.:

But I — but, doesn’t the government also argue that, in any event, the extent of any power in the premises is that which is granted by 2246?

Does the government argue that?

Jerome M. Feit:

The federal government argues essentially that the statutory scheme set forth in 2255 provides the traditional normal way of dealing with 2255 proceedings.

That, however —

William J. Brennan, Jr.:

What — what any bearing of 2246 —

Jerome M. Feit:

Yes, I think–

William J. Brennan, Jr.:

All on 2255?

Jerome M. Feit:

I think –I think 2246 further supports the view that there is n — that there is very narrow use to be made of any power outside of this statutory scheme that that, in effect, 22–

William J. Brennan, Jr.:

Well, let’s take just a state prisoner then where we’re dealing only with 2246.

You say, as to the state prisoner too, there is a power and a Habeas Court in addition to any power that’s under 2246?

Jerome M. Feit:

I would have to say that the power, yes, does exist.

William J. Brennan, Jr.:

And that’s the inherent power, so-called?

Jerome M. Feit:

Well, I — I think I would rather talk about it in terms of the equitable power necessary to–

William J. Brennan, Jr.:

Well, in any event, whatever it is —

Jerome M. Feit:

Whatever it —

William J. Brennan, Jr.:

It doesn’t have a statutory source.

It’s something in addition.

You don’t suppose it could be argued here that, speaking now only for the moment of the state prisoner, that Congress has set the limits in 2246 and, having set the limits, there’s no room for additional power in the Court?

Jerome M. Feit:

It could be argued.

I think — and the state —

William J. Brennan, Jr.:

But you don’t’ argue it?

Jerome M. Feit:

And the state has argued it.

William J. Brennan, Jr.:

The state has, but the federal government doesn’t(Voice Overlap).

Jerome M. Feit:

The state has, but the federal government doesn’t argue it.

William J. Brennan, Jr.:

Oh, I think the federal government has a very big stake in this.

After all these federal habeas proceedings of state prisoners, as you pointed out, are in thousands a year now, and that’s a burden on the federal district judges, isn’t it?

Jerome M. Feit:

Yes, it is.

William J. Brennan, Jr.:

And, yet, you don’t share with California the view that 2246 is the limit of any power in the premises.

Jerome M. Feit:

No.

Abe Fortas:

Well, but the fact is that —

Jerome M. Feit:

But, may I add in response to the question that this is — we say that the power spelled out in the statute that, essentially, there should be a hearing as provided by statute.

All we are suggesting is that there may be a case where a sentencing judge or a habeas judge, deems it appropriate for that particular case in the interest of justice, finds it essential to hold some pre-trial discovery.

The federal government —

William J. Brennan, Jr.:

Beyond anything that’s authorized —

Jerome M. Feit:

Beyond anything —

William J. Brennan, Jr.:

By 2246.

Jerome M. Feit:

Anything — They’re beyond anything that’s —

William J. Brennan, Jr.:

That’s what I thought you say, yes.

Byron R. White:

But 2255 doesn’t have to prescribe any procedures to the extent that is prescribed for a state habeas, and there’s cross-reference to the habeas corpus procedure for some purposes, but not for others.

There is no cross-reference that no general statement that the procedure on 2255 shall be as prescribed for habeas corpus petitions.

Byron R. White:

And, I would assume that there may be some room for arguing that there’s some flexibility in the 2255 procedure which is not present in the state habeas.

Jerome M. Feit:

I — if I can clarify that the — yes, sir.

Essentially, our arguments are directed to a 2255.

It — it could be argued that the provisions dealing with habeas corpus are more detailed and set forth the complete power and don’t permit for the exercise of inherent powers.

Byron R. White:

Certainly, the limitations on a Federal Court to grant state habeas that are contained in the proc — in the statutes with respect to habeas corpus petitions are not applicable at all.

Jerome M. Feit:

I agree.

There are problems of federalism and most of other problems that aren’t applicable to 2255.

Byron R. White:

Exactly.

Jerome M. Feit:

Now, perhaps I over spoke, in terms of the government’s interest is essentially the 2255, and the — basically, the 2255.

William J. Brennan, Jr.:

I’m really surprised at that, Mr. Feit.

I would think, really, that the Government sent this as greater, greater in the procedures that govern state prisoner applications in Federal Courts.

Certainly, in terms of the burden of collateral proceedings on Federal District Courts, it’s much larger than the area of the state prisoner than this — of the federal prisoner under 2255.

You told us that in the outset.

Jerome M. Feit:

Yes, and — but, all I am suggesting is that this is further reason not to utilize any of this additional existing power.

William J. Brennan, Jr.:

Yes.

Hugo L. Black:

One prisoner should have it, why shouldn’t all of them have it?

Jerome M. Feit:

Well, to the extent that the statutes —

Hugo L. Black:

What I — what I don’t understand about your argument.

That’d be approaching a denial of equal protection of the law.

The law is supposed to be general to abide all in like circumstances of all these prisoners in jail.

You’re going to say that some of them, at the judge’s discretion, can get it.

Others, at the judge’s different discretion can’t.

Jerome M. Feit:

I’m suggesting that 2255 spells out certain procedures.

Now, the habeas corpus statues, other than 2255, spell out more detailed procedures.

Essentially, my argument is that there is an equitable power beyond the language of the statutes to be sparingly exercised, but our essential focus is on 2255.

We think, perhaps, the answer is that the power in the habeas —

Hugo L. Black:

Now, are you saying that none should get it under 2255?

Jerome M. Feit:

I would think it would have to depend upon the particular case and the particular needs faced by the sentencing judge.

I cannot say that none should get it under 2255.

Hugo L. Black:

It needs faced by the judge or —

Jerome M. Feit:

It needs that the judge (Voice Overlap) —

Hugo L. Black:

Needs faced by the prisoner?

Jerome M. Feit:

Needs that the judge deems appropriate to resolve the issue of unconstitutional restraint.

Thank you.

Earl Warren:

Mr. Pottinger.

J. Stanley Pottinger:

May I first correct Mr. Feit in his assertion that there is nothing in the record, at least that he has seen, to indicate that the inherent power authority was raised below.

In fact, it was raised and cited in the brief of the respondent below, that is Judge Harris below, and it was so-interpreted by the state.

And, in the second part of their brief in the Ninth Circuit, their supplemental brief, they have dealt with the issue by citing the statement that an examination of all authorities other than the rule indicates that there was not appropriate power.

So, the issue is, presently, properly before this Court.

The respondent has suggested that there is a need for special congressional authorization for the use of discovery techniques in habeas corpus, but I think he fails to recognize that Congress has already dealt with the subject.

He tends to argue, I think — I read his argument to say that there is no room for any application of any of the rules of civil procedure to habeas corpus, that this was the intent of the framers that it is not to apply any of the rules.

Of course, Rule 81 (a) (2) on its face shows very clearly that at least some of the rules are to apply because, very clearly, it says “to the extent that certain conditions are met, the federal rules of civil procedure are to apply to habeas corpus.”

The question is not whether any of the rules are to apply or not to apply, but which rules are to apply and that’s the — that is the test that we have addressed ourselves to here and in our brief.

Secondly, I think it’s important to note that Congress has never attempted to regulate the whole of habeas corpus by statute.

On the contrary, Sections 21 — 2241 through 45 — 54, excuse me, that is the habeas corpus statutory scheme, is a very skeletal framework.

Essentially, it codified the common law procedure which is a very widespread and very developed procedure in habeas corpus, but it does not pretend to regulate all the procedures.

If it did and if respondent’s position were adopted, this Court would have to find, for instance, that the appointment of counsel in habeas corpus is no longer permitted because there’s nothing in congressional authority to suggest that counsel can be permit — can be appointed in habeas corpus.

That has been done through the traditional exercise of the Court’s power.

There are similar other exercises that the Court has taken traditionally in habeas corpus to facilitate the ultimate resolution of fact issues and interrogatories, appropriate interrogatories such as the ones in this case, are really no different in quality and/or in burden from those procedures that the Court has been permitted to adopt without controversy for many years.

Finally, respondent relies on a case of Miner against Atlass for the proposition that this Court should look strictly to congressional authority because, in that case, the Court look to congressional authority before extending the use of discovery depositions in admiralty proceedings.

Yet, it’s perfectly clear from the face of Miner against Atlass that there was an admiralty proceedings and a blanket exclusion adopted in the rules, that is to say a blanket exclusion of all of the federal rules to admiralty proceedings.

On the contrary, in habeas corpus, such a blanket exclusion was considered by Congress and/or by the framers of the rules and explicitly rejected, and we have put in our addendum to our reply brief the indication that this was the case.

And, in place of this blanket exclusion, Congress did adopt 81 (a) (2) in its present form which clearly does extend appropriate federal rules to habeas corpus proceedings.

There are other reasons why this Court in Miner and Atlass decided that it could not use discovery in admiralty proceedings which do not apply in the present case.

One of which was that in Cong — in the congressional adoption of the certain federal rules to include — to be included in the general admiralty rules, Congress considered discovery and explicitly rejected discovery.

And, for that reason, this Court noted in Miner against Atlass that there was an explicit rejection of discovery in admiralty which was tantamount to a congressional expression of will.

There is no comparable expression of will in habeas corpus.

On the contrary, as I’ve just mentioned, it is clear that 81 (a) (2) does extend certain of the federal rules to civil procedure.

Finally, I think that it’s important to note that we consider this case of the utmost importance to habeas corpus proceedings and petitioners throughout the country.

Fourth, it’s — if it’s clear that Townsend against Sain and the other decisions of this Court which have interpreted the common law practice and the skeletal framework that Congress has set forth require a Court to develop issues of fact.

J. Stanley Pottinger:

It’s clear that it should be permitted.

The interrogatory should be permitted in this case and, appropriately, in other cases as well.

I’d like to close by pointing out that, in this particular case, there’s no doubt that the evidentiary hearing that Mr. Walker will ultimately come to will turn greatly upon the information that we have requested in these interrogatories.

Without this information, it will be virtually impossible for counsel to know what witnesses to call at that hearing.

It would be impossible for him to know how to resolve the conflicting testimony that took place in the preliminary examination and in the trial which lead to a finding of probable cause but which, since that trial, has indicated was incorrectly stated.

That is to say–

Potter Stewart:

I have a difficulty with, Mr. Pottinger, is this — why can’t you get all that right at the hearing?

You have to make, as has been pointed out, you have to make an explicit allegation of the denial of basic constitutional rights in your habeas corpus application, and the District Court, as I understand it, has already granted your motion for an evidentiary hearing.

J. Stanley Pottinger:

Yes, that’s correct.

Potter Stewart:

Why do you need to get all this in advance of the hearing?

Why isn’t the hearing the place for that?

J. Stanley Pottinger:

Well–

Potter Stewart:

Under the provisions of 2246.

J. Stanley Pottinger:

The — the short answer to that, Mr. Justice, is that we need the information for all the reasons that civil litigants need discovery to prepare a trial in a civil case.

Potter Stewart:

Well, the issue here, as I understand it, is whether or not there was probable cause for a search of a hotel room across the bay and across San Francisco Bay.

J. Stanley Pottinger:

That’s correct.

Potter Stewart:

Whether or not one Frances somebody or another was a reliable informant, and that issue could be developed right at the hearing, can’t it?

J. Stanley Pottinger:

No, I don’t believe it can.

Potter Stewart:

What’s the advantage of doing it there?

J. Stanley Pottinger:

I — I don’t believe it can for this reason, and it’s important to look at the reasons that exist in this case in which were argued to the District Court because Chief Judge Harris asked precisely the question you’re asking now and was convinced that interrogatories were essential.

The reasons are this.

At the preliminary hearing for Mr. Walker, there was an I — there was testimony by the arresting officer that they had pri — 20 prior arrests and convictions and, on that ground and explicitly on that ground, the Court found reliability and, therefore, found probable cause.

At the petitioner’s trial, that same officer could only testify to two such occasions.

One of those occasions turned out to be a lack of a conviction.

In fact, it indicates that perhaps the information was unreliable given by Ms. Jenkins.

The other occasion, Ms. Jenkins herself has sworn under penalty of perjury she did not give information to the police on it.

Now, we have this direct conflict and, for that reason, the Court saw that it very well may be that the informant who now contends in effect that she was not reliable to the same extent that the police contend, the Court finds that that issue must be resolved.

If we have to wait until the police officer is called at that hearing, which is the last chance for Mr. Walker, and ask him at that time for the first time the same questions which we ask in those interrogatories, we’re simply going to have to take his answer.

If he says “I can’t remember” or if he says “I –“ or if he distorted or embellished the — his testimony on the first occasion, I’m simply going to have to take that answer.

I will have no way to know how to rebut it.

J. Stanley Pottinger:

I will have no way to know how to impeach him if necessary.

I will have no way to know what other witnesses he should call or I should call.

Potter Stewart:

Well, I would suggest that you’re going to be even more limited in your interrogatories because when you’re asking the warden these questions, the honest answer to your questions is “I don’t know.”

J. Stanley Pottinger:

Well, perhaps I that defect or that technicality is controlling, we will have to resolve it by addressing the interrogatories directly to the state under the theory that the state is the real party in interest and, for that reason, we will nonetheless secure these answers directly from the police officers.

But, I consider the law to take care of the particular questions at the present time because the real power in interest theory would seem to us to allow us to get behind the warden to the real party in interest under present standards.

Hugo L. Black:

When was the rule of discovery authorized in the civil cases?

J. Stanley Pottinger:

In civil cases?

Hugo L. Black:

Yes.

J. Stanley Pottinger:

Well, there was a type of discovery available, as the Court is aware, under Equity Rule 58.

Hugo L. Black:

That’s right, equity, but I’m talking about civil cases.

J. Stanley Pottinger:

It —

Hugo L. Black:

Is the general rule like you have now?

J. Stanley Pottinger:

I believe in 1938 —

Hugo L. Black:

Why you can notify a man in one day to meet you out in here in Mane, to meet you out in California to hear it the next day.

When was that used up?

J. Stanley Pottinger:

If I understand the question —

Hugo L. Black:

Or three days later.

J. Stanley Pottinger:

If I —

Hugo L. Black:

What I’m getting at, that was a serious question of policy, wasn’t it?

J. Stanley Pottinger:

Yes.

Hugo L. Black:

I may say that — I don’t mean I share in it, but I’ve heard more criticism of the dignity, of the suffering of people under that rule of discovery than any other civil rule that’s been up to, and it’s a question of policy, isn’t it?

J. Stanley Pottinger:

I — I believe, in the initial instance, it was.

And, in that initial —

Hugo L. Black:

So, you don’t think it is now?

J. Stanley Pottinger:

I believe that it — the policy question has been answered with regard to habeas corpus too(Voice Overlap).

Hugo L. Black:

That’s why the questions on those had been answered with reference to it, yes.

J. Stanley Pottinger:

Which includes habeas corpus?

Hugo L. Black:

Well, you say then that the rule applies.

J. Stanley Pottinger:

That’s correct.

Hugo L. Black:

That’s your argument that the rule applies.

J. Stanley Pottinger:

We believe that under —

Hugo L. Black:

We don’t have to make up any out of our inherent powers to legislate.

J. Stanley Pottinger:

We don’t believe so, Mr. Justice Black, but we believe that in the event that the Court is of a different mind that, certainly, inherent power is a second alternative, one that is undisputed and one which flows not only from ex parte Peterson but from the implicit nature, the implications of Townsend against Sain which was to command the Court to inquire into issues of fact and to give the petitioner a full and fair hearing.

And, we believe that in this case, as I’ve just explained, and in other cases it will be impossible to give him a full and fair hearing without appropriate discovery.

Now, I believe that with re —

Hugo L. Black:

You’ve made a good argument for him.

J. Stanley Pottinger:

I believe — I believe with regard to the civil rules, however, to answer your question directly, that the policy decision was made in 1938 when Rule 81 (a) (2) was adopted and that that decision did include not only an application of the federal rules to general civil proceedings, but also to habeas corpus.

And, properly interpreted, the language of Rule 81 (a) (2) would lead the Court to that conclusion.

Thank you.