U.S. Supreme Court HARRIS v. NELSON, 394 U.S. 286 (1969) 394 U.S. 286

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state remedies, he filed a petition for habeas corpus in the Federal District Court, alleging that evidence seized in the search incident to his arrest was improperly admitted at his trial. The basis for this claim was his allegation that the arrest and incidental search were based solely on the statement of an informant who, according to Walker's sworn statement, was not shown to have been reliable; who, in fact, was unreliable; and whose statements were accepted by the police without proper precautionary procedures.

The District Court issued an order to show cause and respondent made return. Thereafter, Walker filed a motion for an evidentiary hearing, which the District Court granted. Two months later, Walker served upon the respondent warden a series of interrogatories, pursuant to Rule 33 of the Federal Rules of Civil Procedure, seeking discovery of certain facts directed to proof of the informant's unreliability. Respondent filed objections to the interrogatories, alleging the absence of authority for their issuance. The District Judge, without stating his reasons, disallowed the objections and directed that the interrogatories be answered. Respondent applied to the Court of Appeals for the Ninth Circuit for a writ of mandamus or prohibition. The Ninth Circuit vacated the order of the District Court. It held that the discovery provisions of the Federal Rules of Civil Procedure were not applicable to habeas corpus proceedings and that 28 U.S.C. 2246, the statutory provision specifically relating to the use of interrogatories in habeas corpus proceedings, did not authorize their use for discovery. Wilson v. Harris, 378 F.2d 141 (1967).

Because of the importance of the questions presented and the diversity of views among the district and appellate courts that have considered the problem,[Footnote 1] we granted

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and lawless state action. Its pre-eminent role is recognized by the admonition in the Constitution that: "The Privilege of the Writ of Habeas Corpus shall not be suspended . . . ." U.S. Const. Art. I, 9, cl. 2. The scope and flexibility of the writ - its capacity to reach all manner of illegal detention - its ability to cut through barriers of form and procedural mazes - have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.

As Blackstone phrased it, habeas corpus is "the great and efficacious writ, in all manner of illegal confinement."[Footnote 2] As this Court said in Fay v. Noia, 372 U.S. 391, 401-402 (1963), the office of the writ is "to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints." See Peyton v. Rowe, 391 U.S. 54, 65-67 (1968).

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such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in actions at law or suits in equity."[Footnote 3]

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inexact.[Footnote 4] Essentially, the proceeding is unique. Habeas corpus practice in the federal courts has conformed with civil practice only in a general sense. There is no indication that with respect to pretrial proceedings for the development of evidence, habeas corpus practice had conformed to the practice at law or in equity "to the extent" that the application of rules newly developed in 1938 to govern discovery in "civil" cases should apply in order to avoid a divergence in practice which had theretofore been substantially uniform. Although there is little direct evidence, relevant to the present problem, of the purpose of the "conformity" provision of Rule 81 (a) (2), the concern of the draftsmen, as a general matter, seems to have been to provide for the continuing applicability of the "civil" rules in their new form to those areas of practice in habeas corpus and other enumerated proceedings in which the "specified" proceedings had theretofore utilized the modes of civil practice. Otherwise, those proceedings were to be considered outside of the scope of the rules without prejudice, of course, to the use of particular rules by analogy or otherwise, where appropriate.[Footnote 5]

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court approval, and that this would be of considerable tactical advantage to them in the prosecution of their efforts to demonstrate such error in their trial as would result in their release. But despite the forceful and ingenious argument of Walker's counsel and amici curiae,[Footnote 6] this consideration cannot carry the day. It is a long march from this contention to a conclusion that the discovery provisions of the Federal Rules of Civil Procedure were intended to extend to habeas corpus proceedings. We have no power to rewrite the Rules by judicial interpretations. We have no power to decide that Rule 33 applies to habeas corpus proceedings unless, on conventional principles of statutory construction, we can properly conclude that the literal language or the intended effect of the Rules indicates that this was within the purpose of the draftsmen or the congressional understanding. IV. To conclude that the Federal Rules' discovery provisions do not apply completely and automatically by virtue of Rule 81 (a) (2) is not to say that there is no way in which a district court may, in an appropriate case, arrange for procedures which will allow development, for purposes of the hearing, of the facts relevant to disposition of a habeas corpus petition. Petitioners in habeas corpus proceedings, as the Congress and this Court have emphasized, and as we have discussed, supra, at 290-292, are entitled to careful consideration and plenary processing of their claims including full opportunity for presentation of the relevant facts. Congress has provided that once a petition for a writ of habeas corpus is filed, unless

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explicitly that the purpose and function of the All Writs Act to supply the courts with the instruments needed to perform their duty, as prescribed by the Congress and the Constitution, provided only that such instruments are "agreeable" to the usages and principles of law, extend to habeas corpus proceedings.

At any time in the proceedings, when the court considers that it is necessary to do so in order that a fair and meaningful evidentiary hearing may be held so that the court may properly "dispose of the matter as law and justice require," either on its own motion or upon cause shown by the petitioner, it may issue such writs and take or authorize such proceedings with respect to development, before or in conjunction with the hearing of the facts relevant to the claims advanced by the parties, as may be "necessary or appropriate in aid of [its jurisdiction] . . . and agreeable to the usages and principles of law." 28 U.S.C. 1651.

We do not assume that courts in the exercise of their discretion will pursue or authorize pursuit of all allegations presented to them. We are aware that confinement sometimes induces fantasy which has its basis in the paranoia of prison rather than in fact. But where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is confined illegally and is therefore entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry. Obviously, in exercising this power, the court may utilize familiar procedures, as appropriate, whether these are found in the civil or criminal rules or elsewhere in the "usages and principles of law."[Footnote 7]

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corpus proceedings. E. g., Sullivan v. United States, 198 F. Supp. 624, 625-627 (D.C. S. D. N. Y. 1961). On other occasions it has been held that the Rules apply only by "analogy." Wilson v. Weigel, 387 F.2d 632, 634, n. 3 (C. A. 9th Cir. 1967); cf. United States ex rel. Jelic v. District Director of Immigration, 106 F.2d 14, 20 (C. A. 2d Cir. 1939) (opinion by Judge Clark, who served as Reporter of the Advisory Committee on the Federal Rules of Civil Procedure). Several courts have held the Rules applicable because habeas is characterized generally as a "civil" proceeding. E. g., United States ex rel. Seals v. Wiman, 304 F.2d 53, 64 (C. A. 5th Cir. 1962); cf. Schiebelhut v. United States, 318 F.2d 785, 786 (C. A. 6th Cir. 1963) (28 U.S.C. 2255 action). Some courts have sustained the use of particular discovery rules under the Federal Rules of Civil Procedure as necessary to effectuate statutory policy with respect to habeas corpus. E. g., Knowles v. Gladden, 254 F. Supp. 643, 644-645 (D.C. Ore. 1965), aff'd, 378 F.2d 761 (C. A. 9th Cir. 1967). Others have apparently assumed that the rules applied to habeas without discussion of the question. E. g., Fortner v. Balkcom, 380 F.2d 816, 818 (C. A. 5th Cir. 1967).

Footnote 2 3 W. Blackstone, Commentaries *131 (Lewis ed. 1902). See generally Fay v. Noia, 372 U.S. 391, 399-415 (1963). Cf. Frank v. Mangum, 237 U.S. 309, 346 (Holmes, J., joined by Hughes, J., dissenting) (1915), "[H]abeas corpus cuts through all forms and goes to the very tissue of the structure. It comes in from the outside . . . and although every form may have been preserved opens the inquiry whether they have been more than an empty shell."

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as to the need for authorizing discovery in this case. MR. JUSTICE HARLAN then expresses his views as to the desirability of formulating discovery rules under 28 U.S.C. 2072, applicable to federal habeas and 2255 proceedings. In our view, the desirability of launching rule-making proceedings does not and could not affect the decision in the present case.

In view of his remarks, however, we have concluded that we should express agreement with our Brother HARLAN as to the desirability of rule making in this field. We repeat that it does not follow from this that district judges are without power to enter necessary orders in the absence of rules.

In fact, it is our view that the rule-making machinery should be invoked to formulate rules of practice with respect to federal habeas corpus and 2255 proceedings, on a comprehensive basis and not merely one confined to discovery. The problems presented by these proceedings are materially different from those dealt with in the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, and reliance upon usage and the opaque language of Civil Rule 81 (a) (2) is transparently inadequate. In our view the results of a meticulous formulation and adoption of special rules for federal habeas corpus and 2255 proceedings would promise much benefit.

MR. JUSTICE BLACK, dissenting.

I would affirm the Court of Appeals' holding in this case, Wilson v. Harris, 378 F.2d 141, that 28 U.S.C. 2246 does not authorize discovery in habeas corpus proceedings. Upon affirmance I would not go further and write what appears to me to be in effect an advisory opinion directing the trial court to formulate some kind of new legal system for discovery in this kind of case. Fully agreeing with the Court's statement that "[w]e have no power to rewrite the Rules by judicial interpretations," I go further and doubt that we have power to

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direct lower courts to write new laws providing for discovery in habeas corpus cases. This is a complicated field of law making and I think we should not enter this field in the absence of some valid delegation of legislative power by the Congress. Since I cannot agree that Congress has granted us such power, I am unable to go along with the Court's opinion.

There have been many complaints among members of the bar about many Court-made rules of procedure and I would venture the suggestion that in no field have the number of those complaints exceeded the complaints in this particular field of discovery. I regret that I cannot "assume," with the Court, that given blanket authority, "courts in the exercise of their discretion will [not] pursue or authorize pursuit of all allegations presented to them." This case makes me skeptical about such an assumption. Here Walker was convicted in a state court of having marihuana in his possession. After exhausting all state remedies he asked the federal courts to let him out of jail. He apparently did not allege his innocence, does not now do so, and this Court apparently does not now consider the question of guilt or innocence in this case. What he does allege is that the trial court made an error in admitting certain evidence against him. It is not alleged that the evidence was not relevant against him or that the verdict resting on that evidence was not a truthful, honest verdict. We must, therefore, assume that he was and is guilty of the crime of which he was convicted. See my dissent in Kaufman v. United States, ante, p. 231, decided today. What is relevant, however, and all that is alleged, is that the evidence used against him, presumably the marihuana, was found on his premises as the result of a search made after a statement by a person to a policeman, which statement the allegations now charge "was not shown to have been reliable" and which was

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My conviction that this would be the best course is strengthened by recollection of our decision in Miner v. Atlass, 363 U.S. 641 (1960), and the events which followed. In Miner we held that a District Court sitting in admiralty had no power to order the taking of an oral discovery deposition. Responding to a suggestion in our opinion, see 363 U.S., at 651, and to earlier stirrings at the bar, the Judicial Conference and the Advisory Committee on General Admiralty Rules swiftly proposed new Admiralty Rules authorizing certain additional kinds of discovery, including oral depositions. After approval by this Court and submission to Congress, as required by statute,3 the new Admiralty Rules went into effect a little more than a year after our decision.4 There is no reason to think that the Judicial Conference and the advisory committees would not be equally cooperative in this instance.

For the reasons stated in Part I of this opinion, I would affirm the judgment of the Court of Appeals in this case.

[Footnote 1] My Brother STEWART bases his dissent in this case upon my own dissenting opinion in Kaufman v. United States, ante, p. 242, in which I have taken the position that in actions brought

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by federal prisoners under 28 U.S.C. 2255 Fourth Amendment claims should be entertained only upon a showing of "special circumstances." I prefer to rest my disagreement with the result in this case upon other grounds, for two reasons. First, this case is not on all fours with Kaufman, since this was a federal habeas action by a state prisoner rather than an action by a federal prisoner under 2255. The Kaufman question has not been briefed or argued in this case, and there may conceivably be significant distinctions between the two types of proceedings. See, e. g., Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U. Pa. L. Rev. 378 (1964). Second, although this case happens, like Kaufman, to involve a search-and-seizure issue, the Court's reasoning here plainly applies to all claims cognizable on federal habeas corpus. Hence, it seems appropriate to rest my dissent upon broader grounds, which also appeal to my Brother WHITE.

[Footnote 2] For a brief account of the role played by these bodies in the making of civil rules, see Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv. L. Rev. 356, 357-358 (1967).

[Footnote 3] See 28 U.S.C. 2072, which also specifies that the proposed rules shall not take effect for 90 days after they have been reported to Congress.

[Footnote 4] See Admiralty Rules 30A-30G, 32, 32B-32D, which were either added or amended effective July 19, 1961.

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should be given wide leeway for "discretion to exercise their common sense." Machibroda v. United States, 368 U.S. 487, 495.*

However, for the reasons stated in MR. JUSTICE HARLAN's dissenting opinion today in Kaufman v. United States, ante, p. 242, which I have joined, I would affirm the judgment in the present case.

[Footnote *] The Machibroda case arose under 28 U.S.C. 2255, the statutory counterpart of habeas corpus. In the circumstances there presented, we pointed out that "many of the material allegations can either be corroborated or disproved by the visitors' records of the county jail where the petitioner was confined, the mail records of the penitentiary to which he was sent, and other such sources." 368 U.S., at 495.

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