JurisdictionNorth Carolina

Chapter 8 Exhaustion of State Remedies

Violations of state law are never cognizable in federal habeas proceedings. Only claims asserting violations of federal rights may be litigated. Moreover, a violation of a federal right will not be remedied on federal review if the claim was not first fairly presented to the state court. This fair presentation rule is known as the exhaustion requirement. Exhaustion of a claim through state remedies is a prerequisite to federal consideration of the issues.

The Court has justified the exhaustion rule as a necessary component of comity in our state-federal system and as an important sign of respect for state courts in their role as interpreters of federal law. Exhaustion, then, is best understood as "an accommodation of our federal system designed to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Wilwording v. Swenson, 404 U.S. 249, 250 (1971) (citation omitted). Notably, as a principle of comity and a practical reflection of the desire to give states the first opportunity to "right the wrong," the exhaustion requirement is a purely prudential, and not a jurisdictional, requirement. As a prudential doctrine, federal courts are not absolutely barred from reviewing an unexhausted claim. Federal statutes, however, do impose a rigid bar to federal review in such circumstances.

Under 28 U.S.C. §2254(b)-(c),

(b) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that... the applicant has exhausted the remedies available in the courts of the State; or . . . there is an absence of available State corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. [Moreover,] ... [a] State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.

The cases and notes in this chapter further define the concept of exhaustion and explore its application in a variety of contexts. In Fay v. Noia, the Supreme Court reviewed the historical context of the writ, then evaluated Noia's right to a hearing in federal court by examining whether he had exhausted his claims in state court and, if not, whether he deliberately bypassed the state court proceedings. Rose v. Lundy examined the question of what to do with a petition for a writ of habeas corpus that is "mixed," which means that it contains both exhausted and unexhausted claims. The third case in this chapter, Granberry v. Greer, examined the practical implications of the fact that exhaustion is a prudential— that is, non-jurisdictional—rule and held that a state may waive the exhaustion rule by failing to raise it in federal court. In other words, Granberry leaves open the possibility that un-exhausted claims could be addressed by a federal court.

Fay v. Noia
372 U.S. 391 (1963)

JUSTICE BRENNAN delivered the opinion of the Court.

This case presents important questions touching the federal habeas corpus jurisdiction, 28 U.S.C. § 2241, in its relation to state criminal justice. The narrow question is whether the respondent Noia may be granted federal habeas corpus relief from imprisonment under a New York conviction now admitted by the State to rest upon a confession obtained from him in violation of the Fourteenth Amendment, after he was denied state post-conviction relief because the coerced confession claim had been decided against him at the trial and Noia had allowed the time for a direct appeal to lapse without seeking review by a state appellate court.

Noia was convicted in 1942 with Santo Caminito and Frank Bonino in the County Court of Kings County, New York, of a felony murder in the shooting and killing of one Hammeroff during the commission of a robbery. The sole evidence against each defendant was his signed confession. Caminito and Bonino, but not Noia, appealed their convictions to the Appellate Division of the New York Supreme Court. These appeals were unsuccessful, but subsequent legal proceedings resulted in the releases of Caminito and Bonino on findings that their confessions had been coerced and their convictions therefore procured in violation of the Fourteenth Amendment. Although it has been stipulated that the coercive nature of Noia's confession was also established, the United States District Court for the Southern District of New York held in Noia's federal habeas corpus proceeding that because of his failure to appeal he must be denied relief under the provision of 28 U.S.C. §2254 whereby "An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State." The Court of Appeals for the Second Circuit reversed, one judge dissenting, and ordered that Noia's conviction be set aside and that he be discharged from custody unless given a new trial forthwith. The Court of Appeals questioned whether § 2254 barred relief on federal habeas corpus where the applicant had failed to exhaust state remedies no longer available to him at the time the habeas proceeding was commenced (here a direct appeal from the conviction), but held that in any event exceptional circumstances were present which excused compliance with the section. The court also rejected other arguments advanced in support of the proposition that the federal remedy was unavailable to Noia. * * *

We granted certiorari. We affirm the judgment of the Court of Appeals but reach that court's result by a different course of reasoning. We hold: (1) Federal courts have power under the federal habeas statute to grant relief despite the applicant's failure to have pursued a state remedy not available to him at the time he applies; the doctrine under which state procedural defaults are held to constitute an adequate and independent state law ground barring direct Supreme Court review is not to be extended to limit the power granted the federal courts under the federal habeas statute. (2) Noia's failure to appeal was not a failure to exhaust "the remedies available in the courts of the State" as required by § 2254; that requirement refers only to a failure to exhaust state remedies still open to the applicant at the time he files his application for habeas corpus in the federal court. (3) Noia's failure to appeal cannot under the circumstances be deemed an intelligent and understanding waiver of his right to appeal such as to justify the withholding of federal habeas corpus relief.


The question has been much mooted under what circumstances, if any, the failure of a state prisoner to comply with a state procedural requirement, as a result of which the state courts decline to pass on the merits of his federal defense, bars subsequent resort to the federal courts for relief on habeas corpus. Plainly it is a question that has important implications for federal-state relations in the area of the administration of criminal justice. It cannot be answered without a preliminary inquiry into the historical development of the writ of habeas corpus.

[The Court then outlined the historical development of the writ. A similar discussion of the history of the writ is included in the introduction to Chapter 1.]

* * * Although in form the Great Writ is simply a mode of procedure, its history is inextricably intertwined with the growth of fundamental rights of personal liberty. For its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release. Thus there is nothing novel in the fact that today habeas corpus in the federal courts provides a mode for the redress of denials of due process of law. * * *

* * *

The course of decisions of this Court from Lange and Siebold to the present makes plain that restraints contrary to our fundamental law, the Constitution, may be challenged on federal habeas corpus even though imposed pursuant to the conviction of a federal court of competent jurisdiction.

[The Court continued by explaining more of the historical context of the development of habeas corpus law. Throughout its opinion, the Court also referenced a case from the 1670's known as "Bushell's Case." Bushell was one of the jurors in the trial of William Penn and William Mead, who were charged with tumultuous assembly and other crimes. The trial was held before the Court of Oyer and Terminer at the Old Bailey. When the jury found the defendants "not guilty," the court ordered the jurors committed for contempt. Bushell sought habeas corpus, and the Court of Common Pleas ordered him discharged from custody.]

And so, although almost 300 years have elapsed since Bushell's Case, changed conceptions of the kind of criminal proceedings so fundamentally defective as to make imprisonment pursuant to them constitutionally intolerable should not be allowed to obscure the basic continuity in the conception of the writ as the remedy for such imprisonments.

It now remains to consider this principle in the application to the present case. * * * Under the conditions of modern society, Noia's imprisonment, under a conviction procured by a confession held by the Court of Appeals in Caminito v. Murphy to have been coerced, and which...

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