Francis v. Henderson , 96 S. Ct. 1708 ( 1976 )

Mr. Justice Stewart

delivered the opinion of the Court.

In Davis v. United States, 411 U. S. 233, the Court held that a federal prisoner who had failed to make a timely challenge to the allegedly unconstitutional composition of the grand jury that indicted him could not after his conviction attack the grand jury’s composition in an action for collateral relief under 28 U. S. C. § 2255. The question in this case is whether a state prisoner who failed to make a timely challenge to the composition of the grand jury that indicted him could after his conviction bring that challenge in a federal habeas corpus proceeding.

The petitioner, Abraham Francis, was brought to trial in a Louisiana court in 1965 upon an indictment for felony murder. He was represented by counsel provided by the State. The Louisiana law then in force clearly required that any objection by a defendant to the composition of the grand jury that had indicted him had to be made in advance of his trial. Otherwise, the law provided, “all such objections shall be considered as waived and shall not afterwards be urged or heard.”¹ No such objection in any form was made by or on behalf of Francis. At the ensuing trial the jury found Francis guilty, and he was sentenced to life imprisonment.

He did not appeal the conviction, but in 1971 he sought collateral relief from a state court on the ground, inter alia, that Negroes had been excluded from the grand jury that had indicted him. The court held that Francis had waived this claim when he failed to raise it before trial as required by state law, and it accordingly denied relief. Francis thereafter sought a writ of habeas corpus in the United States District Court for the Eastern District of Louisiana. The District Court granted the writ on the ground that Negroes had been impermissibly excluded from the grand jury that had returned the indictment.² The Court of Appeals reversed the judgment, holding that in the light of this Court’s decision in the Davis case, “the Louisiana waiver provision must be given effect by the federal district courts unless there is a showing of actual prejudice.” 496 F. 2d 896, 899. Accordingly, the appellate court remanded the case to the District Court. We granted certiorari in order to consider a recurring and unresolved question of federal law. 421 U. S. 946.³

There can be no question of a federal district court’s power to entertain an application for a writ of habeas corpus in a case such as this. 28 U. S. C. §§ 2241, 2254. The issue, as in the Davis case, goes rather to the appropriate exercise of that power. This Court has long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power. See Fay v. Noia, 372 U. S. 391, 425-426. The question to be decided is whether the circumstances of this case are such as to invoke the application of those considerations and concerns.

In Davis, supra, the petitioner was indicted by a federal grand jury upon a charge of attempted bank robbery. Federal Rule Crim. Proc. 12 provides that a defendant in a federal criminal case who wants to challenge the constitutional validity of the grand jury that indicted him must do so by motion before trial; otherwise he is deemed to have waived such a challenge, except for “cause shown." ⁴ Davis made no such motion. Almost three years after his trial and conviction, Davis brought a proceeding under 28 U. S. C. § 2255 to set aside his conviction upon the ground of unconstitutional discrimination in the composition of the grand jury that had returned the indictment against him. In holding that § 2255 relief should under these circumstances be denied, the Court said:

“We think it inconceivable that Congress, having in the criminal proceeding foreclosed the raising of a claim such as this after the commencement of trial in the absence of a showing of 'cause' for relief from waiver, nonetheless intended to perversely negate the Rule’s purpose by permitting an entirely different but much more liberal requirement of waiver in federal habeas proceedings. We believe that the necessary effect of the congressional adoption of Rule 12 (b) (2) is to provide that a claim once waived pursuant to that Rule may not later be resurrected, either in the criminal proceedings or in federal habeas, in the absence of the showing of ‘cause’ which that Rule requires. We therefore hold that the waiver standard expressed in Rule 12 (b) (2) governs an untimely claim of grand jury discrimination, not only during the criminal proceeding, but also later on collateral review.” 411 U. S., at 242.

See also Shotwell Mfg. Co. v. United States, 371 U. S. 341, 361-364.

As the Court in Davis pointed out, a time requirement such as that contained in Rule 12 serves interests far more significant than mere judicial convenience:

“The waiver provisions of Rule 12 (b) (2) are operative only with respect to claims of defects in the institution of criminal proceedings. If its time limits are followed, inquiry into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses, and the parties have gone to the burden and expense of a trial. If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in a new indictment prior to trial. Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when repros-ecution might well be difficult.” 411 U. S., at 241.

The Louisiana time limitation applicable in the present case was obviously designed to serve precisely these same important purposes, as the Court specifically recognized more than 20 years ago in a case involving this very Louisiana law, Michel v. Louisiana, 350 U. S. 91. There the Court said:

“It is beyond question that under the Due Process Clause of the Fourteenth Amendment Louisiana may attach reasonable time limitations to the assertion of federal constitutional rights. More particularly, the State may require prompt assertion of the right to challenge discriminatory practices in the make-up of a grand jury.” Id., at 97 (footnote omitted).

“Not only may the prompt determination of such preliminary matters avoid the necessity of a second trial, but a long delay in its determination, such as here, makes it extremely difficult in this class of case for the State to overcome the prima facie claim which may be established by a defendant. Material witnesses and grand jurors may die or leave the jurisdiction, and memories as to intent or specific practices relating to the selection of a particular grand jury may lose their sharpness. Furthermore, a successful attack on a grand jury that sat several years earlier may affect other convictions based on indictments returned by the same grand jury.” Id., at 98 n. 5.

If, as Davis held, the federal courts must give effect to these important and legitimate concerns in § 2255 proceedings, then surely considerations of comity and federalism require that they give no less effect to the same clear interests when asked to overturn state criminal convictions. Those considerations require that recognition be given “to the legitimate interests of both State and National Governments, and . . . [that] the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always [endeavor] to do so in ways that will not unduly interfere with the legitimate activities of the States.” Younger v. Harris, 401 U. S. 37, 44. “Plainly the interest in finality is the same with regard to both federal and state prisoners. . . . There is no reason to . . . give greater preclusive effect to procedural defaults by federal defendants than to similar defaults by state defendants. To hold otherwise would reflect an anomalous and erroneous view of federal-state relations.” Kaufman v. United States, 394 U. S. 217, 228.

We conclude, therefore, that the Court of Appeals was correct in holding that the rule of Davis v. United States applies with equal force when a federal court is asked in a habeas corpus proceeding to overturn a state-court conviction because of an allegedly unconstitutional grand jury indictment.⁵ In a collateral attack upon a conviction that rule requires, contrary to the petitioner's assertion, not only a showing of “cause” for the defendant’s failure to challenge the composition of the grand jury before trial, but also a showing of actual prejudice.⁶ Accordingly, the judgment is affirmed.

It is so ordered.

Mr. Justice Marshall took no part in the decision of this case. Mr. Justice Stevens took no part in the consideration or decision of this case.

1 At the time of Francis’ trial Art. 202 of the Louisiana Code of Criminal Procedure (1928) required that all objections to a grand jury must be raised before the expiration of the third judicial day following the end of the grand jury’s term or before trial, whichever was earlier. State v. Wilson, 204 La. 24, 14 So. 2d 873; State v. Chianelli, 226 La. 552, 76 So. 2d 727. See Michel v. Louisiana, 350 U. S. 91. Louisiana now requires such objections to be made three judicial days prior to trial (or at any time prior to trial if permission of the court is obtained). La. Code Crim. Proc. Ann. Art. 535 (B) (3) (1967).

2 While Negroes did serve on that grand jury, the District Court held that the practice the State followed at that time of excluding daily wage earners from grand jury service operated to exclude a disproportionate number of Negroes.

3 This question has been explicitly left open in previous cases. See Davis v. United States, 411 U. S. 233, 242-243; Parker v. North Carolina, 397 U. S. 790, 798.

4 Before.December 1, 1975, this requirement was embodied in paragraph (b) (2) of Rule 12. It is now contained in paragraphs (b) (2) and (f) of that Rule.

5 In a case where the state courts have declined to impose a waiver but have considered the merits of the prisoner's claim, different considerations would, of course, be applicable. See Lefkowitz v. Newsome, 420 U. S. 283.

6 See Davis v. United States, 411 U. S., at 244-245. “The presumption of prejudice which supports the existence of the right is not inconsistent with a holding that actual prejudice must be shown in order to obtain relief from a statutorily provided waiver for failure to assert it in a timely manner.” Id., at 245.