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The Drafting of Brown: The Periphery During the various interchanges between the Justices, Justice Jackson had been fairly silent (although it had been his suggestion in conference that set Justice Frankfurter and Reed off on their respective reports), but by no means idle. In March, 1952, Justice Jackson’s law clerk, William Rehnquist, wrote him a brief memo on the McGee case, concluding: In view of the generally troubled situation regarding habeas corpus in cases such as this, and also because the Court last week granted cert in a case involving closely related questions (Daniels v. Allen, No. 271 Misc, cert to CA 4),1 I append hereto a sketchy survey of the law and the facts regarding habeas corpus in the District Courts. On the basis of conclusions reached from that material, I would recommend a grant here in order to consider it at the same time as No. 271, and perhaps straighten out the law on the subject.2 The annexed memo is entitled “HABEAS CORPUS, then and now, Or, ‘If I Can Just Find the Right Judge, Over these Prison Walls I shall Fly . . .’”:3 The basic problem is one of res judicata; to what extent does an adverse judgment in the state system of cts preclude a petitioner from raising anew the same questions in federal district court? The Law.—Recent decisions of this court contain language indicating that a federal district court may consider questions of constitutional right anew even though the state court has decided the same question adversely to the petitioner, and he has been denied cert. by this court. This approach is based on two alternative rationales: (a) Where there has been a constitutional deprivation in the state ct, the result is to actually deprive that court of jurisdiction ; (b) habeas corpus represents an exception to orthodox res judicata principles , and frankly allows a collateral attack on a criminal conviction. (a) a denial of due process by state cts ousts them of jurisdiction. This novel concept was first advanced by Black, J, in Johnson v. Zerbst, 304 U.S. 458.4 Petitioner therein was convicted in federal court and claimed a denial of counsel. The court said that denial of counsel was a denial of constitutional right, and 19 119 that such denial was sufficient to oust the court of jurisdiction. Since a judgment may always be attacked for want of jurisdiction in the rendering court, this was no variation in the ordinary restriction of collateral attack. But of course the novelty lies in the notion that denial of a right to counsel ousts the court of jurisdiction ; previously jurisdiction had been confined to notions of territoriality, statutory limitations, service and process, and notice. However, novelty per se is not a condemnation, and my feeling is that this case, confined to its facts, is right. The reason for prohibiting collateral attack is that a litigant has previously had an opportunity to present his side of the case. . . . But of course if an accused has no counsel, this “previous opportunity ” is pretty meaningless . . . and only a wooden application of the theory of res judicata would foreclose petitioner. But in succeeding cases there have been vague, uncritical allusions to this case as establishing the principle that any denial of constitutional due process goes to the jurisdiction of the court. This is a horse of a different color. Questions of validity of indictment, makeup of the jury, validity of the statute under which conviction is had, might all be questions of due process. But with counsel, there is an opportunity to litigate these before an entire system of state tribunals, and to petition this court for cert. to review the judgment. . . . Here the rationale for making an exception to ordinary restrictions of collateral attack . . . is not present . Litigation on due process and other constitutional questions must end in the same manner as litigation on any other question. (b) a frank exception is made in habeas corpus proceedings to the rule of res judicata. The latest statement of this proposition is found in the opinion of Reed, J., in Darr v. Burford, 339 US 200. . . . The early cases of Frank v. Magnum, 237 U.S. 309, and Moore v. Dempsey, 261 U.S. 86, are vague in their language as to the precise effect to be given a previous adjudication in the state cts. In Frank, the writ was denied, the majority relying at least in part on the previous state determination, although not...

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