author: Per Curiam. Mr. Justice Rehnquist,

text:
    PHILADELPHIA NEWSPAPERS, INC., et al. v. JEROME, JUDGE
    No. 77-308.
    Decided January 9, 1978

      Together with Equitable Publishing Co., Inc., et al. v. Honeyman, Judge; Montgomery Publishing Co. v. Honeyman, Judge; Equitable Publishing Co., Inc., et al. v. Brown, Judge; and Montgomery Publishing Co. v. Brown, Judge, also on appeal from the same court (see this Court’s Rule 15 (3)).

   Per Curiam.

The proceedings below were brought to gain access by the press and public to pretrial suppression hearings in three separate state criminal proceedings. Access was denied and the trial judges closed all pretrial hearings and sealed and impounded all papers, documents, and records filed in the cases. The judges also prohibited the parties, their attorneys, public officials, and certain others, from disseminating information concerning the hearings. Appellants then filed petitions for writs of mandamus with the Supreme Court of Pennsylvania. However, these were denied without opinion. Appellants, arguing that they have been denied their federal constitutional rights, now urge us to take appellate jurisdiction of these matters under 28 U. S. C. § 1257 (2).

As matters now stand, the record does not disclose whether the Supreme Court of Pennsylvania passed on appellants’ federal claims or whether it denied mandamus on an adequate and independent state ground. For this reason, we vacate the judgments of the Supreme Court, and remand the cause to that court for such further proceedings as it may deem appropriate to clarify the record. See California v. Krivda, 409 U. S. 33 (1972).

So ordered.

Mr. Justice Rehnquist,

with whom Mr. Justice Stevens joins,

dissenting.

The Court today summarily vacates the judgments of the State Supreme Court and remands for further proceedings. Neither past decisions of this Court nor policy considerations support this unwarranted assumption of jurisdiction and imposition on the state courts.

The Pennsylvania Rules of Criminal Procedure permit a trial judge to close pretrial suppression hearings from the press and public at the request of the criminal defendant, mandate that all records of such hearings be sealed, and allow the judge in a “widely-publicized or sensational case” to prohibit parties and witnesses from making extrajudicial statements. This appeal stems from the entry of such orders in three Pennsylvania murder trials. In the first trial, appellants filed a petition to vacate the orders with the trial judge; on the same day, appellants also filed petitions for writ of mandamus and prohibition and for plenary jurisdiction with the Pennsylvania Supreme Court. The petition to vacate was denied by the trial judge after the suppression hearing on the ground, according to appellants, that “he was obligated to accord prima facie validity to the Pennsylvania Supreme Court’s Rules.” The Pennsylvania Supreme Court two weeks later denied the petitions for mandamus and for plenary jurisdiction without opinion. Appellants filed similar petitions to vacate with the Common Pleas judges presiding over the other two trials; these petitions were denied on the ground that appellants lacked standing to challenge the orders. Appellants thereafter again filed petitions for mandamus and prohibition and for plenary jurisdiction with the Pennsylvania Supreme Court which were denied without opinion.

We do not know why the Pennsylvania Supreme Court denied appellants’ petitions for writ of mandamus and prohibition and for plenary jurisdiction. There is no reason to presume that the petitions were rejected because the Pennsylvania Supreme Court disagreed with appellants’ constitutional claims. The petitions were for extraordinary relief. The Pennsylvania Supreme Court has consistently emphasized that such petitions are “to be used only with great caution and forbearance and as an extraordinary remedy in cases of extreme necessity, to secure order and regularity in judicial proceedings if none of the ordinary remedies provided by law is applicable or adequate to afford relief.” Such relief “is not of absolute right but rests largely in the sound discretion of the court. It will never be granted where there is a complete and effective remedy by appeal, certiorari, writ of error, injunction, or otherwise.” Carpentertown Coal & Coke Co. v. Laird, 360 Pa. 94, 102, 61 A. 2d 426, 430 (1948). See also Commonwealth ex rel. Specter v. Shiomos, 457 Pa. 104, 320 A. 2d 134 (1974); In re Specter, 455 Pa. 518, 317 A. 2d 286 (1974); Francis v. Corleto, 418 Pa. 417, 211 A. 2d 503 (1965).

While appellants claim that their petitions to the Pennsylvania Supreme Court drew into question the constitutional validity of the sections of the Pennsylvania Rules of Criminal Procedure described above, the Pennsylvania Supreme Court’s denials of their petitions did not on its face decide in favor of the Rules' validity. Thus, it would not appear that we have jurisdiction to note the appeal under 28 U. S. C. § 1257 (2).

Of course, the denials may have been grounded on a decision by the Pennsylvania Supreme Court that the Rules do not violate the Federal Constitution. But this does not require that we vacate a presumably valid judgment of a state supreme court and remand for further proceedings. A less intrusive alternative, and one supported by past precedents of this Court, is to postpone consideration of jurisdiction until appellants have had an opportunity to demonstrate that the judgment appealed from does not rest on an independent and adequate state ground. See, e. g., Lynum v. Illinois, 368 U. S. 908 (1961) (consideration of certiorari deferred “to accord counsel for petitioner opportunity to secure a certificate from the Supreme Court of Illinois as to whether the judgment herein was intended to rest on an adequate and independent state ground”); Herb v. Pitcairn, 324 U. S. 117 (1945). By vacating the judgment below, this Court is taking from appellants the normal burden of demonstrating that we have jurisdiction and placing it on the Supreme Court of Pennsylvania. We deny extraordinary relief regularly without typically expressing our reasons for so doing. We should not place a higher requirement on state supreme courts under penalty of this Court's vacating their judgment.

The Supreme Court of Pennsylvania did not affirm the orders of the trial judges. If it had and if there were reasonable doubt as to whether the affirmance were on state or federal grounds, the precedential and res judicata effects of the affirmance might call for vacating the judgment below. Cf. California v. Krivda, 409 U. S. 33 (1972) (judgment affirming a suppression order vacated when it was unclear whether judgment rested on state or federal constitutional grounds). However, the Supreme Court of Pennsylvania has merely denied extraordinary and discretionary relief without indicating any opinion on appellants’ constitutional challenge. Appellants are thus presumably free to pursue their challenge through state and federal actions still open to them. Under similar circumstances, where it was unclear whether the lower court denied relief on the merits or because the wrong remedy had been chosen, this Court has dismissed the appeal or petition for certiorari. See, e. g., Phyle v. Duffy, 334 U. S. 431 (1948); Woods v. Nierstheimer, 328 U. S. 211 (1946); White v. Ragen, 324 U. S. 760 (1945). I would do that here unless appellants carry their burden of establishing that the decisions of the Supreme Court of Pennsylvania did not rest on an adequate state ground.

       Title 17 Pa. Cons. Stat. §211.201 (Purdon Supp. 1977) gives the Supreme Court of Pennsylvania “original but not exclusive jurisdiction” to issue writs of mandamus or prohibition to courts of inferior jurisdiction. Title 17 Pa. Cons. Stat. § 211.205 (Purdon Supp. 1977), entitled “Extraordinary Jurisdiction,” permits the Supreme Court of Pennsylvania to assume plenary jurisdiction “on its own motion or upon petition of any party, in any matter pending before any court or justice of the peace of this Commonwealth involving an issue of immediate public importance.”

       Section 1257 (2) provides for Supreme Court review of final judgments rendered by the highest court of a State “[b]y appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.”


source: Caselaw Access Project

author: Mr. Justice Marshall

license: Public Domain

text:
    QUILLOIN v. WALCOTT et vir
    No. 76-6372.
    Argued November 9, 1977
    Decided January 10, 1978

      William L. Skinner argued the cause and filed a brief for appellant.

      Thomas F. Jones argued the cause for appellees pro hac vice. With him on the brief was S. Ralph Martin, Jr.

   Mr. Justice Marshall

delivered the opinion of the Court.

The issue in this case is the constitutionality of Georgia's adoption laws as applied to deny an unwed father authority to prevent adoption of his illegitimate child. The child was born in December 1964 and has been in the custody and control of his mother, appellee Ardell Williams Walcott, for his entire life. The mother and the child's natural father, appellant Leon Webster Quilloin, never married each other or established a home together, and in September 1967 the mother married appellee Randall Walcott. In March 1976, she consented to adoption of the child by her husband, who immediately filed a petition for adoption. Appellant attempted to block the adoption and to secure visitation rights, but he did not seek custody or object to the child's continuing to live with appellees. Although appellant was not found to be an unfit parent, the adoption was granted over his objection.

In Stanley v. Illinois, 405 U. S. 645 (1972), this Court held that the State of Illinois was barred, as a matter of both due process and equal protection, from taking custody of the children of an unwed father, absent a hearing and a particularized finding that the father was an unfit parent. The Court concluded, on the one hand, that a father's interest in the “companionship, care, custody, and management” of his children is “cognizable and substantial,” id., at 651-652, and, on the other hand, that the State's interest in caring for the children is “de minimis” if the father is in fact a fit parent, id., at 657-658. Stanley left unresolved the degree of protection a State must afford to the rights of an unwed father in a situation, such as that presented here, in which the countervailing interests are more substantial.

I

Generally speaking, under Georgia law a child born in wedlock .cannot be adopted without the consent of each living parent who has not voluntarily surrendered rights in the child or been adjudicated an unfit parent. Even where the child's parents are divorced or separated at the time of the adoption proceedings, either parent may veto the adoption. In contrast, only the consent of the mother is required for adoption of an illegitimate child. Ga. Code § 74-403 (3) (1975). To acquire the same’ veto authority possessed by other parents, the father of a child born out of wedlock must legitimate his offspring, either by marrying the mother and acknowledging the child as his own, § 74-101, or by obtaining a court order declaring the child legitimate and capable of inheriting from the father, § 74-103. But unless and until the child is legitimated, the mother is the only recognized parent and is given exclusive authority to exercise all parental prerogatives, § 74-203, including the power to veto adoption of the child.

Appellant did not petition for legitimation of his child at any time during the 11 years between the child's birth and the filing of Randall Walcott’s adoption petition. However, in response to Walcott's petition, appellant filed an application for a writ of habeas corpus seeking visitation rights, a petition for legitimation, and an objection to the adoption. Shortly thereafter, appellant amended his pleadings by adding the claim that §§ 74-203 and 74-403 (3) were unconstitutional as applied to his case, insofar as they denied him the rights granted to married parents, and presumed unwed fathers to be unfit as a matter of law.

The petitions for adoption, legitimation, and writ of habeas corpus were consolidated for trial in the Superior Court of Fulton County, Ga. The court expressly stated that these matters were being tried on the basis of a consolidated record to allow “the biological father ... a right to be heard with respect to any issue or other thing upon which he desire [s] to be heard, including his fitness as a parent . After receiving extensive testimony from the parties and other witnesses, the trial court found that, although the child had never been abandoned or deprived, appellant had provided support only on an irregular basis. Moreover, while the child previously had visited with appellant on “many occasions,” and had been given toys and gifts by appellant “from time to time,” the mother had recently concluded that these contacts were having a disruptive effect on the child and on appellees’ entire family. The child himself expressed a desire to be adopted by Randall Walcott and to take on Walcott’s name, and the court found Walcott to be a fit and proper person to adopt the child.

On the basis of these findings, as well as findings relating to appellees’ marriage and the mother’s custody of the child for all of the child’s life, the trial court determined that the proposed adoption was in the “best interests of [the] child.” The court concluded, further, that granting either the legitimation or the visitation rights requested by appellant would not be in the “best interests of the child,” and that both should consequently be denied. The court then applied §§ 74-203 and 74M03 (3) to the situation at hand, and, since appellant had failed to obtain a court order granting legitimation, he was found to lack standing to object to the adoption. Ruling that appellant’s constitutional claims were without merit, the court granted the adoption petition and denied the legitimation and visitation petitions.

Appellant took an appeal to the Supreme Court of Georgia, claiming that §§ 74-203 and 74-403 (3), as applied by the trial court to his case, violated the Equal Protection and Due Process Claused of the Fourteenth Amendment. In particular, appellant contended that he was entitled to the same power to veto an adoption as is provided under Georgia law to married or divorced parents and to unwed mothers, and, since the trial court did not make a finding of abandonment or other unfitness on the part of appellant, see n. 2, supra, the adoption of his child should not have been allowed.

Over a dissent which urged that § 74-403 (3) was invalid under Stanley v. Illinois, the Georgia Supreme Court affirmed the decision of the trial court. 238 Ga. 230, 232 S. E. 2d 246 (1977). The majority relied generally on the strong state policy of rearing children in a family setting, a policy which in the court’s view might be thwarted if unwed fathers were required to consent to adoptions. The court also emphasized the special force of this policy under the facts of this case, pointing out that the adoption was sought by the child’s stepfather, who was part of the family unit in which the child was in fact living, and that the child’s natural father had not taken steps to support or legitimate the child over a period of more than 11 years. The court noted in addition that, unlike the father in Stanley, appellant had never been a de facto member of the child’s family unit.

Appellant brought this appeal pursuant to 28 U. S. C. § 1257 (2), continuing to challenge the constitutionality of §§ 74-203 and 74-403 (3) as applied to his case, and claiming that he was entitled as a matter of due process and equal protection to an absolute veto over adoption of his child, absent a finding of his unfitness as a parent. In contrast to appellant’s somewhat broader statement of the issue in the Georgia Supreme Court, on this appeal he focused his equal protection claim solely on the disparate statutory treatment of his case and that of a married father. We noted probable jurisdiction, 431 U. S. 937 (1977), and we now affirm.

h — < I — I

At the outset, we observe that appellant does not challenge the sufficiency of the notice he received with respect to the adoption proceeding, see n. 7, supra, nor can he claim that he was deprived of a right to a hearing on his individualized interests in his child, prior to entry of the order of adoption. Although the trial court’s ultimate conclusion was that appellant lacked standing to object to the adoption, this conclusion was reached only after appellant had been afforded a full hearing on his legitimation petition, at which he was given the opportunity to offer evidence on any matter he thought relevant, including his fitness as a parent. Had the trial court granted legitimation, appellant would have acquired the veto authority he is now seeking.

The fact that appellant was provided with a hearing on his legitimation petition is not, however, a complete answer to his attack on the constitutionality of §§ 74-203 and 74-403 (3). The trial court denied appellant’s petition, and thereby precluded him from gaining veto authority, on the ground that legitimation was not in the “best interests of the child”; appellant contends that he was entitled to recognition and preservation of his parental rights absent a showing of his “unfitness.” Thus, the underlying issue is whether, in the circumstances of this case and in light of the authority granted by Georgia law to married fathers, appellant’s interests were adequately protected by a “best interests of the child” standard. We examine this issue first under the Due Process Clause and then under the Equal Protection Clause.

A

Appellees suggest that due process was not violated, regardless of the standard applied by the trial court, since any constitutionally protected interest appellant might have had was lost by his failure to petition for legitimation during the 11 years prior to filing of Randall Walcott’s adoption petition. We would hesitate to rest decision on this ground, in light of the evidence in the record that appellant was not aware of the legitimation procedure until after the adoption petition was filed. But in any event we need not go that far, since under the circumstances of this case appellant’s substantive rights were not violated by application of a “best interests of the child” standard.

We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected. See, e. g., Wisconsin v. Yoder, 406 U. S. 205, 231-233 (1972) Stanley v. Illinois, supra; Meyer v. Nebraska, 262 U. S. 390, 399-401 (1923). “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v. Massachusetts, 321 U. S. 158, 166 (1944). And it is now firmly established that “freedom of personal choice in matters of . . . family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” Cleveland Board of Education v. LaFleur, 414 U. S. 632, 639-640 (1974).

We have little doubt that the Due Process Clause would be offended “ [i] f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.” Smith v. Organization of Foster Families, 431 U. S. 816, 862-863 (1977) (Stewart, J., concurring in judgment). But this is not a case in which the unwed father at any time had, or sought, actual or legal custody of his-child. Nor is this a case in which the proposed adoption would place the child with a new set of parents with whom the child had never before lived. Rather, the result of the adoption in this case is to give full recognition to a family unit already in existence, a result desired by all concerned, except appellant. Whatever might be required in other situations, we cannot say that the State was required in this situation to find anything more than that the adoption, and denial of legitimation, were in the “best interests of the child.”

B

Appellant contends that even if he is not entitled to prevail as a matter of due process, principles of equal protection require that his authority to veto an adoption be measured by the same standard that would have been applied to a married father. In particular, appellant asserts that his interests are indistinguishable from those of a married father who is separated or divorced from the mother and is no longer living with his child, and therefore the State acted impermissibly in treating his case differently. We think appellant's interests are readily distinguishable from those of a separated or divorced father, and accordingly believe that the State could permissibly give appellant less veto authority than it provides to a married father.

Although appellant was subject, for the years prior to these proceedings, to essentially the same child-support obligation as a married father would have had, compare § 74-202 with § 74-105 and § 30-301, he has never exercised actual or legal custody over his child, and thus has never shouldered any significant responsibility with respect to the daily supervision, education, protection, or care of the child. Appellant does not complain of his exemption from these responsibilities and, indeed, he does' not even now seek custody of his child. In contrast, legal custody of children is, of course, a central aspect of the marital relationship, and even a father whose marriage has broken apart will have borne full responsibility for the rearing of his children during the period of the marriage. Under any standard of review, the State was not foreclosed from recognizing this difference in the extent of commitment to the welfare of the child.

For these reasons, we conclude that §§ 74-203 and 74-403 (3), as applied in this case, did not deprive appellant of his asserted rights under the Due Process and Equal Protection Clauses. The judgment of the Supreme Court of Georgia is, accordingly,

Affirmed.

       The child lived with his maternal grandmother for the initial period of the marriage, but moved in with appellees in 1969 and lived with them thereafter.

       See Ga. Code §§74-403 (1), (2) (1975). Section 74^403 (1) sets forth the general rule that “no adoption shall be permitted except with the written consent of the living parents of a child.” Section 74-403 (2) provides that consent is not required from a parent who (1) has surrendered rights in the child to a child-placing agency or to the adoption court; (2) is found by the adoption court to have abandoned the child, or to have willfully failed for a year or longer to comply with a court-imposed support order with respect to the child; (3) has had his or her parental rights terminated by court order, see Ga. Code § 24A-3201; (4) is insane or otherwise incapacitated from giving consent; or (5) cannot be found after a diligent search has been made.

       Section 74r-403 (3), which operates as an exception to the rule stated in § 74r-403 (1), seen. 2, supra, provides:
      “Illegitimate children. — If the child be illegitimate, the consent of the mother alone shall suffice. Such consent, however, shall not be required if the mother has surrendered all of her rights to said child to a licensed child-placing agency, or to the State Department of Family and Children Services.”
      Sections of Ga. Code (1975) will hereinafter be referred to merely by their numbers.

       Section 74-103 provides in full:
      “A father of an illegitimate child may render the same legitimate by petitioning the superior court of the county of his residence, setting forth the name, age, and sex of such child, and also the name of the mother; and if he desires the name changed, stating the new name, and praying the legitimation of such child. Of this application the mother, if alive, shall have notice. Upon such application, presented and filed, the court may pass an order declaring said child to be legitimate, and capable of inheriting from the father in the same manner as if bom in lawful wedlock, and the name by which he or she shall be known.”

       Section 74-203 states:
      “The mother of an illegitimate child shall be entitled to the possession of the child, unless the father shall legitimate him as before provided. Being the only recognized parent, she may exercise all the paternal power.” In its opinion in this case, the Georgia Supreme Court indicated that the word “paternal” in the second sentence of this provision is the result of a misprint, and was instead intended to read “parental.” See 238 Ga. 230, 231, 232 S. E. 2d 246, 247 (1977).

       It does appear that appellant consented to entry of his name on the child’s birth certificate. See § 88-1709 (d) (2). The adoption petition gave the name of the child as “Darrell Webster Quilloin,” and appellant alleges in Ms brief that the child has always been known by that name, see Brief for Appellant 11.

       Appellant had been notified by the State’s Department of Human Resources that an adoption petition had been filed.

         In re: Application of Randall Walcott for Adoption of Child, Adoption Case No. 8466 (Ga. Super. Ct., July 12, 1976), App. 70.
      Sections 74-103, 74-203, and 744403 (3) are silent as to the appropriate procedure in the event that a petition for legitimation is filed after an adoption proceeding has already been initiated. Prior to this Court’s-decision in Stanley v. Illinois, 405 U. S. 645 (1972), and without consideration of potential constitutional problems, the Georgia Supreme Court had concluded that an unwed father could not petition for legitimation after the mother had consented to an adoption. Smith v. Smith, 224 Ga. 442, 445-446, 162 S. E. 2d 379, 383-384 (1968). But cf. Clark v. Buttry, 226 Ga. 687, 177 S. E. 2d 89 (1970), aff’g 121 Ga. App. 492, 174 S. E. 2d 356. However, the Georgia Supreme Court had not had occasion to reconsider this conclusion in light of Stanley, and, in the face of appellant’s constitutional challenge to §§ 74-203, 74-403 (3), the trial court evidently concluded that concurrent consideration of the legitimation and adoption petitions was consistent with the statutory provisions. See also Tr. of Hearing before Superior Court, App. 34, 51; n. 12, infra.

       Under § 74-202, appellant had a duty to support his child, but for reasons not appearing in the record the mother never brought an action to enforce this duty. Since no court ever ordered appellant to support his child, denial of veto authority over the adoption could not have been justified on the ground of willful failure to comply with a support order. See n. 2, supra.

       In addition to Darrell, appellees’ family included a son bom several years after appellees were married. The mother testified that Darrell’s visits with appellant were having unhealthy effects on both children.

       The child also expressed a desire to continue to visit with appellant on occasion after the adoption. The child’s desire to be adopted, however, could not be given effect under Georgia law without divesting appellant of any parental rights he might otherwise have or acquire, including visitation rights. See § 74-414.

       The Supreme Court addressed itself only to the constitutionality of the statutes as applied by the trial court and thus, at least for purposes of this ease, accepted the trial court’s construction of §§ 74-203 and 74-403 (3) as allowing concurrent consideration of the adoption and legitimation petitions. See n. 8, supra.

      Subsequent to the Supreme Court’s decision in this case, the Georgia Legislature enacted a comprehensive revision of the State’s adoption laws, which became effective January 1, 1978. 1977 Ga. Laws 201. The new law expressly gives an unwed father the right to petition for legitimation subsequent to the filing of an adoption petition concerning his child. See Ga. Code § 74-406 (1977 Supp.). The revision also leaves intact §§ 74-103 and 74-203, and carries forward the substance of §74-403 (3), and thus appellant would not have received any greater protection under the new law than he was actually afforded by the trial court.

       In the last paragraph of his brief, appellant raises the claim that the statutes make gender-based distinctions that violate the Equal Protection Clause. Since this claim was not presented in appellant’s jurisdictional statement, we do not consider it. This Court’s Rule 15 (1) (c); see, e. g., Phillips Chem. Co. v. Dumas School Dist., 361 U. S. 376, 386, and n. 12 (1960).

       At the hearing in the trial court, the following colloquy took place between appellees’ counsel and appellant:
      “Q Had you made any effort prior to this time [prior to the instant proceedings], during the eleven years of Darrell’s life to legitimate him?
      “A ... I didn’t know that was process even you went through [sic].” App. 58.


author: Mr. Justice Powell Mr. Justice Blackmun,

text:
    BROWDER v. DIRECTOR, DEPARTMENT OF CORRECTIONS OF ILLINOIS
    No. 76-5325.
    Argued October 31, 1977
    Decided January 10, 1978

      Kenneth N. Flaxman argued the cause for petitioner. With him on the briefs were John M. Kalnins, Thomas R. Meites, and Frederick H. Weisberg.

      Raymond McKoski, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were William J. Scott, Attorney General, and Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General.

        David Goldberger and Joel Gora filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.

        Howard Eg'lit filed a brief for the Chicago Council of Lawyers as amicus curiae.

   Mr. Justice Powell

delivered the opinion of the Court.

This case requires us to decide whether the Court of Appeals lacked jurisdiction to review an order directing petitioner’s discharge from respondent’s custody because respondent’s appeal was untimely. In order to resolve this question, we must consider the applicability of Federal Rules of Civil Procedure 52 (b) and 59 in habeas corpus proceedings. Because we conclude that the Court of Appeals lacked jurisdiction, w© reverse.

I

On January 29, 1971, a teenage girl reported to Chicago police that she had been raped. She gave a physical description of her assailants to one officer and told another officer that one of her attackers was named “Browder,” was about 17 years old, and lived in the 4000 block of West Monroe. On the basis of this information and further investigation, the police focused on petitioner’s brother, Tyrone Browder, whose name was in the files of the Youth Division of the Chicago Police Department. A telephone conversation between a Youth Division officer and Mrs. Lucille Browder shifted the officers’ suspicions from Tyrone to petitioner, and Mrs. Browder agreed to keep both her sons at home until the police arrived to talk to them. Four officers interviewed petitioner and his brother, both of whom denied knowledge of the rape. The officers arrested the brothers along with two other teenage Negro males who were present at the Browder home. The four arrestees were taken to the police station, where another officer noticed that petitioner fit the description of the assailant in a rape that had taken place on January 30. In separate lineups, each complainant identified petitioner as her assailant. After being informed of his rights as required by Miranda v. Arizona, 384 U. S. 436 (1966), petitioner confessed to the second rape but denied having committed the rape on January 29.

At his trial for the January 30 rape, petitioner moved unsuccessfully to suppress the lineup identification and the confession on grounds unrelated to the lawfulness of his arrest, which petitioner did not challenge. On direct appeal, however, petitioner argued that the identification and confession were the fruits of an unlawful arrest, effected without probable cause and without a warrant. The Illinois intermediate appellate court invoked its contemporaneous-objection rule and held that petitioner had waived this claim. Petitioner's efforts to obtain review of this claim on direct appeal to the Illinois Supreme Court and on state collateral attack fared no better.

Petitioner met with success at last when he petitioned for a writ of habeas corpus in Federal District Court. On October 21, 1975, the District Court issued an opinion and order directing that petitioner be released from custody unless the State retried him within 60 days. The court did not hold an evidentiary hearing, but it found on the basis of the petition, the respondent's “motion to dismiss,” and the state-court record that the police lacked probable cause to arrest petitioner on the evening of January 31, 1971. Unable to conclude that the taint of the unlawful arrest had been dissipated when the identification and confession were obtained, the court held that both were inadmissible.

On November 18, or 28 days after entry of the District Court’s order, respondent filed with the District Court a motion “to Further Stay the Execution of the Writ of Habeas Corpus and to Conduct an Evidentiary Hearing.” Respondent submitted that the state-court record was inadequate and that the District Court had “erred in granting the writ without first conducting an evidentiary hearing to determine if in fact petitioner was arrested without probable cause and if so, whether his confession was thereby tainted.” App. 118. Respondent cited Townsend v. Sain, 372 U. S. 293 (1963), and United States ex rel. McNair v. New Jersey, 492 F. 2d 1307 (CA3 1974), as authority for his asserted right to an evidentiary hearing, but did not identify the source of the court’s authority to consider the motion.

The District Court nevertheless entertained the motion, granted a stay of execution on December 8, and on December 12 set a date for an evidentiary hearing on the issue of probable cause. The court noted that the inadequacy of the state-trial record had not been raised in respondent’s “motion to dismiss” but concluded “that the request for an evidentiary hearing should not be denied solely because it is untimely.” App. 120. Petitioner moved immediately to vacate the orders granting a stay and an evidentiary hearing on the ground that the court lacked jurisdiction to enter them. Petitioner explained that because the period of time prescribed by the Federal Rules of Civil Procedure for a motion for a new trial or to alter or amend a judgment had elapsed, the District Court “no longer ha[d] jurisdiction to alter or amend its final order of October 21, 1975, and the orders whose vacatur is sought are void orders.” Id., at 122.

The evidentiary hearing was held nevertheless on January 7, 1976, and on January 26, 1976, the District Court ruled: “[T]he writ of habeas corpus was properly issued on October 21, 1975. The motion to reconsider is therefore DENIED.” Id., at 161. Respondent immediately filed a notice of appeal seeking review of the order of October 21 as well as the order of January 26. Petitioner maintained, consistently, that the Court of Appeals lacked jurisdiction to review the original order granting relief, since respondent's notice of appeal was not filed within 30 days of that order, and the time for appeal had not been tolled by respondent’s untimely post-judgment motion. See n. 5, supra. Even if the order of January 26 were construed as a denial of relief from judgment under Fed. Rule Civ. Proc. 60 (b), as to which the appeal would have been timely, petitioner argued that the Court of Appeals would have jurisdiction only to review that order for abuse of discretion. Respondent disclaimed reliance on Rule 60 (b), insisting instead that the order of October 21 was not a final order and that a timely appeal had been taken from the final order of January 26.

The Court of Appeals did not address the question of its appellate jurisdiction except to observe, in a cryptic footnote, that it did not have to consider “whether there was an untimely appeal” on the issue whether petitioner’s confession was admissible under Brown v. Illinois, 422 U. S. 590 (1975). The court reversed the District Court without a published opinion, holding that the police had had probable cause to arrest petitioner. Judgt. order reported at 534 F. 2d 331 (CA7 1976). Rehearing was denied. We granted certiorari. 429 U. S. 1072 (1977).

II

Under Fed. Rule App. Proc. 4 (a) and 28 U. S. C. § 2107, a notice of appeal in a civil case must be filed within 30 days of entry of the judgment or order from which the appeal is taken. This 30-day time limit is “mandatory and jurisdictional.” United States v. Robinson, 361 U. S. 220, 229 (1960). See also Fallen v. United States, 378 U. S. 139 (1964); Coppedge v. United States, 369 U. S. 438, 442 (1962); United States v. Schaefer Brewing Co., 356 U. S. 227 (1958); Matton Steamboat Co. v. Murphy, 319 U. S. 412, 415 (1943); George v. Victor Talking Mach. Co., 293 U. S. 377, 379 (1934). The purpose of the rule is clear: It is “to set a definite point of time when litigation shall be at an end, unless within that time the prescribed application has been made; and if it has not, to advise prospective appellees that they are freed of the appellant’s demands. Any other construction of the statute would defeat its purpose.” Matton Steamboat, supra, at 415.

The running of time for filing a notice of appeal may be tolled, according to the terms of Rule 4(a), by a timely motion filed in the district court pursuant to Rule 52 (b) or Rule 59. Respondent’s motion for a stay and an evidentiary hearing was filed 28 days after the District Court’s order directing that petitioner be discharged. It was untimely under the Civil Rules, see n. 5, supra, and therefore could not toll the running of time to appeal under Rule 4 (a). The Court of Appeals therefore lacked jurisdiction to review the order of October 21. But respondent answers that Rules 52 (b) and 59 do not apply because the order of October 21 was not final and, in any event, the Federal Rules of Civil Procedure did not apply in this habeas corpus proceeding. We consider each of these contentions.

A

An appeal in a habeas corpus proceeding lies from a “final order,” 28 U. S. C. § 2253. The District Court’s order of October 21 purported to be final, as it granted petitioner’s application for a writ of habeas corpus and directed that petitioner be discharged if the State did not retry him within 60 days. Respondent contends, however, that this order was not a final order “ ‘leaving nothing to be done but to enforce by execution what had been determined,’ Catlin v. United States, 324 U. S. 229, 236 (1945), because all required procedures under the Habeas Corpus Act had not been completed at the time the order was issued.” Brief for Respondent 42. Respondent cites 28 U. S. C. §§ 2243 and 2254 (d) and the Court’s decision in Townsend v. Sain, 372 U. S. 293 (1963), in support of his contention that the October 21 order “cannot be considered a final order under 28 U. S. C. [§] 2253 because it left unresolved the statutorily prescribed question of whether an evidentiary .hearing would be required . . . Brief for Respondent 43.

Respondent’s position confuses error with nonfinality and fails to distinguish between the requirements of the habeas corpus statutes and the procedural means for correcting asserted error in fulfilling the statutory command. Here the District Court discharged its duty “summarily [to] hear and determine the facts/’ 28 U. S. C. § 2243, by granting the petition on the state-court record. See Walker v. Johnston, 312 U. S. 275, 284 (1941). Respondent’s failure to assert the need for an evidentiary hearing in his motion to dismiss did not necessarily deprive him of the right to assert the absence of a hearing as a reason for reconsideration or as error on appeal, but neither did the absence of an evidentiary hearing render the District Court order nonfinal. If respondent were correct in his theory of finality, any order later alleged to have been entered precipitately or after an incomplete hearing could be considered nonfinal for purposes of appeal. The confusion that would result from litigants’ divergent views of the completeness of proceedings would be wholly at odds with the imperative that jurisdictional requirements be explicit and unambiguous.

B

Since the order of October 21 was a final order, the time for appeal commenced to run on that date. Respondent’s notice of appeal therefore was untimely by 68 days, unless respondent’s motion of November 18 tolled the time for appeal under Rule 4 (a). The rationale behind the tolling principle of the Rule is the same as in traditional practice: “A timely petition for rehearing tolls the running of the '[appeal] period because it operates to suspend the finality of the . . . court’s judgment, pending the court’s further determination whether the judgment should be modified so as to alter its adjudication of the rights of the parties.” Department of Banking v. Pink, 317 U. S. 264, 266 (1942) (emphasis supplied). An untimely request for rehearing does not have the same effect. Respondent seeks to avoid the conclusion that his motion was untimely under the Civil Rules, and therefore did not toll the time for appeal under Appellate Rule 4 (a), by asserting that his motion was not based on Rule 52 (b) or Rule 59 because the Federal Rules of Civil Procedure were not applicable in this habeas proceeding.

Respondent’s failure to rely on a particular rule in making his motion does not suffice to make the Federal Rules inapplicable. Respondent’s insistence that his motion was not based on any of the Federal Rules, but rather on the habeas corpus statutes and Townsend v. Sain, supra, parallels his theory of the nonfinality of the October 21 order and reflects his failure to recognize that the habeas corpus statutes do not prescribe postjudgment procedures. During the pendency of a habeas proceeding, the procedure indeed is set out in the habeas corpus statutes, and Fed. Rule Civ. Proc. 81 (a) (2) recognizes the supremacy of the statutory procedures over the Federal Rules. But those procedures say nothing about the proper method for obtaining the correction of asserted errors after judgment, whether on appeal or in the District Court.

Respondent asserts that his motion of November 18 was timely because it was filed within the 30-day period allowed for appeal, as was the case in United States v. Dieter, 429 U. S. 6 (1976). In relying upon Dieter, respondent misconceives our holding in that case. There the Court followed United States v. Healy, 376 U. S. 75 (1964), and held that a timely motion for rehearing in a criminal case would toll the running of the time for appeal. In Dieter, as in Healy, no rule governed the timeliness of a motion for rehearing by the Government in a criminal case or the effect of such a motion on the time allowed for appeal. Instead, “ 'traditional and virtually unquestioned practice’ ” dictated that a timely petition for rehearing would render the original judgment nonfinal for purposes of appeal and therefore would toll the time for appeal, Dieter, supra, at 8, and n. 3 (quoting Healy, supra, at 79); and absent a rule specifying a different time limit, a petition for rehearing in a criminal case would be considered timely "when filed within the original period for review,” 376 U. S., at 78. In a civil case, however, the timeliness of a motion for rehearing or reconsideration is governed by Rule 52 (b) or Rule 59, each of which allows only 10 days; and Rule 4 (a) follows the “traditional and virtually unquestioned practice” in requiring that a motion be timely if it is to toll the time for appeal.

Respondent has maintained throughout that the Federal Rules of Civil Procedure are wholly inapplicable on habeas. We think this is a mistaken assumption. It is well settled that habeas corpus is a'civil proceeding. Fisher v. Baker, 203 U. S. 174, 181 (1906); Ex parte Tom Tong, 108 U. S. 556 (1883); see Heflin v. United States, 358 U. S. 415, 418 n. 7 (1959). Perhaps in recognition of the differences between general civil litigation and habeas corpus proceedings, see Harris v. Nelson, 394 U. S. 286, 293-294, and n. 4 (1969), the Federal Rules of Civil Procedure apply in habeas proceedings only “to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in civil actions.” Fed. Rule Civ. Proc. 81 (a) (2); see Fed. Rule Civ. Proc. 1.

In Harris the Court considered whether the discovery procedure authorized by Fed. Rule Civ. Proc. 33 is available in a habeas corpus proceeding. The Court concluded “that the intended scope of the Federal Rules of Civil Procedure and the history of habeas corpus procedure . . . make it clear that Rule 81 (a) (2) must be read to exclude the application of Rule 33 in habeas corpus proceedings.” 394 U. S., at 293. In Thompson v. INS, 375 U. S. 384 (1964), on the other hand, the Court assumed without discussion that Rules 52 (b) and 59 applied in a “proceeding for admission to citizenship” in which, as in a habeas corpus proceeding, the applicability of the Civil Rules is qualified by Rule 81 (a) (2).

Although this Court has not had occasion to hold Rules 52 (b) and 59 applicable in habeas corpus proceedings, the Courts of Appeals uniformly have so held or assumed. E. g., Rothman v. United States, 508 F. 2d 648, 651 (CA3 1975); Hunter v. Thomas, 173 F. 2d 810 (CA10 1949) (motion for a new trial by the custodian). The combined application of the time limit in Rule 52 (b) or 59 and the tolling principle of Rule 4 (a) or its predecessor, Fed. Rule Civ. Proc. 73 (a), has resulted in dismissal of appeals from dispositions on habeas corpus petitions. E. g., Flint v. Howard, 464 F. 2d 1084, 1086 (CA1 1972). See also Fitzsimmons v. Yeager, 391 F. 2d 849 (CA3) (en banc), cert. denied, 393 U. S. 868 (1968); Munich v. United States, 330 F. 2d 774 (CA9 1964).

We see no reason to hold to the contrary. No other statute of the United States is addressed to the timeliness of a motion to reconsider the grant or denial of habeas corpus relief, and the practice in habeas corpus proceedings before the advent of the Federal Rules of Civil Procedure conformed to the practice in other civil proceedings with respect to the correction or reopening of a judgment. At common law, a court had the power to alter or amend its own judgments during, but not after, the term of court in which the original judgment was rendered, United States v. Mayer, 235 U. S. 55, 67 (1914); Bronson v. Schulten, 104 U. S. 410, 415 (1882); Ex parte Lange, 18 Wall. 163, 167 (1874); Basset v. United States, 9 Wall. 38, 41 (1870); and this rule was applied in habeas corpus cases, see Aderhold v. Murphy, 103 F. 2d 492 (CA10 1939); Tiberg v. Warren, 192 F. 458, 463 (CA9 1911). The 1946 amendments to the Rules of Civil Procedure abolished terms of court and instead confined the power of a district court to alter or amend a final order to the time period stated in Rules 52 (b) and 59. See Advisory Committee Report, 5 F. R. D. 483, 486-487 (1946). “The Rules, in abolishing the term rule, did not substitute indefiniteness. On the contrary, precise times, independent of the term, were prescribed.” United States v. Smith, 331 U. S. 469, 473 n. 2 (1947) (referring to the time limit prescribed by the Federal Rules of Criminal Procedure for new trial motions).

In addition to the settled conformity of habeas corpus and other civil proceedings with respect to time limits on post-judgment relief, the emphasis in the Federal Rules of Civil Procedure on “just” and “speedy” adjudication, see Fed. Rule Civ. Proc. 1, parallels the ideal of “a swift, flexible, and summary determination” of a habeas corpus petitioner’s claim. Preiser v. Rodriguez, 411 U. S. 475, 495 (1973). See also Fay v. Noia, 372 U. S. 391, 401-402 (1963); United States ex rel. Mattox v. Scott, 507 F. 2d 919, 923 (CA7 1974); Wallace v. Heinze, 351 F. 2d 39, 40 (CA9 1965), cert. denied, 384 U. S. 954 (1966). Rule 59 in particular is based on an “interest in speedy disposition and finality,” Silk v. Sandoval, 435 F. 2d 1266, 1268 (CA1), cert. denied, 402 U. S. 1012 (1971). Although some aspects of the Federal Rules of Civil Procedure may be inappropriate for habeas proceedings, see Harris v. Nelson, supra; Preiser, supra, at 495-496, the requirement of a prompt motion for reconsideration is well suited to the “special problems and character of such proceedings.” Harris v. Nelson, supra, at 296. Application of the strict time limits of Rules 52 (b) and 59 to motions for reconsideration of rulings on habeas corpus petitions, then, is thoroughly consistent with the spirit of the habeas corpus statutes.

Because respondent failed to comply with these “mandatory and jurisdictional” time limits, the judgment of the Court of Appeals must be

Reversed.

Mr. Justice Blackmun,

with whom Mr. Justice Rehnquist joins,

concurring.

I join the Court’s opinion but add the comment that, under slightly altered circumstances, respondent’s position might be sustained under Fed. Rule Civ. Proc. 60 (b)(1) or (6). This would be done by treating the District Court’s December 8, 1975, order as an order granting relief from judgment and the post-evidentiary-hearing order dated January 26, 1976, and entered January 28, as an order reinstating judgment. With a judgment thus newly entered, respondent’s notice of appeal would have been timely under Fed. Rule App. Proc. 4 (a) when it was filed on January 27. See Edwards v. Louisiana, 520 F. 2d 321 (CA5 1975), cert. denied, 423 U. S. 1089 (1976).

I would not decline to treat the matter under Rule 60 (b) merely because respondent did not label his initial motion for a new evidentiary hearing as a “Rule 60 (b) motion,” for that would exalt nomenclature over substance. 7 J. Moore, Federal Practice ¶ 60.42, p. 903 (1975) (“[Mjislabelled moving papers may be treated as a motion under 60 (b), in the absence of prejudice”). Certainly petitioner recognized in the District Court that Rule 60 (b) might provide a basis for the December 8 order; petitioner moved there unsuccessfully to vacate the order on the ground that respondent’s motion did not satisfy the “reasonable time” standard or meet the substantive categories of Rule 60 (b). Petitioner’s Memorandum of Law in Support of Motion to Vacate in No. 75 C 69 (ND Ill.), pp. 2-3; Brief for Petitioner in No. 76-1089 (CA7), p. 13.

The District Judge’s actions, in denominating his December 8 order as one granting respondent’s “motion for stay of execution of writ” and his January 28 order as one denying respondent’s “motion to reconsider,” are more of an obstacle. The District Judge, though noting that respondent’s motion was “untimely” (App. 120), evidently intended to permit re-examination of the issue of probable cause in light of the evidence to be presented by the State at the hearing set for January 1976. An obvious way for the District Court to permit such further examination was, of course, to set aside the original October 21 judgment under Rule 60 (b). Though the District Court made no explicit finding that the standards of Rule 60 (b)(1) or (6) were satisfied, it did deny sub silentio petitioner’s motion disputing the applicability of those subsections. Arguably the District Judge might not have intended to set aside the October 21 judgment until and unless the January hearing turned up evidence mandating a change in the grant of habeas. But where, as here, the District Judge acted on respondent’s motion to conduct an evidentiary hearing within 48 days of the original judgment — when the possibility of granting a retroactive 30-day extension of time for taking an appeal was still open — a Court of Appeals would properly be reluctant to interpret the District Judge’s ambiguous succession of orders as intending to preclude full appellate review of his habeas corpus determination. Were I sitting in review on the Court of Appeals, I might well have chosen to treat the December 8 order as one granting relief from judgment.

The difficulty with effecting any such rescue of the Court of Appeals’ jurisdiction over the appeal from the January 28 order, is that respondent has strenuously resisted the aid. Respondent, evidently fearing that the January 28 order would be treated as an order declining to set aside judgment under Rule 60 (b) — rather than as an order re-entering judgment which already had been set aside on December 8 under Rule 60 (b) — and fearing that the scope of review thus would be limited to determining whether there was abuse of discretion, urged in his reply brief in the Court of Appeals, p. 3, that “[i]n point of fact respondent’s motion was not filed under Rule 60, but filed pursuant to . . . 28 U. S. C. [§] 2254 and Townsend v. Sain, 372 U. S. 293 (1963), as is clear from the fac[e] of the motion.” And to deepen the difficulty, respondent added: “Indeed it is doubtful whether Rule 60 even applies in habeas cases.” Id., at 4 n. 1. Even in this Court, respondent has disavowed any reliance on Rule 60 (b), evidently preferring to bank on the possibility that the Federal Rules of Civil Procedure governing timeliness would be found not to apply in federal habeas proceedings. Brief in Opposition 7; Tr. of Oral Arg. 33-34. Under these circumstances, I see no obligation on this Court’s part to attempt to rescue respondent’s case on a Rule 60 (b) basis.

         In light of this disposition, it is unnecessary to reach any of the other questions presented. In addition to his jurisdictional point, petitioner contended that the Court of Appeals erred in finding the facts de novo on the issue of probable cause and in concluding that petitioner’s arrest was lawful. On the latter point, petitioner maintained that the arrest of four youths in the Browder home violated the Fourth and Fourteenth Amendments’ requirement of probable cause, Davis v. Mississippi, 394 U. S. 721 (1969), and, even assuming the existence of probable cause, that the Fourth and Fourteenth Amendments required the police to obtain an arrest warrant before entering the Browder home to make the arrests. The parties also have disputed whether litigation of petitioner’s Fourth Amendment claim on federal habeas corpus was barred either by Wainwright v. Sykes, 433 U. S. 72 (1977), or by Stone v. Powell, 428 U. S. 465 (1976). Finally, petitioner questioned the validity of the Seventh Circuit’s “unpublished opinion” rule. We leave these questions to another day.

       Respondent moved to dismiss the habeas corpus petition for “failure to state a claim upon which relief may be granted, pursuant to Rule 12 (b)(6) of the Federal Rules of Civil Procedure.” Respondent did not base his “motion to dismiss” solely on petitioner’s waiver of his claim of unlawful arrest; respondent also addressed the merits of the Fourth Amendment claim.

       The District Court held that petitioner’s failure to raise the issue at trial did not bar habeas corpus relief because it found, citing Fay v. Noia, 372 U. S. 391 (1963), that the failure was not the result of a deliberate tactical decision to forgo the claim.

         By untimeliness the District Court apparently meant respondent’s failure to request an evidentiary hearing prior to the court’s ruling on October 21. The court made no mention of the Federal Rules of Civil Procedure. The untimeliness of respondent’s motion under those Rules was first mentioned in petitioner’s motion to vacate the orders granting a stay and setting a date for an evidentiary hearing.

       A motion for a new trial may be made under Rule 59 (a). Rule 59 (b) provides that such a motion "shall be served not later than 10 days after the entry of the judgment.” Similarly, "[u]pon motion of a party made not later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly.” Rule 52 (b). Under Rule 59 (e), “[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.” Since respondent neglected to label his motion, it is impossible to tell whether the motion was based on Rule 59 (a), Rule 52 (b), or Rule 59 (e). Rule 6 (b) prohibits enlargement of the time period prescribed in all of these Rules.
      Because all three Rules contain the same 10-day time limit, it is unnecessary for purposes of this decision to determine whether respondent’s motion should be considered a motion for a new trial, a motion to amend or make additional findings, or a motion to alter or amend the judgment. We shall refer to the motion as one for rehearing or reconsideration, for such was the essence of the relief requested. See generally United States v. Dieter, 429 U. S. 6, 8-9 (1976).

       Petitioner acknowledged that under Rule 60 (b), which provides for relief from judgment under certain enumerated circumstances, “a court may modify a final order granting habeas relief after the ten day limit of Rules 52 and 59”; but petitioner argued that respondent’s motion was “insufficient” under Rule 60 (b). This asserted insufficiency was twofold: The motion was not made within a "reasonable time,” as required by the Rule; more significantly, it did not contain allegations that would qualify for relief under any of the Rule’s six categories. Respondent merely sought to convince the court that it had erred in granting relief without holding an evidentiary hearing; respondent’s purpose was to introduce additional, not newly discovered, evidence.

       Rule 60 (b), unlike Rules 52 (b) and 59, does not contain a 10-day time limit. A motion for relief from judgment under Rule 60 (b), however, does not toll the time for appeal from, or affect the finality of, the original judgment. See 7 J. Moore, Federal Practice ¶ 60.29, pp. 413-414 (1975). Thus, while the District Court lost jurisdiction 10 days after entry of the October 21 judgment to grant relief under Rule 52 (b) or 59, its power to grant relief from judgment under Rule 60 (b) still existed on Januarjr 26. A timely appeal may be taken under Fed. Rule App. Proc. 4 (a) from a ruling on a Rule 60 (b) motion. The Court of Appeals may review the ruling only for abuse of discretion, however, and an appeal from denial of Rule 60 (b) relief does not bring up the underlying judgment for review. See Daily Mirror, Inc. v. New York News, Inc., 533 F. 2d 53 (CA2), cert. denied, 429 U. S. 862 (1976); Brennan v. Midwestern United Life Ins. Co., 450 F. 2d 999 (CA7 1971), cert. denied, 405 U. S. 921 (1972); 7 J. Moore, Federal Practice ¶ 60.19, p. 231; ¶ 60.30 [3], pp. 430-431 (1975).

       Respondent has insisted throughout this litigation that his motion for an evidentiary hearing was not based on Rule 60 (b). This position derives in part from respondent’s consistently held view that until January 26, 1976, there was no final judgment from which relief could be sought or obtained, and in part from his view that the Federal Rules of Civil Procedure are not applicable in habeas corpus proceedings. It may be that respondent desired as well to avoid the force of petitioner’s arguments as to the limited scope of appellate review of a district court's disposition of a Rule 60 (b) motion. See n. 7, supra. In any event, since respondent has represented to the Court of Appeals and to this Court that his motion was not based on Rule 60 (b), and since the District Court did not construe it as such, we find it unnecessary to address the question whether the decision of the Court of Appeals could be sustained on the theory that despite the absence of any reference to Rule 60 (b) or any of its specified grounds, the action of the District Court was reversible as an improper denial of relief under that Rule.

       Rule 11 of the new Federal Rules Governing 28 U. S. C. § 2254 Cases provides:
      “The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules.”
      The new Rules are applicable to cases commenced on or after February 1, 1977. They have no bearing on the instant case, which was commenced on January 8, 1975.
      It is undisputed that Fed. Rule App. Proc. 4 (a) is applicable to habeas corpus proceedings. See Developments in the Law' — Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1192, and n. 262 (1970)).

       The Court stated in Walker v. Johnston that there could be situations where “on the facts admitted, it may appear that, as matter of law, the prisoner is entitled to the writ and to a discharge.” 312 U. S., at 284. Several Courts of Appeals have acknowledged the power of a federal district court to discharge a habeas corpus petitioner from state custody without conducting an evidentiary hearing, when the facts are undisputed and establish a denial of petitioner’s constitutional rights. E. g., Gladden v. Gidley, 337 F. 2d 575, 578 (CA9 1964) (dictum); United States ex rel. Meers v. Wilkins, 326 F. 2d 135, 140 (CA2 1964) (Marshall, J.); Dorsey v. Gill, 80 U. S. App. D. C. 9, 18, 148 F. 2d 857, 866, cert. denied, 325 U. S. 890 (1945). We express no view on whether or not the District Court erred in not conducting an evidentiary hearing before issuing its order directing petitioner’s conditional discharge.

       See, e. g., Gladden, supra; Hunter v. Thomas, 173 F. 2d 810 (CA10 1949).

       See, e. g., United States ex rel. McNair v. New Jersey, 492 F. 2d 1307 (CA3 1974); United States ex rel. Mitchell v. Follette, 358 F. 2d 922 (CA2 1966); Gladden, supra. The better procedure, of course, would be for the custodian “to indicate, in any submission asking dismissal as a matter of law, the proceedings to which it deems itself entitled if its request should be denied.” Mitchell, supra, at 929. See also McNair, supra, at 1309; Gladden, supra, at 578.

       Respondent’s contention that the "traditional and virtually unquestioned practice” in habeas corpus proceedings contemplates an eviden-tiary hearing in cases like this one misunderstands the import of Dieter and Healy. The Court’s resort to traditional practice in those cases was predicated explicitly on the absence of a relevant statute or rule governing the tolling of the time to appeal. It had nothing to do with the practice or procedure of the underlying criminal trial. Where, as here, a rule governs the procedure in question, the problem addressed in Dieter and Healy is absent.

       Respondent did assume, however, that Rule 12 (b)(6) is applicable; he denominated his original response to the habeas petition a “motion to dismiss” explicitly based on that Rule. See n. 2, supra. Respondent’s conception — which lies at the heart of his view that the lack of an evidentiary hearing rendered the order of October 21 nonfinal — seems to have been that a Rule 12 (b) (6) motion is an appropriate motion in a habeas corpus proceeding, and that upon denial of such a motion, the case should proceed through answer, discovery, and trial. This view is erroneous. See Preiser v. Rodriguez, 411 U. S. 475, 496 (1973). The custodian’s response to a habeas corpus petition is not like a motion to dismiss. The procedure for responding to the application for a writ of habeas corpus, unlike the procedure for seeking correction of a judgment, is set forth in the habeas corpus statutes and, under Rule 81(a)(2), takes precedence over the Federal Rules.