author:
      Justice Brennan Justice Powell,
      Justice Rehnquist,

text:
    REED et al. v. ROSS
    No. 83-218.
    Argued March 27, 1984
    Decided June 27, 1984

      Brennan, J., delivered the opinion of the Court, in which White, Marshall, Powell, and Stevens, JJ:, joined. Powell, J., filed a concurring opinion, post, p. 20. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and Blackmun and O’Connor, JJ., joined, post, p. 21.

      Richard N. League, Special Deputy Attorney General of North Carolina, argued the cause for petitioners. With him on the brief was Rufus L. Edmisten, Attorney Generali

      Edwin Kneedler argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, John H. Garvey, and Louis M. Fischer.

      Barry Nakell, by appointment of the Court, 464 U. S. 1036, argued the cause and filed a brief for respondent.
   Justice Brennan

delivered the opinion of the Court.

In March 1969, respondent Daniel Ross was convicted of first-degree murder in North Carolina and sentenced to life imprisonment. At trial, Ross had claimed lack of malice and self-defense. In accordance with well-settled North Carolina law, the trial judge instructed the jury that Ross, the defendant, had the burden of proving each of these defenses. Six years later, this Court decided Mullaney v. Wilbur, 421 U. S. 684 (1975), which struck, down, as violative of due process, the requirement that the defendant bear the burden of proving lack of malice. Id., at 704. Two years later, Hankerson v. North Carolina, 432 U. S. 233 (1977), held that Mullaney was to have retroactive application. The question presented in this case is whether Ross’ attorney forfeited Ross’ right to relief under Mullaney and Hankerson by failing, several years before those cases were decided, to raise on appeal the unconstitutionality of the jury instruction on the burden of proof.

I

A

In 1970, this Court decided In re Winship, 397 U. S. 358, the first case in which we directly addressed the constitutional foundation of the requirement that criminal guilt be established beyond a reasonable doubt. That case held that “[l]est there remain any doubt about the constitutional stature of the reasonable-doubt standard, . . . the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id., at 364.

Five years after Winship, the Court applied the principle to the related question of allocating burdens of proof in a criminal case. Mullaney v. Wilbur, supra. Mullaney arose in the context of a Maine statute providing that “[whoever unlawfully kills a human being with malice aforethought, either express or implied, is guilty of murder and shall be punished by imprisonment for life.” Id., at 686, n. 3. The trial judge had instructed the jury under this statute that “if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation.” Id., at 686. Thus, despite the fact that malice was an element of the offense of murder, the law of Maine provided that, if the defendant contended that he acted without malice, but rather “in the heat of passion on sudden provocation,” he, not the prosecution, was required to bear the burden of persuasion by a “fair preponderance of the evidence.” Ibid. Noting that “[t]he result, in a case such as this one where the defendant is required to prove the critical fact in dispute, is to increase further the likelihood of an erroneous murder conviction,” id., at 701, Mullaney held that due process requires the prosecution to bear the burden of persuasion with respect to each element of a crime.

Finally, Hankerson v. North Carolina, supra, held that Mullaney was to have retroactive application. In reaching this conclusion, the Court followed Ivan V. v. City of New York, 407 U. S. 203 (1972), which had held that Winship was retroactively applicable. Quoting Ivan V. and Winship, the Court stated:

“‘The [reasonable-doubt] standard provides concrete substance for the presumption of innocence — that bedrock “axiomatic and elementary” principle whose “enforcement lies at the foundation of the administration of our criminal law”. . . . “Due process commands that no man shall lose his liberty unless the Government has borne its burden of . . . convincing the factfinder of his guilt.” To this end, the reasonable-doubt standard is indispensable, for it “impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.’”” Hankerson, supra, at 241 (quoting Ivan V., supra, at 204-205 (quoting Winship, supra, at 363-364)).

Hankerson further stated that, regardless of the administrative costs involved in the retroactive application of a new constitutional doctrine, “ ‘[w]here the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule [is] given complete retroactive effect.’ ” 432 U. S., at 243 (quoting Ivan V., supra, at 204) (emphasis in original). In this case, we are called upon again, in effect, to revisit our decision in Hankerson with respect to a particular set of administrative costs — namely, the costs imposed on state courts by the federal courts’ exercise of their habeas corpus jurisdiction under 28 U. S. C. § 2254.

B

Ross was tried for murder under the same North Carolina burden-of-proof law that gave rise to Hankerson’s claim in Hankerson v. North Carolina. That law, followed in North Carolina for over 100 years, was summarized by the North Carolina Supreme Court in State v. Hankerson, 288 N. C. 632, 647, 220 S. E. 2d 575, 586 (1975), as follows:

“[W]hen it is established by a defendant’s judicial admission, or the State proves beyond a reasonable doubt that the defendant intentionally inflicted a wound upon the deceased with a deadly weapon which proximately caused death, the law raises two presumptions against the defendant: (1) the killing was unlawful, and (2) it was done with malice. Nothing else appearing in the case the defendant would be guilty of murder in the second degree. When these presumptions arise the burden devolves upon the defendant to prove to the satisfaction of the jury the legal provocation which will rob the crime of malice and reduce it to manslaughter or which will excuse the killing altogether on the ground of self-defense. If the defendant rebuts the presumption of malice only, the presumption that the killing was unlawful remains, making the crime manslaughter.”

In accordance with this well-settled state law, the jury at Ross’ trial was instructed as follows:

“[I]n a case where a person is killed as a result of a gun shot wound fired intentionally . . . where the State has satisfied you beyond a reasonable doubt that the defendant intentionally assaulted the deceased with a deadly weapon and that such assault caused her death there are two presumptions that arise in favor of the State: One, that the killing was unlawful; two, that it was done with malice; and the burden then shifts to the defendant under those circumstances to satisfy the jury, not beyond a reasonable doubt nor by the greater weight of the evidence, but to satisfy the jury that the killing was not done with malice if he would acquit himself of a charge of murder in the second degree, that is if he would expect and ask at your hands a verdict of less than guilty of murder in the second degree the burden would be upon him under the circumstances to satisfy the jury that the killing was not done with malice and if he would exonerate himself and show that the killing was not unlawful then the burden is upon him to satisfy the jury . . . that the killing was done ... for some reason recognized by law as justifiable; and he relies here on self-defense.” App. 23-24 (emphasis deleted).

On the basis of these instructions, Ross was convicted of first-degree murder. Although Ross appealed his conviction to the North Carolina Supreme Court on a number of grounds, In re Burrus, 275 N. C. 517, 169 S. E. 2d 879 (1969), he did not challenge the constitutionality of these instructions — we may confidently assume this was because they were sanctioned by a century of North Carolina law and because Mullaney was yet six years away.

Ross challenged the jury instructions for the first time in 1977, shortly after this Court decided Hankerson. He initially did so in a petition filed in state court for postconviction relief, where his challenge was summarily rejected at both the trial and appellate levels. See App. to Brief for Petitioners A3-A8. After exhausting his state remedies, Ross brought the instant federal habeas proceeding in the United States District Court for the Eastern District of North Carolina under 28 U. S. C. § 2254. The District Court, however, held that habeas relief was barred because Ross had failed to raise the issue on appeal as required by North Carolina law, App. 27, and the Court of Appeals for the Fourth Circuit dismissed Ross’ appeal summarily. 660 F. 2d 492 (1982). On Ross’ first petition for certiorari, however, this Court vacated the judgment of the Court of Appeals and remanded the case for further consideration in light of Engle v. Isaac, 456 U. S. 107 (1982), and United States v. Frady, 456 U. S. 152 (1982), two cases in which we addressed the “cause and prejudice” standard for procedural bars under §2254. 456 U. S. 921 (1982). On remand, the Court of Appeals reversed, holding that Ross’ claim met the “cause and prejudice” requirements and that the District Court had therefore erred in denying his petition for a writ of habeas corpus. 704 F. 2d 705 (1983). The Court of Appeals found the “cause” requirement satisfied because the Mullaney issue was so novel at the time of Ross’ appeal that Ross’ attorney could not reasonably be expected to have raised it. 704 F. 2d, at 708-709. And the State had conceded the existence of “prejudice” in light of evidence that had been introduced to indicate that Ross might have acted reflexively in self-defense. The Court of Appeals went on to hold that the jury instruction concerning the burden of proof for both malice and self-defense violated Mullaney. 704 F. 2d, at 709. We granted certiorari, 464 U. S. 1007 (1983), to determine whether the Court of Appeals erred in concluding that Ross had “cause” for failing to raise the Mullaney question on appeal. We now affirm.

II

A

Our decisions have uniformly acknowledged that federal courts are empowered under 28 U. S. C. § 2254 to look beyond a state procedural forfeiture and entertain a state prisoner’s contention that his constitutional rights have been violated. See, e. g., Francis v. Henderson, 425 U. S. 536, 538 (1976); Fay v. Noia, 372 U. S. 391, 398-399 (1963). See generally W. Duker, A Constitutional History of Habeas Corpus 181-211 (1980). The more difficult question, and the one that lies at the heart of this case is: What standards should govern the exercise of the habeas court’s equitable discretion in the use of this power?

A habeas court’s decision whether to review the merits of a state prisoner’s constitutional claim, when the prisoner has failed to follow applicable state procedural rules in raising the claim, implicates two sets of competing concerns. On the one hand, there is Congress’ expressed interest in providing a federal forum for the vindication of the constitutional rights of state prisoners. There can be no doubt that in enacting § 2254, Congress sought to “interpose the federal courts between the States and the people, as guardians of the people’s federal rights — to protect the people from unconstitutional action.” Mitchum v. Foster, 407 U. S. 225, 242 (1972).

On the other hand, there is the State’s interest in the integrity of its rules and proceedings and the finality of its judgments, an interest that would be undermined if the federal courts were too free to ignore procedural forfeitures in state court. The criminal justice system in each of the 50 States is structured both to determine the guilt or innocence of defendants and to resolve all questions incident to that determination, including the constitutionality of the procedures leading up to the verdict. Each State’s complement of procedural rules facilitates this complex process, channeling, to the extent possible, the resolution of various types of questions to the stage of the judicial process at which they can be resolved most fairly and efficiently.

North Carolina’s rule requiring a defendant initially to raise a legal issue on appeal, rather than on postconviction review, performs such a function. It affords the state courts the opportunity to resolve the issue shortly after trial, while evidence is still available both to assess the defendant’s claim and to retry the defendant effectively if he prevails in his appeal. See Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 147 (1970). This type of rule promotes not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case. To the extent that federal courts exercise their § 2254 power to review constitutional claims that were not properly raised before the state court, these legitimate state interests may be frustrated: evidence may no longer be available to evaluate the defendant’s constitutional claim if it is brought to federal court long after his trial; and it may be too late to retry the defendant effectively if he prevails in his collateral challenge. Thus, we have 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.” Francis v. Henderson, supra, at 539. See also Fay v. Noia, supra, at 425-426.

Where, as in this case, a defendant has failed to abide by a State’s procedural rule requiring the exercise of legal expertise and judgment, the competing concerns implicated by the exercise of the federal court’s habeas corpus power have come to be embodied in the “cause and prejudice” requirement: When a procedural default bars litigation of a constitutional claim in state court, a state prisoner may not obtain federal habeas corpus relief absent a showing of “cause and actual prejudice.” Engle v. Isaac, 456 U. S., at 129; Wainwright v. Sykes, 433 U. S. 72 (1977). See id., at 91-94 (Burger, C. J., concurring); id., at 94-95 (Stevens, J., concurring). Cf. id., at 98-99 (White, J., concurring in judgment). We therefore turn to the question whether the cause-and-prejudice test was met in this case.

B

As stated above, petitioners have conceded that Ross suffered “actual prejudice” as a result of the trial court’s instruction imposing on him the burden of proving self-defense or lack of malice. 704 F. 2d, at 707. At trial, Ross testified that he had been stabbed in the neck immediately prior to the shooting for which he was convicted and that when he felt the stab wound he “turned around shooting.” App. 18. In corroboration of this testimony, another witness stated that Ross was bleeding from the neck when Ross left the scene of the shooting. Therefore, were it not for the fact that Ross was required to bear the burden of proving lack of malice and self-defense, he might not have been convicted of first-degree murder. Thus the only question for decision is whether there was “cause” for Ross’ failure to raise the Mullaney issue on appeal.

The Court of Appeals held that there was cause for Ross’ failure to raise the Mullaney issue on appeal because of the “novelty” of the issue at the time. As the Court of Appeals characterized the legal basis for raising the Mullaney issue at the time of Ross’ appeal, there was merely “[a] hint here and there voiced in other contexts,” which did not “offe[r] a reasonable basis for a challenge to frequently approved jury instructions which had been used in North Carolina, and many other states, for over a century.” 704 F. 2d, at 708.

Engle v. Isaac, supra, left open the question whether the novelty of a constitutional issue at the time of a state-court proceeding could, as a general matter, give rise to cause for defense counsel’s failure to raise the issue in accordance with applicable state procedures. Id., at 131. Today, we answer that question in the affirmative.

Because of the broad range of potential reasons for an attorney’s failure to comply with a procedural rule, and the virtually limitless array of contexts in which a procedural default can occur, this Court has not given the term “cause” precise content. See Wainwright v. Sykes, supra, at 87. Nor do we attempt to do so here. Underlying the concept of cause, however, is at least the dual notion that, absent exceptional circumstances, a defendant is bound by the tactical decisions of competent counsel, Wainwright v. Sykes, supra, at 91, and n. 14; Henry v. Mississippi, 379 U. S. 443, 451 (1965), and that defense counsel may not flout state procedures and then turn around and seek refuge in federal court from the consequences of such conduct, Wainwright v. Sykes, supra, at 89-90; Engle v. Isaac, supra, at 130. A defense attorney, therefore, may not ignore a State’s procedural rules in the expectation that his client’s constitutional claims can be raised at a later date in federal court. Wainwright v. Sykes, supra, at 89; Engle v. Isaac, supra, at 128-129. Similarly, he may not use the prospect of federal habeas corpus relief as a hedge against the strategic risks he takes in his client’s defense in state court. Wainwright v. Sykes, 438 U. S., at 96-97 (Stevens, J., concurring); id., at 98-99 (White, J., concurring in judgment). In general, therefore, defense counsel may not make a tactical decision to forgo a procedural opportunity — for instance, an opportunity to object at trial or to raise an issue on appeal — and then, when he discovers that the tactic has been unsuccessful, pursue an alternative strategy in federal court. The encouragement of such conduct by a federal court on habeas corpus review would not only offend generally accepted principles of comity, but would also undermine the accuracy and efficiency of the state judicial systems to the detriment of all concerned. Procedural defaults of this nature are, therefore, “inexcusable,” Estelle v. Williams, 425 U. S. 501, 513 (1976) (Powell, J., concurring), and cannot qualify as “cause” for purposes of federal habeas corpus review.

On the other hand, the cause requirement may be satisfied under certain circumstances when a procedural failure is not attributable to an intentional decision by counsel made in pursuit of his client’s interests. And the failure of counsel to raise a constitutional issue reasonably unknown to him is one situation in which the requirement is met. If counsel has no reasonable basis upon which to formulate a constitutional question, setting aside for the moment exactly what is meant by “reasonable basis,” see infra, at 16-18, it is safe to assume that he is sufficiently unaware of the question’s latent existence that we cannot attribute to him strategic motives of any sort.

Counsel’s failure to raise a claim for which there was no reasonable basis in existing law does not seriously implicate any of the concerns that might otherwise require deference to a State’s procedural bar. Just as it is reasonable to assume that a competent lawyer will fail to perceive the possibility of raising such a claim, it is also reasonable to assume that a court will similarly fail to appreciate the claim. It is in the nature of our legal system that legal concepts, including constitutional concepts, develop slowly, finding partial acceptance in some courts while meeting rejection in others. Despite the fact that a constitutional concept may ultimately enjoy general acceptance, as the Mullaney issue currently does, when the concept is in its embryonic stage, it will, by hypothesis, be rejected by most courts. Consequently, a rule requiring a defendant to raise a truly novel issue is not likely to serve any functional purpose. Although there is a remote possibility that a given state court will be the first to discover a latent constitutional issue and to order redress if the issue is properly raised, it is far more likely that the court will fail to appreciate the claim and reject it out of hand. Raising such a claim in state court, therefore, would not promote either the fairness or the efficiency of the state criminal justice system. It is true that finality will be disserved if the federal courts reopen a state prisoner’s case, even to review claims that were so novel when the cases were in state court that no one would have recognized them. This Court has never held, however, that finality, standing alone, provides a sufficient reason for federal courts to compromise their protection of constitutional rights under § 2254.

In addition, if we were to hold that the novelty of a constitutional question does not give rise to cause for counsel’s failure to raise it, we might actually disrupt state-court proceedings by encouraging defense counsel to include any and all remotely plausible constitutional claims that could, some day, gain recognition. Particularly disturbed by this prospect, Judge Haynsworth, writing for the Court of Appeals in this case, stated:

“If novelty were never cause, counsel on appeal would be obliged to raise and argue every conceivable constitutional claim, no matter how far fetched, in order to preserve a right for post-conviction relief upon some future, unforeseen development in the law. Appellate courts are already overburdened with meritless and frivolous cases and contentions, and an effective appellate lawyer does not dilute meritorious claims with frivolous ones. Lawyers representing appellants should be encouraged to limit their contentions on appeal at least to those which may be legitimately regarded as debatable.” 704 F. 2d, at 708.

Accordingly, we hold that where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures. We therefore turn to the question whether the Mullaney issue, which respondent Ross has raised in this action, was sufficiently novel at the time of the appeal from his conviction to excuse his attorney’s failure to raise it at that time.

C

As stated above, the Court of Appeals found that the state of the law at the time of Ross’ appeal did not offer a “reasonable basis” upon which to challenge the jury instructions on the burden of proof. 704 F. 2d, at 708. We agree and therefore conclude that Ross had cause for failing to raise the issue at that time. Although the question whether an attorney has a “reasonable basis” upon which to develop a legal theory may arise in a variety of contexts, we confine our attention to the specific situation presented here: one in which this Court has articulated a constitutional principle that had not been previously recognized but which is held to have retroactive application. In United States v. Johnson, 457 U. S. 537 (1982), we identified three situations in which a “new” constitutional rule, representing “‘a clear break with the past,’” might emerge from this Court. Id., at 549 (quoting Desist v. United States, 394 U. S. 244, 258-259 (1969)). First, a decision of this Court may explicitly overrule one of our precedents. United States v. Johnson, 457 U. S., at 551. Second, a decision may “overtur[n] a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority' has expressly approved.” Ibid. And, finally, a decision may “disapproval a practice this Court arguably has sanctioned in prior cases.” Ibid. By definition, when a case falling into one of the first two categories is given retroactive application, there will almost certainly have been no reasonable basis upon which an attorney previously could have urged a state court to adopt the position that this Court has ultimately adopted. Consequently, the failure of a defendant’s attorney to have pressed such a claim before a state court is sufficiently excusable to satisfy the cause requirement. Cases falling into the third category, however, present a more difficult question. Whether an attorney had a reasonable basis for pressing a claim challenging a practice that this Court has arguably sanctioned depends on how direct this Court’s sanction of the prevailing practice had been, how well entrenched the practice was in the relevant jurisdiction at the time of defense counsel’s failure to challenge it, and how strong the available support is from sources opposing the prevailing practice.

This case is covered by the third category. At the time of Ross’ appeal, Leland v. Oregon, 343 U. S. 790 (1952), was the primary authority addressing the due process constraints upon the imposition of the burden of proof on a defendant in a criminal trial. In that case, the Court held that a State may require a defendant on trial for first-degree murder to bear the burden of proving insanity beyond a reasonable doubt, despite the fact that the presence of insanity might tend to imply the absence of the mental state required to support a conviction. See id., at 806 (Frankfurter, J., dissenting). Leland thus confirmed “the long-accepted rule . . . that it was constitutionally permissible to provide that various affirmative defenses were to be proved by the defendant,” Patterson v. New York, 432 U. S. 197, 211 (1977), and arguably sanctioned the practice by which a State crafts an affirmative defense to shift to the defendant the burden of disproving an essential element of a crime. As stated above, North Carolina had consistently engaged in this practice with respect to the defenses of lack of malice and self-defense for over a century. See supra, at 5-7. Indeed, it was not until five years after Ross’ appeal that the issue first surfaced in the North Carolina courts, and even then it was rejected out of hand. State v. Sparks, 285 N. C. 631, 643-644, 207 S. E. 2d 712, 719 (1974). See also State v. Wetmore, 287 N. C. 344, 353-354, 215 S. E. 2d 51, 56-57 (1975); State v. Harris, 23 N. C. App. 77, 79, 208 S. E. 2d 266, 268 (1974).

Moreover, prior to Ross’ appeal, only one Federal Court of Appeals had held that it was unconstitutional to require a defendant to disprove an essential element of a crime for which he is charged. Stump v. Bennett, 398 F. 2d 111 (CA8 1968). Even that case, however, involved the burden of proving an alibi, which the Court of Appeals described as the “denfial of] the possibility of [the defendant’s] having committed the crime by reason of being elsewhere.” Id., at 116. The court thus contrasted the alibi defense with “an affirmative defense [which] generally applies to justification for his admitted participation in the act itself,” ibid., and distinguished Leland on that basis, 398 F. 2d, at 119. In addition, at the time of Ross’ appeal, the Superior Court of Connecticut had struck down, as violative of due process, a statute making it unlawful for an individual to possess burglary tools “without lawful excuse, the proof of which excuse shall be upon him.” State v. Nales, 28 Conn. Supp. 28, 29, 248 A. 2d 242, 243 (1968). Because these cases provided only indirect support for Ross’ claim, and because they were the only cases that would have supported Ross’ claim at all, we cannot conclude that they provided a reasonable basis upon which Ross could have realistically appealed his conviction.

In Engle v. Isaac, 456 U. S. 107 (1982), this Court reached the opposite conclusion with respect to the failure of a group of defendants to raise the Mullaney issue in 1975. That case differs from this one, however, in two crucial respects. First, the procedural defaults at issue there occurred five years after we decided Winship, which held that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Winship, 397 U. S., at 364. As the Court in Engle v. Isaac stated, Winship “laid the basis for [the habeas petitioners’] constitutional claim.” 456 U. S., at 131. Second, during those five years, “numerous courts agreed that the Due Process Clause requires the prosecution to bear the burden of disproving certain affirmative defenses” (footnotes omitted). See id., at 132, n. 40 (citing cases). Moreover, as evidence of the reasonableness of the legal basis for raising the Mullaney issue in 1975, Engle v. Isaac emphasized that “dozens of defendants relied upon [Winship] to challenge the constitutionality of rules requiring them to bear a burden of proof.” 456 U. S., at 131-132. None of these bases of decision relied upon in Engle v. Isaac is present in this case.

H"l hH h — I

We therefore conclude that Ross’ claim was sufficiently novel in 1969 to excuse his attorney’s failure to raise the Mullaney issue at that time. Accordingly, we affirm the decision of the Court of Appeals with respect to the question of “cause.”

It is so ordered.

Justice Powell,

concurring.

I join the opinion and judgment of the Court. I write separately only to make clear that I continue to adhere to the views expressed in my concurring opinion in Hankerson v. North Carolina, 432 U. S. 233, 246-248 (1977).

In Hankerson, I agreed with the Court that the new constitutional rule announced in Mullaney v. Wilbur, 421 U. S. 684 (1975), should apply retroactively to cases on direct review. • In this case, the rule of Mullaney has been applied retroactively on collateral review. For the reasons stated by Justice Harlan in Mackey v. United States, 401 U. S. 667, 675-702 (1971) (separate opinion), I would apply new constitutional rules retroactively on collateral review only in exceptional cases. See Hankerson, supra, at 247-248 (Powell, J., concurring). The State, however, has not challenged the retroactive application of Mullaney in this case. Thus, the issue whether that retroactive application is proper has not been presented to this Court.

Assuming, as we must, that Mullaney may be applied retroactively in this case, and for the reasons set forth in the Court’s opinion today, I agree that Ross has shown “cause” for failing to raise his constitutional claim in a timely fashion.

Justice Rehnquist,

with whom The Chief Justice, Justice Blackmun, and Justice O’Connor join, dissenting.

Today’s decision will make less sense to laymen than it does to lawyers. Respondent Ross was convicted of first-degree murder in a North Carolina trial court in 1969. In 1977, eight years later, he instituted the present federal habeas action seeking to have his conviction set aside on the ground that an instruction given by the trial judge improperly placed upon him, rather than on the State, the burden of proving the defenses of “lack of malice” and “self-defense.” Today, 15 years after the trial, the Court holds that Ross’ conviction must be nullified on federal constitutional grounds. Responding to the State’s contention that Ross never raised any objection to the instruction given by the trial judge, and that North Carolina law requires such an objection, the Court blandly states that no competent lawyer in 1969 could have expected that such an objection would have been sustained, because the law was to the contrary. Consequently, we have the anomalous situation of a jury verdict in a case tried properly by then-prevailing constitutional standards being set aside because of legal developments that occurred long after the North Carolina conviction became final.

Along its way to this troubling result, the Court reaffirms the importance of the principles of comity and orderly administration of justice that underlie our decisions in such cases as Wainwright v. Sykes, 433 U. S. 72 (1977). It fully concedes the application of these principles on federal habeas review through the “cause and prejudice” standard adopted in Wainwright v. Sykes. Ante, at 11. The Court’s seemingly straightforward determination of “cause” in this instance also involves a labyrinthine treatment of our prior decisions that flouts both common sense and significantly bends our decisions in Hankerson v. North Carolina, 432 U. S. 233 (1977), and Engle v. Isaac, 456 U. S. 107 (1982).

The District Court in this case held that respondent failed to satisfy the “cause” standard of Wainwright v. Sykes, and thus, his claims were barred by the State’s procedural default rule, which required him to at least raise the issue on direct appeal. Like the Court of Appeals, the Court proposes to adopt “novelty” as a possible form of “cause” under Wainwright v. Sykes to justify ignoring the State’s procedural default rule. But this equating of novelty with cause pushes the Court into a conundrum which it refuses to recognize. The more “novel” a claimed constitutional right, the more unlikely a violation of that claimed right undercuts the fundamental fairness of the trial. To untie this knot in logic, the Court proposes a definition of novelty that makes a claim novel if the legal basis for asserting the claim is not reasonably available. Ante, at 15-16. This standard, of course, has no meaningful content independent of the factual setting in which it is applied. The Court’s attempt to give content to this novelty standard, however, is simply too facile; under its application, virtually any new constitutional claim can be deemed “novel.”

The starting point for the Court’s evaluation of respondent’s novelty claim should be our decision in In re Winship, 397 U. S. 358 (1970), which initiated a line of cases culminating, one would hope, in Sandstrom v. Montana, 442 U. S. 510 (1979). The Court in Winship held that the Due Process Clause of the Constitution required the State to prove the elements of a crime “beyond a reasonable doubt.” But the only issue in Winship that was treated as novel was whether the same burden of proof requirements applied to juvenile trials. With respect to adults the Court treated this question as settled by a long line of earlier decisions, ranging in date of decision from Miles v. United States, 103 U. S. 304 (1881), to Holland v. United States, 348 U. S. 121 (1954). The Court stated:

“Expressions in many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required.” 397 U. S., at 362.

In short, just a year after respondent’s conviction, this Court regarded as well established the principle that in an adult trial the State was constitutionally required to bear the burden of proof as to “every fact necessary to constitute the crime . . . charged.” Id., at 364.

Our decision in Winship was held fully retroactive in Ivan V. v. City of New York, 407 U. S. 203 (1972). Three years later, in Mullaney v. Wilbur, 421 U. S. 684 (1975), we held that it was contrary to our Winship decision to require a defendant in a murder prosecution to prove that he acted in the heat of passion or sudden provocation in order to reduce the offense to manslaughter. The Court held that the constitutional interests described in Winship were “implicated to a greater degree in this case than they were in Winship itself.” 421 U. S., at 700.

The Mullaney decision was given retroactive effect in Hankerson v. North Carolina, supra. In reaching this decision, however, the Court dealt with the State’s argument that retroactive application of Mullaney v. Wilbur would have a serious, adverse impact on the administration of justice in this country because of the number of potential retrials that might be required, by reaffirming the principles enunciated in Ivan V. and by stating:

“Moreover, we are not persuaded that the impact on the administration of justice in those States that utilize the sort of burden-shifting presumptions involved in this ease will be as devastating as respondent asserts. If the validity of such burden-shifting presumptions were as well settled in the States that have them as respondent asserts, then it is unlikely that prior to Mullaney many defense lawyers made appropriate objections to jury instructions incorporating those presumptions. Petitioner made none here. The North Carolina Supreme Court passed on the validity of the instructions anyway. The States, if they wish, may be able to insulate past convictions by enforcing the normal and valid rule that failure to object to a jury instruction is a waiver of any claim of error.” 432 U. S., at 244, n. 8.

If North Carolina took any solace from this Court’s explicit statement in Hanker son that North Carolina need not worry about having to retry murders so long as it applied a contemporaneous-objection rule, today’s opinion shows that its reliance was quite unjustified. The Court today does a complete about-face from Hankerson and, without even mentioning the above-quoted language, holds that the state court may not bar the belated assertion of such a claim by application of a contemporaneous-objection rule. The Court goes on to conclude that the claim based upon the allocation of proof in the instructions was “novel” in 1969, because the leading case on point at that time was Leland v. Oregon, 343 U. S. 790 (1952), which held that the State might require a defendant to bear the burden of proving affirmative defenses. But the holding of Leland was reaffirmed in Patterson v. New York, 432 U. S. 197 (1977), indicating that our decision in Leland did not speak directly to the issues involved in Mullaney v. Wilbur. Further, far from being regarded as the “leading case” on the subject in 1969, Leland v. Oregon was only mentioned as one of a number of cases in a string citation for the general proposition approved in Winship. 397 U. S., at 362.

Finally, the Court asserts no convincing basis for distinguishing respondent’s claims from those rejected in our decision in Engle v. Isaac, 456 U. S. 107 (1982). In Engle v. Isaac we determined that claims similar to respondent’s hardly qualified as novel, their assertion coming at least four and one-half years after Winship. Though we stated that Winship laid the basis for the claims asserted in Engle v. Isaac, we also expressly stated that the legal basis on which Winship rested was perceived earlier by other courts. 456 U. S., at 131, n. 39. The Court now distinguishes those other cases essentially on their facts, while never coming to grips with the fact that the reasoning employed in State v. Nales, 28 Conn. Supp. 28, 248 A. 2d 242 (1968), and Stump v. Bennett, 398 F. 2d 111 (CA8 1968), formed the framework for respondent’s claims asserted here.

We are reduced by this bizarre line of reasoning to the following conclusions: Winship, decided in 1970, simply reaffirmed a long line of existing cases when it held that the burden of proof as to the elements of the crime must be borne by the State “beyond a reasonable doubt”; and Mullaney v. Wilbur, decided in 1975, considered this principle even more applicable to instructions on elements of the crime in a murder trial than was true of the finding of delinquency in Winship. In other words, Mullaney was an a fortiori case from Winship, and Winship announced a principle which had been settled many years ago by decisions of this Court.

But, it seems, lawyers are not required to reason in quite the same manner as judges do. A lawyer in North Carolina, one year before Winship announced that the constitutional requirement of proof beyond a reasonable doubt had been long settled in the law, had no “reasonable basis” upon which to challenge the jury instructions given by the North Carolina trial court in this case. Either one or the other of these modes of reasoning, it seems to me, must be wrong.

I would conclude that there was an adequate basis for raising an objection in this case, and that the State’s interests in the finality of its judgments require an attorney to raise an objection when an instruction violates a constitutional requirement of the allocation of burden of proof which this Court held one year later had been long settled. I would reverse the judgment of the Court of Appeals.

       As the Court in Mullaney explained, the trial court “emphasized that ‘malice aforethought and heat of passion on sudden provocation are two inconsistent things’ . . . ; thus by proving the latter the defendant would negate the former and reduce the homicide from murder to manslaughter.” 421 U. S., at 686-687.

       Title 28 U. S. C. § 2254 provides in pertinent part:
      “The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”

       Hankerson was convicted of second-degree murder. North Carolina law at the time of Hankerson’s trial had provided that unlawfulness was an element of the crime of second-degree murder and that self-defense negated unlawfulness. See Hankerson v. North Carolina, 432 U. S., at 238. The jury had been instructed as follows:
      “ ‘If the State proves beyond a reasonable doubt or it is admitted that the defendant intentionally killed [the victim] with a deadly weapon, that proximately caused his death, the law raises two presumptions; first, that the killing was unlawful, and second, that it was done with malice. . . .
      “ ‘[I]n order to excuse his act altogether on the grounds of self-defense, the defendant must prove not beyond a reasonable doubt but simply to your satisfaction that he acted in self-defense.’” Id., at 236-237.

       In addition, Ross did not contemporaneously object to the jury instructions. But under North Carolina law at the time, a contemporaneous objection at trial was not necessary to preserve for review a question involving jury instructions. State v. Gause, 227 N. C. 26, 40 S. E. 2d 463 (1946).

       Under North Carolina law, exceptions to jury instructions must be made after trial if they are to be preserved for appellate review, and errors that could have been raised on appeal may not be raised for the first time in postconviction proceedings. State v. Abernathy, 36 N. C. App. 527, 244 S. E. 2d 696 (1978); State v. White, 274 N. C. 220, 162 S. E. 2d 473 (1968). See 704 F. 2d 705 (CA4 1983); Cole v. Stevenson, 620 F. 2d 1055, 1057-1059 (CA4 1980).
      Respondent argues that the North Carolina procedural bar is inapplicable in this case because the North Carolina Supreme Court considered the merits of his Mullaney claim both on appeal and on postconviction review, despite his procedural default. Engle v. Isaac, 456 U. S. 107, 135, n. 44 (1982). See Brief for Respondent 2-5. With respect to the former, respondent bases his argument on the fact that the North Carolina Supreme Court stated generally that it had “examined the [jury] charge and eon-clude[d that] it is in accordance with legal requirements and is unobjectionable.” State v. Ross, 275 N. C. 550, 554, 169 S. E. 2d 875, 878 (1969). With respect to postconviction review, respondent argues that the failure of the North Carolina courts to rely explicitly on procedural grounds in summarily dismissing his petition indicates that they considered the merits of his constitutional claim. See App. to Brief for Petitioners A5, A8. Although the Court of Appeals stated that “[t]he claim of waiver is not without some support,” 704 F. 2d, at 707, it did not reach the question. Similarly, in light of our disposition of this case on the basis of respondent’s primary argument, we need not address the question.
      In addition, respondent argues that the District Court erred in imposing a forfeiture, both because the North Carolina courts have been inconsistent in imposing the State’s procedural bar for the failure to raise the burden-of-proof issue before Mullaney and because North Carolina law does not require a forfeiture for every procedural default. Brief for Respondent 5-10, 41. We also need not address this issue.

       The State complied with the decision of the Court of Appeals by releasing Ross, who, at that time, was on work-release in a custody status that allowed weekend home leaves.

       See, e. g., Crick v. Smith, 650 F. 2d 860, 867-868 (CA6 1981); Graham v. Mabry, 645 F. 2d 603, 606-607 (CA8 1981); Boyer v. Patton, 579 F. 2d 284, 286 (CA3 1978). See also Comment, Federal Habeas Corpus Review of Unintentionally Defaulted Constitutional Claims, 130 U. Pa. L. Rev. 981, 988-989 (1982).
      The situation of a defendant representing himself, see Faretta v. California, 422 U. S. 806 (1975), is not presented in this case and we express no view on the applicability of the cause-and-prejudice requirement in that context.

       The term “cause” was first employed in this context in Davis v. United States, 411 U. S. 233 (1973). The petitioner in that case had been convicted in federal court. It was not until he filed a petition for postconviction relief under 28 U. S. C. § 2255 that he challenged the racial composition of the grand jury that had indicted him. Thus he had failed to comply with Rule 12(b)(2) of the Federal Rules of Criminal Procedure, which required that “[djefenses and objections based on defects in the institution of the prosecution or in the indictment. . . may be raised only by motion before trial,” and that the failure to present such defenses or objections “constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver” (emphasis added). See 411 U. S., at 236. In Davis, the Court held that the “cause shown” requirement of Rule 12(b)(2) applies to claims brought under §2255 where the petitioner has failed to raise the claim in accordance with the Rule. In Francis v. Henderson, 425 U. S. 536 (1976), the same question arose in the context of ari action brought by a state prisoner under § 2254. The Court held that, although the State in which the petitioner had been convicted had no “cause shown” provision in its rule requiring timely challenges to indictments, the rule of Davis v. United States should apply nonetheless.

       Other Courts of Appeals have held that novelty can constitute cause. See, e. g., Norris v. United States, 687 F. 2d 899, 903 (CA7 1982); Dietz v. Solem, 677 F. 2d 672, 675 (CA8 1982); Collins v. Auger, 577 F. 2d 1107, 1110, and n. 2 (CA8 1978); Myers v. Washington, 702 F. 2d 766, 768 (CA9 1983); Gibson v. Spalding, 665 F. 2d 863, 866 (CA9 1981); Ford v. Strickland, 696 F. 2d 804, 817 (CA11 1983); Sullivan v. Wainwright, 695 F. 2d 1306, 1311 (CA11 1983). See generally Comment, Habeas Corpus— The Supreme Court Defines The Wainwright v. Sykes “Cause” and “Prejudice” Standard, 19 Wake Forest L. Rev. 441, 454-456 (1983).

       Several commentators have urged this and related positions. See, e. g., Goodman & Sallet, Wainwright v. Sykes: The Lower Federal Courts Respond, 30 Hastings L. Rev. 1683, 1712 (1979); Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 153-154 (1970); Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 460 (1963); Comment, supra n. 7, at 1012-1013.

       For instance, in Hurtado v. California, 110 U. S. 516 (1884), this Court held that indictment by a grand jury is not essential to due process under the Fourteenth Amendment. Surely, we should not encourage criminal counsel in state court to argue the contrary in every possible case, even if there were a possibility that some day Hurtado may be overruled.

       Petitioners have not challenged the Court of Appeals’ conclusion that the jury instructions were unconstitutional under Mullaney. We therefore do not reach the question.

       Part of the Court’s opinion suggests that it might be of two minds on this matter. It states that “the cause requirement may be satisfied under certain circumstances when a procedural failure is not attributable to an intentional decision by counsel made in pursuit of his client’s interests.” Ante, at 14. As the Court’s opinion makes clear, however, this formulation does not presage a return to the “knowing waiver” or “deliberate by-pass” rule of Fay v. Noia, 372 U. S. 391 (1963), which was squarely rejected by a majority of this Court in Wainwright v. Sykes, 433 U. S., at 87-88.

       For instance, the Court’s treatment of the decision in Stump v. Bennett wholly ignores the following language:
      “Whether or not one interprets the treatment of Davis in Leland as denying a constitutional status to the ‘presumption of innocence,’ this much is clear: when the burden of persuasion is shifted to the defendant to disprove essential elements of a crime, as it was in the instant case, then it is certain that the due process clause of the Fourteenth Amendment has been violated.” 398 F. 2d, at 118.
      I cannot imagine a clearer basis than Stump for asserting the claim upon which respondent ultimately prevailed in the Fourth Circuit.

        Stump was decided on June 27, 1968; by November 13, 1968, the Connecticut court in State v. Nales relied upon Stump to strike down the conviction in that case. 28 Conn. Supp., at 31, 248 A. 2d, at 244. Respondent’s conviction came in March of the following year, which certainly is enough time to find that the legal basis for making his claim was reasonably available to him.

       The Court justifies its decision in part on the ground that federal courts, sitting on habeas review, stand as the last guardians of individual rights against state oppression. Ante, at 10. As protectors of individual liberties, however, the federal judiciary must take into consideration the systemic effects of its habeas review powers. The orderly administration of justice and concerns of finality not only have significance for the allocation of social resources in the area of criminal justice, but also affect the distribution of those resources so allocated, and ultimately, what justice remains to be dispensed by courts. The time and energy spent relitigating trials long final and completely fair when first conducted takes resources away from others demanding attention from the criminal justice system. The Court’s treatment of novelty as cause suggests that whenever the Court announces a new principle of constitutional law to be applied retroactively, a State’s procedural default rule will have no effect. Far preferable, it seems to me, would be the adoption of the position of Justice Harlan, that new constitutional principles should, with rare exception, not be given retroactive application on habeas review. See Mackey v. United States, 401 U. S. 667, 688-689 (1971).


source: Caselaw Access Project

author:
Justice White Justice Rehnquist,
      Justice O’Connor,

license: Public Domain

text:
    THIGPEN, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS, et al. v. ROBERTS
    No. 82-1330.
    Argued April 23, 1984
    Decided June 27, 1984

      White, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Marshall, Blackmun, and Stevens, JJ., joined. Rehnquist, J., filed a dissenting opinion, -post, p. 33. O’Connor, J., filed a dissenting opinion, in which Powell, J., joined, post, p. 40.

      William S. Boyd III, Special Assistant Attorney General of Mississippi, argued the cause for petitioners. With him on the briefs were Edwin Lloyd Pittman, Attorney General, and Bill Attain, former Attorney General.

      Rhesa H. Barksdale, by invitation of the Court, 464 U. S. 1006, argued the cause as amicus curiae in support of the judgment below. With him on the brief was Luther T. Munford. A brief for respondent was also filed.

        Edwin L. Miller, Jr., Jack E. Yelverton, James P. Manak, Newman A. Flanagan, and Michael C. Moore filed a brief for the National District Attorneys Association, Inc., et al. as amici curiae urging reversal.

   Justice White

delivered the opinion of the Court.

On August 6, 1977, respondent Barry Joe Roberts lost control of his car and collided with a pickup truck, killing a passenger in the truck. Shortly after the accident, Roberts received citations for reckless driving, driving while his license was revoked, driving on the wrong side of the road, and driving while intoxicated. He was convicted of these four misdemeanors in a Justice of the Peace Court in Talla-hatchie County, Miss. Roberts gave notice of appeal and the case was transferred to the Circuit Court for trial de novo.

While the appeal was pending, in December 1977, a grand jury indicted Roberts for manslaughter based on the August 6 accident. App. 90-91. Roberts was arraigned on the appeal and the felony indictment simultaneously, and the five charges were set for trial together. Id., at 92-93. During the trial, the State elected not to press the misdemeanor charges and remanded them to the file. The jury convicted Roberts of manslaughter, and the judge sentenced him to 20 years in prison. The Mississippi Supreme Court affirmed. Roberts v. State, 379 So. 2d 514 (1979). It also refused Roberts leave to pursue state postconviction remedies.

Roberts then brought the present habeas corpus action in the United States District Court for the Northern District of Mississippi. The petition was referred to a Magistrate, who recommended that the writ issue for two reasons. First, the manslaughter prosecution violated the Double Jeopardy Clause because proof of manslaughter required proof of all the elements of reckless driving, of which Roberts had already been convicted. See Illinois v. Vitale, 447 U. S. 410 (1980). Second, substitution of a felony charge covering the conduct for which Roberts had already been convicted of four misdemeanors violated the Due Process Clause. See Blackledge v. Perry, 417 U. S. 21 (1974). The District Court adopted the Magistrate’s report. The Court of Appeals for the Fifth Circuit affirmed, relying solely on the double jeopardy argument, judgment order reported at 693 F. 2d 132 (1982).

We granted certiorari, 461 U. S. 956 (1983), and we now affirm. Although the court below and the petition for certio-rari addressed only the double jeopardy issue, we may affirm on any ground that the law and the record permit and that will not expand the relief granted below. United States v. New York Telephone Co., 434 U. S. 159, 166, n. 8 (1977). Because this case is plainly controlled by Blackledge v. Perry, supra, we affirm on the basis of that decision without reaching the double jeopardy issue.

Perry was convicted of assault in a court of limited jurisdiction under a scheme essentially identical to Mississippi’s. He exercised his statutory right to a trial de novo, and the prosecutor then obtained a felony indictment charging him with assault with a deadly weapon. We concluded that this sequence of events suggested “a realistic likelihood of ‘vindictiveness.’” 417 U. S., at 27. Fearing that the prosecutor, who “has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a trial de novo,” would make retaliatory use of his power to “up the ante,” we considered the situation analogous to the imposition of a stiffer sentence after reversal and reconvietion. See North Carolina v. Pearce, 395 U. S. 711 (1969). We therefore established a presumption of unconstitutional vindictiveness in these circumstances. Blackledge, supra, at 27-28.

Blackledge clearly controls this case. The relevant facts are identical. Like Perry, Roberts was convicted of a misdemeanor and exercised his right to a trial de novo, only to be confronted with a felony charge. That charge covered the same conduct as the misdemeanors he sought to appeal. As the Magistrate concluded, “[t]he facts of this case fall squarely within Blackledge.” App. to Pet. for Cert. A4.

The only possible distinction between the two cases is that in Blackledge the same attorney was apparently responsible for the entire prosecution. Here the proceedings before the Justice of the Peace were the responsibility of the county prosecutor, whereas the felony indictment was obtained by the District Attorney, who was then involved in the manslaughter trial. It might be argued that if two different prosecutors are involved, a presumption of vindictiveness, which arises in part from assumptions about the individual’s personal stake in the proceedings, is inappropriate. Cf. Colten v. Kentucky, 407 U. S. 104 (1972) (refusing to apply prophylactic rule of Pearce where enhanced sentence is imposed by a different court after trial de novo). On the other hand, to the extent the presumption reflects “institutional pressure that . . . might . . . subconsciously motivate a vindictive prosecutorial. . . response to a defendant’s exercise of his right to obtain a retrial of a decided question,” United States v. Goodwin, 457 U. S. 368, 377 (1982), it does not hinge on the continued involvement of a particular individual. A district attorney burdened with the retrial of an already-convicted defendant might be no less vindictive because he did not bring the initial prosecution. Indeed, Blackledge referred frequently to actions by “the State,” rather than “the prosecutor.” E. g., 417 U. S., at 28-29.

We need not determine the correct rule when two independent prosecutors are involved, however. Here the county prosecutor participated fully after the conclusion of proceedings in the Justice of the Peace Court. He was the State’s sole representative at the arraignment in Circuit Court, App. 92, assisted at the trial, id., at 94; Tr. of Oral Arg. 9, and presented the initial closing argument to the jury, App. 96. In fact, such participation was a statutory duty. Under the state law then in effect, the county prosecutor was to “assist the district attorney in all criminal cases in the circuit court” in which his county had an interest and “to represent the state in all matters coming before the grand jury of his county.” Miss. Code Ann. § 19-23-11 (1972). In these circumstances, the addition of the District Attorney to the prosecutorial team changes little.

Petitioners suggest that we should remand the Blackledge issue to the Court of Appeals rather than reach it ourselves. Tr. of Oral Arg. 24. It is true that “[w]hen attention has been focused on other issues, or when the court from which a case comes has expressed no views on a controlling question, it may be appropriate to remand the case rather than deal with the merits of that question in this Court.” Dandridge v. Williams, 397 U. S. 471, 476, n. 6 (1970). Nonetheless, we have little hesitation in deciding the case in its current posture. The due process issue was argued before both the District Court and the Court of Appeals. The State’s opposition to the Magistrate’s report and its brief to the Court of Appeals are before us. The factual record is adequate, and would not be improved by a remand to the Court of Appeals. And the case is decided by a straightforward application of controlling precedent.

The prosecution of Roberts for manslaughter, following his invocation of his statutory right to appeal his misdemeanor convictions, was unconstitutional. The resulting conviction cannot stand. The judgment of the Court of Appeals is therefore

Affirmed.

Justice Rehnquist,

dissenting.

The Court granted certiorari in this case to review a single question presented by the petition for certiorari: whether the Court of Appeals properly applied our decision in Illinois v. Vitale, 447 U. S. 410 (1980), in sustaining respondent’s claim of double jeopardy under the Fifth and Fourteenth Amendments to the United States Constitution. The Court of Appeals held that the Clause was a bar to further prosecution on a charge of manslaughter stemming from the death of a 10-year-old child who had been a passenger in the truck involved in a collision with respondent’s car. This Court, however, in an unexampled bit of procedural footwork which surely has adverse implications for the “rule of four” principle governing our grants of certiorari, simply refuses to even consider the double jeopardy issue raised by the State in its petition for certiorari. Without any explanation whatever, the Court affirms the judgment of the Court of Appeals on an alternative ground.

The only precedent cited for this unexplained — and I dare say unexplainable — decision is United States v. New York Telephone Co., 434 U. S. 159 (1977). But that case stands only for the unexceptionable proposition that a respondent may argue to this Court any basis supported by the record for affirming the judgment of the lower court, even though respondent did not cross-petition for certiorari. Nevertheless, in New York Telephone Co. the Court decided the issue presented in the petition for certiorari in addition to ruling on the alternative basis for affirmance urged by the respondent. See id., at 174-178. See also Dandridge v. Williams, 397 U. S. 471 (1970). I believe that the Court is obligated to confront the State’s contention that the Court of Appeals misapplied the Double Jeopardy Clause of the Fifth Amendment in this case. The Court being unwilling to undertake that obligation, I turn to it in dissent.

Respondent was tried and convicted of the misdemeanor offense of reckless driving in a Justice Court in Tallahatchie County, Miss., a county in northwestern Mississippi with a population of approximately 17,000 people. He was sentenced to pay a fine of $100 for this offense. As permitted by the Mississippi “two-tier” system, he appealed his conviction to the State Circuit Court where he was entitled to a trial de novo. But before he was retried on the misdemeanor charge in the Circuit Court, he was indicted for the felony offense of manslaughter for causing the death of the 10-year-old child who was riding in the truck that respondent struck with his car. The misdemeanor offense was “nolle prossed” before trial, but respondent was convicted by a jury of manslaughter and sentenced to 20 years in the custody of the Mississippi Department of Corrections.

Respondent’s conviction was affirmed by the Mississippi Supreme Court. Roberts v. State, 379 So. 2d 514 (1979). After exhausting his state postconviction remedies, respondent filed a petition for federal habeas corpus relief. This writ was granted by the District Court, and the Court of Appeals for the Fifth Circuit affirmed that determination. The Court of Appeals held that “because Roberts has a substantial double jeopardy claim under the Supreme Court’s holding in Illinois v. Vitale, the district court’s granting of habeas corpus relief must be affirmed.” App. to Pet. for Cert. A13.

In reaching this conclusion, I believe that the Court of Appeals mistakenly relied upon a mere form of expression in the Court’s opinion in Illinois v. Vitale to depart from all of our previous double jeopardy holdings in this area. The Court of Appeals apparently felt that the Vitale opinion changed governing double jeopardy law to permit a defendant to establish a substantial, and apparently dispositive, claim of double jeopardy merely by showing that the State actually relied upon the same evidence to prove both crimes. While there is one sentence in the Court’s opinion in Vitale that supports this construction, I do not believe that construction is consistent with the opinion as a whole. Until the present case, the relevant question to be answered by any court is whether the evidence required to prove the statutory elements of crime is the same, not whether the evidence actually used at trial is the same.

In Vitale the Supreme Court of Illinois had held that the Double Jeopardy Clause of the Fifth Amendment barred the prosecution of a defendant for manslaughter because the defendant had previously pleaded guilty to a charge of failing to reduce speed arising out of the same incident. This Court vacated the judgment of the Supreme Court of Illinois, saying:

“The point is that if manslaughter by automobile does not always entail proof of a failure to slow, then the two offenses are not the ‘same’ under the Blockburger test. The mere possibility that the State will seek to rely on all of the ingredients necessarily included in the traffic offense to establish an element of its manslaughter case would not be sufficient to bar the latter prosecution.” 447 U. S., at 419.

It seems to me that this is about as clear a statement as there can be of the principle that the double jeopardy inquiry turns on the statutory elements of the two offenses in question, and not on the actual evidence that may be used by the State to convict in a particular case. Nonetheless, the Court went on in Vitale to distinguish Harris v. Oklahoma, 433 U. S. 682 (1977), and in so doing stated:

“By analogy, if in the pending manslaughter prosecution Illinois relies on and proves a failure to slow to avoid an accident as the reckless act necessary to prove manslaughter, Vitale would have a substantial claim of double jeopardy under the Fifth and Fourteenth Amendments of the United States Constitution.” 447 U. S., at 421.

I cannot say that this last expression did not afford the Court of Appeals some ground for the views which it expressed, nor can I say that I think it is entirely consistent with the first quotation from the Vitale opinion. But I am reasonably sure that the Court did not intend to transmute the traditional double jeopardy analysis from an either “up or down” inquiry based on the evidence required to prove the statutory elements of a crime into a “substantial claim” inquiry based on the evidence the State introduced at trial. I think that there are ambiguities in Illinois v. Vitale which urgently need resolution by this Court, that the present case affords an ample opportunity to do this, and that the Court’s failure to do it is an unexampled abdication of its responsibility.

I would unambiguously reaffirm the statement in Brown v. Ohio, 432 U. S. 161 (1977), relied upon in Illinois v. Vitale, supra, that

“‘[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’” 432 U. S., at 166, quoting Blockburger v. United States, 284 U. S. 299, 304 (1932).

Applying that principle to this case, it seems to me that the Court of Appeals was demonstrably wrong in its treatment of the double jeopardy issue. Comparing the elements of the Mississippi reckless driving statute with the Mississippi manslaughter statute, that court said:

“A narrow focus on the two statutes provides one answer. Proof of manslaughter does not necessarily entail proof of reckless driving, for manslaughter could be proved in a situation completely foreign to a vehicular collision.” App. to Pet. for Cert. A10-A11

But the court went on to say that taking into account a “judicial veneer” which had been placed on the statute by the Supreme Court of Mississippi, “it is apparent that manslaughter by automobile cannot be proven without at the same time proving reckless driving. Because the specific felony offense, manslaughter by automobile, is not statutorily defined, this Court is confronted with a novel situation. Depending on whether the focus is on the manslaughter statute alone or on its case law veneer as well, application of the first prong of the Vitale analysis gives different results.” Id., at A11.

But the Court of Appeals declined to resolve the inquiry based on the elements of the two statutes, as mandated by Brown, supra, and went on to say that there was a “second prong” of the inquiry based upon the evidence actually presented at trial. Because the same evidence that led to respondent’s conviction on the misdemeanor charge was also introduced in the manslaughter trial, respondent was said to have a “substantial claim” of double jeopardy, whatever that phrase may mean. Because respondent had such a “substantial claim,” the Court of Appeals set aside a state-court conviction.

I believe that a straightforward analysis of the holding in Brown v. Ohio requires the conclusion that there was a different element in each of the offenses involved which need not be proved with respect to the other offense. The offense of reckless driving is based on the manner of operation of a motor vehicle upon the public roads, and in no wise requires any result ,in injury to persons or property. The crime of manslaughter by culpable negligence simply requires the causing of a death with a particular state of mind, and need not in any way involve an automobile.

The fact that in this particular case the “same evidence” might be used to prove the “reckless” element in the automotive offense and the “culpable negligence” in the manslaughter offense is also not dispositive. For reckless driving a defendant must have driven an automobile, which he need not do to be found guilty of manslaughter; for manslaughter a defendant’s act must have caused a death, which is not required for the offense of reckless driving. Applying the “Blockburger” test to a question of statutory construction, the Court in Iannelli v. United States, 420 U. S. 770, 785, n. 17 (1975), said:

“[T]he Court’s application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.”

Since Vitale we have reaffirmed the Blockburger test that the evidence required to prove the statutory elements of a crime determines whether particular crimes are the same offense for double jeopardy purposes. See Missouri v. Hunter, 459 U. S. 359, 367-368 (1983). The actual evidence test which the Court of Appeals inferred from the single sentence in Vitale has never been applied to bar a second trial on grounds of double jeopardy.

I would therefore reverse the judgment of the Court of Appeals insofar as it upheld respondent’s double jeopardy claim. Because the Court of Appeals did not pass upon respondent’s due process claim based upon our decision in Blackledge v. Perry, 417 U. S. 21 (1974), I would remand the case to that court so it may consider the question in the first instance.

Justice O’Connor,

with whom Justice Powell joins, dissenting.

For the reasons stated in Justice Rehnquist’s dissent, I believe the Court should address the double jeopardy question decided by the Court of Appeals. I also agree with Justice Rehnquist that the Court of Appeals’ ruling should be vacated and the case remanded for further consideration in light of Blackledge v. Perry, 417 U. S. 21 (1974). In my view, however, the Court of Appeals’ double jeopardy holding should be vacated simply on the ground that jeopardy does not attach in the first tier of a “two-tier” criminal trial.

Two-tier systems for adjudicating less serious criminal cases such as traffic offenses are extremely common. Colten v. Kentucky, 407 U. S. 104, 112, n. 4 (1972). Indeed, this is our second occasion this Term to review double jeopardy problems arising out of a two-tier trial. See Justices of Boston Municipal Court v. Lydon, 466 U. S. 294 (1984). Mississippi’s two-tier system is fairly typical. A defendant convicted in a Mississippi justice of the peace court has an absolute right to a trial de novo if he chooses to appeal his conviction. See Calhoun v. City of Meridian, 355 F. 2d 209, 211 (CA5 1966); Miss. Code Ann. § 99-35-1 et seq. (1972). In Mississippi, as in Kentucky, “a defendant can bypass the inferior court simply by pleading guilty and erasing immediately thereafter any consequence that would otherwise follow from tendering the plea.” Colten v. Kentucky, supra, at 119-120.

In these circumstances a defendant is not in “jeopardy” of anything when he undergoes a first-tier trial. The first-tier proceedings

“offer a defendant the opportunity to learn about the prosecution’s case and, if he chooses, he need not reveal his own. ... In reality his choices are to accept the decision of the judge and the sentence imposed in the inferior court or to reject what in effect is no more than an offer in settlement of his case and seek the judgment of judge or jury in the [second-tier trial,] with sentence to be determined by the full record made in that court.” 407 U. S., at 118-119.

Respondent Roberts chose not to accept the “offer in settlement” made at his first-tier trial. On August 13, 1977, he was convicted in the first-tier trial and sentenced to pay a fine of $100 on the charge of reckless driving. He filed notice of and perfected an appeal on the same day. The reckless driving misdemeanor charge was eventually consolidated for trial with the manslaughter charge but was not prosecuted further. There is no indication that Roberts ever paid the $100 fine. At oral argument counsel conceded that he probably did not.

This is surely dispositive evidence that Roberts was never in “jeopardy” at his first-tier trial. Though he was tried, convicted, and sentenced at that trial, he effortlessly erased his conviction and suffered no punishment whatsoever for the offense of reckless driving. If Roberts was never in jeopardy at his first-tier trial, the second trial could in no circumstance violate Roberts’ constitutional right to avoid being placed twice in jeopardy for the same offense.

Accordingly, I would vacate the judgment below and remand for further consideration in light of Blackledge v. Perry, supra.

       Roberts was fined $100 for reckless driving, fined $100 and sentenced to 6 months in jail for driving while his license was revoked, fined $100 and sentenced to 10 days in jail for driving on the wrong side of the road, and fined $1,000 and sentenced to 11 months in jail for driving under the influence.

       Under the Mississippi scheme then in effect, Justice of the Peace Courts had concurrent jurisdiction with the County Courts over misdemeanors. Miss. Code Ann. §§9-9-21, 99-33-1 (1972). In practice, misdemeanors were always brought in one or the other of these courts by county prosecutors. Brief for Petitioners 5, n. 1; Tr. of Oral Arg. 7-10. Such proceedings were initiated by affidavit, the traffic citations serving that function in the present case. If convicted in the Justice of the Peace Court, the defendant had an absolute right to appeal to the Circuit Court for a trial de novo. § 99-35-1.

       Under Mississippi practice, a remand to the file “is the functional equivalent of a nolle pros.’’ Tr. of Oral Arg. 15.

       At oral argument, the State suggested that Blackledge had been overruled, or at least modified, by United States v. Goodwin, 457 U. S. 368 (1982). Tr. of Oral Arg. 24. Goodwin held that the Blackledge presumption does not apply when charges are enhanced following a pretrial demand for a jury trial. We distinguished Blackledge on the basis of the critical differences in the timing of the heightened charge and in the amount of extra effort to which the defendant has put the State. There is no hint in Goodwin that Blackledge does not apply with full force in the circumstances of that case, circumstances that are repeated here.

       In both courts below, the State attempted to distinguish Blackledge on the ground that the misdemeanor and felony at issue in that ease shared specific elements in a way that traffic violations and manslaughter do not. This argument closely resembled their double jeopardy argument, both focusing on the rule set out in Blockburger v. United States, 284 U. S. 299 (1932). Even if the State is correct that the offenses charged in Blackledge had more in common than those charged here, this parsing of the statutes misses the point. Blackledge engaged in no such analysis. It noted merely that the “indictment covered the same conduct for which Perry had been tried and convicted.” 417 U. S., at 23. That is equally true here. Whatever the congruence, or lack thereof, of the offenses charged, the postappeal felony indictment poses “the danger that the State might be retaliating against the accused for lawfully attacking his conviction.” Bordenkircher v. Hayes, 434 U. S. 357, 363 (1978).

       In this regard, we note that the Blackledge presumption is rebuttable. See United States v. Goodwin, supra, at 376, n. 8; Blackledge, 417 U. S., at 29, n. 7. The State had ample opportunity below to attempt to rebut it but did not do so. Its only argument has been that Blackledge should not apply.

       Our decision in Langnes v. Green, 282 U. S. 531 (1931), is not to the contrary. While in Langnes the Court never addressed the errors specified by the petitioner in that case, the Court decided in Langnes that the District Court should never have addressed the petitioner’s claims in the first instance. See id., at 540-542; cf. Schlesinger v. Councilman, 420 U. S. 738, 743-744 (1975). When a petitioner’s claims should never have been presented to or decided by a federal court in the first instance, a ruling by this Court on those claims would be wholly inappropriate. There being no similar grounds upon which to abstain from deciding any issue raised by this case, the Court should address the question raised by the petitioner.

       The case which the Court of Appeals suggested created a separate, nonstatutory crime of manslaughter by automobile, Smith v. State, 197 Miss. 802, 20 So. 2d 701 (1945), involved a charge of manslaughter under Miss. Code Ann. § 2232 (1942), which read:
      “Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without any authority of law, not provided for in this chapter, shall be manslaughter.”
      This provision has remained unchanged since the Smith decision. See Miss. Code Ann. § 97-3-47 (1972).
      That the Smith decision did not result in a new crime of manslaughter by automobile should be clear from the following analysis of Smith in Dickerson v. State, 441 So. 2d 536 (Miss.1983):
      “This statute [§ 97-3-47] has been authoritatively construed in Smith v. State, 197 Miss. 802, 20 So. 2d 701 (1945), a case involving alleged manslaughter with an automobile, to require that, before the defendant may be convicted, the state must prove that he ‘was guilty of such gross negligence on the occasion, complained of as evince [sic] on his part a wanton and reckless disregard for the safety of human life, or such an indifference to the consequences of his act under the surrounding circumstances as to render his conduct tantamount to willfulness.’” Id,., at 538 (citing to Smith v. State, supra, at 812, 20 So. 2d, at 703).
      At no point in Dickerson does the Mississippi Supreme Court suggest that the crime of manslaughter involving use of an automobile is a different crime than any other manslaughter charged under § 97-3-47. In other instances involving prosecutions under the manslaughter statute the State Supreme Court has employed similar language, indicating the juxtaposition of the words “manslaughter” and “motor vehicle” found in Smith was nothing more than an effort to illuminate what the court meant by culpable negligence in those circumstances. Cf. Latiker v. State, 278 So. 2d 398, 399 (1973); Gregory v. State, 152 Miss. 133, 141-142, 118 So. 906, 909 (1928).