henry mississippi argued october decided january mississippi reviewing petitioner appeal conviction disturbing peace first filed opinion reversed conviction remanded new trial held petitioner wife consent search automobile waive rights belief petitioner counsel unfamiliar local practice reversed spite petitioner failure comply state requirement contemporaneous objection introduction illegal evidence noted petitioner moved directed verdict close state case assigning one ground use illegal evidence state filed suggestion error pointing petitioner represented local well counsel substituted another opinion affirming conviction holding mistakes counsel even honest binding client held question whether nonfederal procedural ground requirement adequate bar review whether imposition case serves legitimate state interest decided record indicates insufficient establish petitioner personally counsel may knowingly forgone opportunity raise federal claims fay noia interests sound judicial administration call remand permit state establish whether waiver may avoid necessity decision adequacy state procedural ground permits state determine waiver question otherwise open federal habeas corpus even state ground adequate pp reversed remanded barbara morris argued cause petitioner brief robert carter jack young jess brown alvin hellerstein garland lyell assistant attorney general mississippi argued cause respondent brief joe patterson attorney general mississippi justice brennan delivered opinion petitioner convicted disturbing peace indecent proposals offensive contact hitchhiker said given ride car trial judge charged jury find defendant guilty unsupported uncorroborated testimony complainant alone petitioner federal claim derives admission police officer testimony introduced corroborate hitchhiker testimony mississippi held officer testimony improperly admitted fruit unlawful search violation miss constitution tainted evidence tended substantiate hitchhiker testimony showing accuracy detail seen one inside car particular showed ashtray car incident took place full dentyne chewing gum wrappers cigarette lighter function police officer testified petitioner arrest returned petitioner home obtained permission petitioner wife look petitioner car wife provided officer keys officer opened car testified tried lighter work also ashtray filled red dentyne chewing gum wrappers mississippi first filed opinion reversed petitioner conviction remanded new trial held wife consent search car waive petitioner constitutional rights noted estimony state witness effect uncorroborated without evidence disclosed inspection defendant automobile advance sheet acting belief petitioner represented nonresident counsel unfamiliar local procedure reversed despite petitioner failure comply mississippi requirement objection illegal evidence made time introduced noted petitioner moved directed verdict close state case assigning one ground use illegally obtained evidence mention petitioner renewal motion close evidence first opinion handed state filed suggestion error pointing petitioner fact represented trial competent local counsel well lawyers thereupon mississippi withdrew first opinion filed new opinion support judgment affirming petitioner conviction new opinion identical first save result statement petitioner local counsel discussion effect failure whatever reason make timely objection evidence circumstances even honest mistakes counsel respect policy strategy otherwise occur binding upon client part hazards courtroom battle bound volume moreover reasoned petitioner state witness initial motion directed verdict introduction evidence car interior appearance afterward cured original error estopped petitioner complaining tainted evidence granted certiorari vacate judgment conviction remand hearing question whether petitioner deemed knowingly waived decision federal claim timely objection made admission illegally seized evidence course familiar principle decline review state judgments rest independent adequate state grounds even judgments also decide federal questions principle applies cases involving state substantive grounds murdock city memphis wall also cases involving state procedural grounds compare herb pitcairn davis wechsler important distinguish state substantive grounds state procedural grounds ground involved substantive determination federal question affect disposition state decision state law question allowed stand view taken murdock statutes conferring appellate jurisdiction power revise judgments questions state law thus adequate nonfederal ground doctrine necessary avoid advisory opinions justifications application state ground purely procedural procedural default held bar challenge conviction state courts even federal constitutional grounds prevents implementation federal right accordingly consistently held question defaults compliance state procedural rules preclude consideration federal question federal question cf lovell city griffin justice holmes said plain assertion federal rights lower local rules far shall reviewed appeal necessarily prevail whether right denied given due recognition state question plaintiffs entitled invoke judgment love griffith mississippi rule requiring contemporaneous objection introduction illegal evidence clearly serve legitimate state interest immediately apprising trial judge objection counsel gives opportunity conduct trial without using tainted evidence objection well taken fruits illegal search may excluded jury consideration reversal new trial avoided record us appears purpose rule may substantially served petitioner motion close state evidence asking directed verdict erroneous admission officer testimony stage trial judge called elaboration search seizure argument persuaded stricken tainted testimony taken appropriate corrective action example sufficient competent evidence without testimony go jury motion directed verdict might denied case submitted jury properly worded appropriate cautionary instruction circumstances delay close state case presenting objection said frustrated state interest avoiding delay waste time disposition case enforcement rule serve substantial state interest settled principles preclude treating state ground adequate giving effect rule sake force resort arid ritual meaningless form staub city baxley see also wright georgia reason however decide question express view merits petitioner substantial constitutional claim even assuming making objection motion directed verdict satisfied state interest served rule record suggests possibility petitioner counsel deliberately bypassed opportunity make timely objection state thus petitioner deemed forfeited state remedies although mississippi characterized failure object honest mistake bound volume state brief support suggestion error mississippi asserted willingness agree suggestion error sustained either three counsel petitioner participating trial respond hereto affidavit know point trial criminal mississippi objection testimony must made second opinion mississippi refer state proposal thus appears believe issue properly presented decision another indication possible waiver appears affidavit attached state brief respondent asserted one petitioner lawyers stood object officer tainted testimony pulled furnishes insufficient basis decision waiver questions time together proposal suggestion error enough justify evidentiary hearing determine whether petitioner consultation competent counsel otherwise understandingly knowingly forewent privilege seeking vindicate federal claims state courts whether strategic tactical reasons fairly described deliberate state procedures fay noia evidence suggests reasons strategic move complaining witness police officer testified cigarette lighter car work denial motion directed verdict defense called mechanic repaired cigarette lighter defense might planned allow complaining witness officer testify cigarette lighter work motion directed verdict granted discredit witnesses showing work thereby persuading jury acquit delaying objection evidence defense might hoped invite error lay foundation subsequent reversal either reason motivated action petitioner counsel plans backfired counsel deliberate choice strategy amount waiver binding petitioner preclude decision merits federal claim either state courts although trial strategy adopted counsel without prior consultation accused circumstances exceptional preclude accused asserting constitutional claims see whitus balkcom cir think deliberate bypassing counsel rule part trial strategy effect case evidence extrinsic record us establish fact waiver state opportunity establish fact comparable cases arising federal courts vacated judgments conviction remanded hearing suspending determination validity conviction pending outcome hearing see shotwell mfg campbell recently adopted similar procedure determine issue essential fairness state conviction see jackson denno boles stevenson think similar course particularly desirable since dismissal basis adequate state ground end case petitioner might still pursue vindication federal claim federal habeas corpus proceeding procedural default alone preclude consideration claim least unless shown petitioner deliberately bypassed orderly procedure state courts fay noia supra course remanding neither hold even remotely imply state must forgo insistence procedural requirements finds waiver finding mean petitioner federal apply settled principles test effectiveness procedural default foreclose consideration constitutional claim finds procedural default ineffective federal decide merits federal claim least long state wish permitting mississippi courts make initial determination waiver serve causes efficient administration criminal justice harmonious judicial relations disposition may make unnecessary processing case federal courts already laboring congested dockets may make unnecessary relitigation federal forum certain issues see townsend sain blind fact federal habeas corpus jurisdiction source irritation federal state judiciaries suggested friction might ameliorated look upon decisions fay noia supra townsend sain supra affording opportunity provide state procedures direct collateral full airing federal claims prospect better served remand relegating petitioner federal habeas remedy therefore judgment vacated case remanded mississippi proceedings inconsistent opinion ordered footnotes complaining witness also testified last four digits petitioner license plate fact first three digits obscured facts independently substantiated since license plate seen outside car petitioner denied complaining witness ever car mississippi apparently accepted officer testimony concerning dentyne wrappers cigarette lighter cogent corroborative evidence lead inevitably plethora attacks application state procedural rules state rule reasonable one clearly announced defendant counsel application waiver doctrine yield result adequate nonfederal ground doctrine vast majority cases view mississippi first opinion seems insufficient evidence apart tainted testimony support conviction hence appropriate corrective action matter state law might included granting petitioner motion overlooked fact first opinion remanded new trial although usual practice mississippi motion directed verdict renewed close evidence improperly denied dismiss prosecution see lewis state miss adams state miss smith state miss opinion offers explanation mandate answer probably refers motion end state case overlooks fact renewed close evidence overlooks presence local counsel motion renewed appellate dismiss prosecution see smith state supra rely principle review precluded state failed exercise discretion disregard procedural default see williams georgia read second mississippi opinion holding discretion appears petitioner represented competent local counsel familiar local procedure thus consistently policy avoiding premature decision merits constitutional questions intimate view whether pertinent controlling federal standard governing legality search seizure see ker california mississippi standard applied holds wife consent validate search husband rule time question whether petitioner officer raising objection cured effect inadmissible testimony yet ruled role harmless error search seizure cases cf jackson denno course nothing occurring judge refusal honor petitioner objection curative effect state holding petitioner estopped counsel brought question car interior appearance direct examination see supra amounts holding petitioner waived federal right absence showing prompted litigation strategy present record insufficient support holding state case amounting little printed record adds little petitioner failure make contemporaneous objection evidence brought direct examination petitioner moved directed verdict pointing illegal evidence scarcely support finding waiver habeas corpus petitions filed state prisoners federal district courts increased fiscal year annual report director administrative office courts miscellaneous docket cases state prisoners primarily listed continues show substantial increases number increased term term see meador accommodating state criminal procedure federal postconviction review october see brennan aspects federalism rev justice black dissenting petitioner contends conviction based part evidence obtained allegedly unlawful search violation constitution decide federal question believe mississippi procedural trial rule relied state shut review find particle support suggestion petitioner knowingly waived right constitutional question decided state trial far issue waiver concerned agree mississippi considered failure object one honest mistakes lawyer might make since believe record completely barren evidence support finding conscious intentional waiver petitioner due process right trial decide whether evidence used unconstitutionally seized therefore remand hearing state trial issue waiver even considered real issue waiver shown properly us decide agree judgment remanding case state courts hearing issue alone thereby giving state chance supplement trial record save conviction constitutional challenge summary hearing without jury kind piecemeal prosecution invented used several years ago shotwell mfg expressed dissent unjust unconstitutional fragmentizing technique shotwell last year applied jackson denno dissenting opinion see also boles stevenson dissent noted objections shotwelling present case think dangerous shotwelling device expanded state may invoke merely challenging petitioner counsel deny knowledge mississippi procedural rule believe mississippi procedural rule concerning stage trial constitutional objections made kind rule accept independent adequate ground state refusal decide constitutional question raised petitioner williams georgia held state allows constitutional questions raised late stage determined courts matter discretion concluded assuming jurisdiction deciding whether state action particular circumstances effect avoidance federal right mississippi opinions state statutes called attention read denying power state wish consider determine constitutional questions presented time one fact understand counsel state mississippi power discretion consider questions regardless presented said persuasively constitutional rights serious criminal cases rise mere rules procedure errors affecting fundamental rights exceptions rule questions raised trial raised first time appeal brooks state miss reasons dissent disposition case bound volume think evidence cited opinion points fact evidence inferred conscious waiver made find support affidavit filed first time appendix state brief stating district attorney tried case seen one petitioner counsel start rise chair evidence search introduced another petitioner counsel gave jerk coat tail lawyer returning seat hard see one infer jerk coat tail even suspicion petitioner consciously knowingly waived right object evidence offered omitted attorneys state mississippi doubt state power case argued following exchange took place justice counsel state mean discretion state waive failure object sees fit circumstances case talking brooks state infra text several respects defendant rights completely trampled means absolutely rigid unbreakable irrevocable rule right right honor waive circumstances judgment justify correct mr flying banners federalism opinion actually raises storm signals disquieting nature purporting recognize traditional principle adequate procedural well substantive state ground decision bars direct review federal claim asserted state litigation unless wholly misconceive lurking today opinion portends severe dilution complete abolition concept adequacy pertaining state procedural grounds making preliminary observations believe seeing ghosts account remand case face demonstrably adequate state procedural ground decision mississippi except early step toward extending one way another doctrine fay noia direct review case decided two terms ago turned back history see dissenting opinion writer et seq away adequate state ground doctrine federal habeas corpus proceedings believing step toward extending noia direct review flushed challenged earliest appearance opinion respectfully dissent mississippi base ultimate decision upon petitioner federal claim wife consent validate otherwise improper police search family car procedural ground petitioner represented three experienced lawyers objected time fruits search received evidence strongly implies decide view remand waiver issue enforcement state rule inadequate state ground decision petitioner motion directed verdict acquittal afforded trial judge satisfactory opportunity take appropriate corrective action reference allegedly inadmissible evidence thus suggested may situation giving effect rule sake force resort arid ritual meaningless form ante standpoint realities courtroom regard analysis little short fanciful petitioner motion verdict provoked one three courses action trial judge none reasonably considered depriving state rule capacity serve adequate state ground trial judge might granted directed verdict action appropriate mississippi first opinion ordered prosecution dismissed since matter entirely one state law speculation foreclosed trial judge might directed mistrial state interest preventing mistrials requirement obvious remaining course action example given trial judge denied motion directed verdict sua sponte called elaboration argument determined search automobile unconstitutional given cautionary instructions jury disregard inadmissible evidence case submitted practical difficulties approach manifestly sufficient show substantial state interest avoidance thus show adequate basis state adherence rule make point must quote motion directed verdict full atty carter going make motion honor directed verdict case going base motion several grounds first think whole process defendant brought attempted brought jurisdiction illegal void nothing record case show warrant issued defendant based upon must based state state affidavit proper affidavit proper complaint party true testimony affidavit made complaining witness said record case affidavit present verification justice peace affidavit present case therefore contend warrant defendant subjected arrest illegal without force effect secondly contend warrant issued testimony collins stand effect placed man arrest proceeded go search car clearly violation rights fourth amendment unlawful search seizure evidence secured defendant illegal unlawful finally contend basis facts affidavit defendant tried justice peace contended yesterday based upon statement sworn county attorney information belief directly void defective give justice peace jurisdiction case contend circumstances state illegal process man rights violated fourteenth amendment finally contend state failed prove beyond reasonable doubt extent implicate man case basis sic contend whole process illegal void permeated contended sic whole process insofar jurisdiction concerned jurisdiction individual concerned therefore released move directed verdict motion overruled bring jury back atty carter honor time close case want make motion directed verdict base grounds reasons set forth motion directed verdict close state case make close entire case grounds grounds evidence shown beyond reasonable doubt law defendant guilty charge therefore make motion directed verdict time motion overruled every trial lawyer experience knows motions directed verdicts generally made matter course close prosecution case generally denied without close consideration unless case clearly borderline simply unrealistic context expected trial judge pick single vague sentence directed verdict motion acted upon refined imagination require henry three lawyers apparently regarded search seizure claim makeweight mentioned earlier trial gave explanation laxity raising mention cursory conclusional sentence placed secondary position directed verdict motion theory underlying search seizure argument wife freely given permission search family car invalid subtle say least matter presented trial judge extraordinary caught even realized serious problem catch require must addition realize despite inappropriateness granting directed verdict requested partially serve cause defense taking upon frame give cautionary instructions jury disregard evidence obtained fruits search contrast situation presented contemporaneous objection objection must necessarily directed single question admissibility judge must inevitably focus doubt appropriate form relief effect trial judge decision immediate rather remote usually proper timing objection force elaboration objection made case officer testimony search called forth force specific answer wife given permission turn assertion permission ineffective issue short advertently faced trial judge likelihood achieving correct result maximized thus state interest powerfully supports rule maximizing correct decisions concomitantly minimizing errors requiring mistrials retrials alternative state reverse trial judge long motion fails pick act remarkable imagination upon single vague sentence relating admissibility evidence long since admitted trial judge advocate force proper role requiring coax arguments imaginatively reframe requested remedies counsel place upon responsibility trial judge expected discharge appropriate corrective action realistically satisfied purposes rule without question state interest maintaining integrity procedure thus without doubt reliance rule question adequate bar direct review petitioner federal claim ii real reason remanding case emerges closing pages opinion pointed even rule considered adequate state ground fay noia preclude consideration henry federal claim federal habeas corpus unless made appear henry deliberately waived federal claim state proceedings said interest efficient administration criminal justice harmonious relations federal state judiciaries mississippi courts given opportunity pass first instance waiver issue prospect entertained action part encourage grasp opportunity afforded fay noia townsend sain providing state procedures direct collateral full airing federal claims suggested done irritation friction respecting exercise federal habeas corpus power state convictions might ameliorated signify invited voluntarily obliterate state procedures however conducive may orderly conduct litigation might thwart consideration federal claims accept invitation despite assertion settled principles applied future think intimation missed discerning reader opinion least substantial dilution adequate doctrine may expected contrary prediction belied implication opinion settled principles rule relied upon case declared inadequate move toward harmonious federalism disrespect state procedures longer cognizable federal habeas corpus antithesis may say given fay noia attempting justifiable means promoting efficiency administration criminal justice sort efficiency though perhaps appropriate form federalism congenial kind federalism supposed venture say believe federal system known priceless aspect constitutionalism spectre implicit today decision less disturbing already done fay noia believing judgment rests adequate independent state ground dismiss writ issued case improvidently granted matter state law found sufficient corroborative evidence none necessary retrial necessary prevent defendants criminal cases hanging back completion state case first time moving strike piece evidence crucial getting case jury suggestion ante may proceed speculation mississippi overlooked renewal motion directed verdict made completion case hardly requires comment furthermore even counsel fully elaborated argument made context motion strike rather motion directed verdict trial judge properly exercised discretion mississippi denied relief power recognized trial judges federal system order prevent ambushing trial withholding objection made questionable evidence first introduced federalism turned upside denied judges state systems see fed rules crim proc milanovich cert denied hollingsworth isaacs cert denied murray cert denied metcalf first opinion mississippi shows discretion certain circumstances lower procedural bar follow completely free exercise discretion even cases lower federal courts abuse order insulate decisions reversal state must strip discretionary power differentiate different sets circumstances rule operates perverse way