francis henderson argued decided may six years conviction felony murder took appeal petitioner sought collateral relief state ground inter alia negroes excluded grand jury indicted relief denied ground petitioner failure raise claim trial constituted waiver claim state law petitioner sought habeas corpus district granted relief appeals reversed relying davis held federal prisoner failed timely challenge allegedly unconstitutional composition grand jury indicted conviction attack grand jury composition action federal collateral relief held appeals correctly held davis rule requires showing cause defendant failure challenge composition grand jury trial also showing actual prejudice applies equal force federal asked habeas corpus proceeding overturn conviction allegedly unconstitutional grand jury indictment louisiana time limitation designed serve important purposes sound judicial administration stressed davis supra considerations comity federalism require purposes accorded less recognition federal asked overturn state conviction asked overturn federal conviction allegedly unconstitutional grand jury indictment pp affirmed stewart delivered opinion burger white blackmun powell rehnquist joined brennan filed dissenting opinion post marshall took part decision case stevens took part consideration decision case bruce rogow appointment argued cause petitioner brief louis jepeway barbara rutledge assistant attorney general louisiana argued cause respondent brief william guste attorney general harry connick louise korns justice stewart delivered opinion davis held federal prisoner failed make timely challenge allegedly unconstitutional composition grand jury indicted conviction attack grand jury composition action collateral relief question case whether state prisoner failed make timely challenge composition grand jury indicted conviction bring challenge federal habeas corpus proceeding petitioner abraham francis brought trial louisiana upon indictment felony murder represented counsel provided state louisiana law force clearly required objection defendant composition grand jury indicted made advance trial otherwise law provided objections shall considered waived shall afterwards urged heard objection form made behalf francis ensuing trial jury found francis guilty sentenced life imprisonment appeal conviction sought collateral relief state ground inter alia negroes excluded grand jury indicted held francis waived claim failed raise trial required state law accordingly denied relief francis thereafter sought writ habeas corpus district eastern district louisiana district granted writ ground negroes impermissibly excluded grand jury returned indictment appeals reversed judgment holding light decision davis case louisiana waiver provision must given effect federal district courts unless showing actual prejudice accordingly appellate remanded case district granted certiorari order consider recurring unresolved question federal law question federal district power entertain application writ habeas corpus case issue davis case goes rather appropriate exercise power long recognized circumstances considerations comity concerns orderly administration criminal justice require federal forgo exercise habeas corpus power see fay noia question decided whether circumstances case invoke application considerations concerns davis supra petitioner indicted federal grand jury upon charge attempted bank robbery federal rule crim proc provides defendant federal criminal case wants challenge constitutional validity grand jury indicted must motion trial otherwise deemed waived challenge except cause shown davis made motion almost three years trial conviction davis brought proceeding set aside conviction upon ground unconstitutional discrimination composition grand jury returned indictment holding relief circumstances denied said think inconceivable congress criminal proceeding foreclosed raising claim commencement trial absence showing cause relief waiver nonetheless intended perversely negate rule purpose permitting entirely different much liberal requirement waiver federal habeas proceedings believe necessary effect congressional adoption rule provide claim waived pursuant rule may later resurrected either criminal proceedings federal habeas absence showing cause rule requires therefore hold waiver standard expressed rule governs untimely claim grand jury discrimination criminal proceeding also later collateral review davis pointed time requirement contained rule serves interests far significant mere judicial convenience waiver provisions rule operative respect claims defects institution criminal proceedings time limits followed inquiry alleged defect may concluded necessary cured witnesses parties gone burden expense trial defendants allowed flout time limitations hand little incentive comply terms successful attack might simply result new indictment prior trial strong tactical considerations militate favor delaying raising claim hopes acquittal thought hopes materialize claim used upset otherwise valid conviction time reprosecution might well difficult beyond question due process clause fourteenth amendment louisiana may attach reasonable time limitations assertion federal constitutional rights particularly state may require prompt assertion right challenge discriminatory practices grand jury omitted may prompt determination preliminary matters avoid necessity second trial long delay determination makes extremely difficult class case state overcome prima facie claim may established defendant material witnesses grand jurors may die leave jurisdiction memories intent specific practices relating selection particular grand jury may lose sharpness furthermore successful attack grand jury sat several years earlier may affect convictions based indictments returned grand jury conclude therefore appeals correct holding rule davis applies equal force federal asked habeas corpus proceeding overturn conviction allegedly unconstitutional grand jury indictment collateral attack upon conviction rule requires contrary petitioner assertion showing cause defendant failure challenge composition grand jury trial also showing actual prejudice accordingly judgment affirmed ordered footnotes negroes serve grand jury district held practice state followed time excluding daily wage earners grand jury service operated exclude disproportionate number negroes question explicitly left open previous cases see davis parker north carolina december requirement embodied paragraph rule contained paragraphs rule case state courts declined impose waiver considered merits prisoner claim different considerations course applicable see lefkowitz newsome see davis presumption prejudice supports existence right inconsistent holding actual prejudice must shown order obtain relief statutorily provided waiver failure assert timely manner justice brennan dissenting dissent fay noia decision attentive solemn constitutional duty preserve intact sanctity great writ habeas corpus ensure federal constitutional rights personal liberty shall denied without fullest opportunity plenary federal judicial review unjustified restriction imposed today federal habeas jurisdiction betrays promise call mind said fay fay established principle reaffirmed henry mississippi last term lefkowitz newsome even state procedural grounds adequate bar direct review conviction federal habeas corpus relief nonetheless available litigate defendant constitutional claims unless deliberate bypass state procedures ibid emphasis supplied see also camp arkansas fay acknowledged orderly criminal procedure desideratum course must sanctions flouting procedure state interest competes ideal ideal fair procedure citation omitted fay rejected legitimacy state interest airtight system forfeitures explicitly addressed extent considerations federalism bar federal habeas corpus review determined deliberate bypass equivalent knowing intelligent waiver standard johnson zerbst fully grant exigencies federalism warrant limitation whereby federal judge discretion deny relief one deliberately sought subvert evade orderly adjudication federal defenses state courts surely stricter rule realistic necessity inadvertence neglect runs afoul state procedural requirement thereby forfeits state remedies appellate collateral well direct review thereof consequences sufficient vindicate state valid interest orderly procedure whatever residuum state interest may circumstances manifestly insufficient face federal policy drawn ancient principles writ habeas corpus embodied federal constitution habeas corpus provisions judicial code consistently upheld affording effective remedy restraints contrary constitution although hold jurisdiction federal courts habeas corpus affected procedural defaults incurred applicant state proceedings recognize limited discretion federal judge deny relief applicant certain circumstances narrowly circumscribed conformity historical role writ habeas corpus effective imperative remedy detentions contrary fundamental law principle unexceptionable therefore hold federal habeas judge may discretion deny relief applicant deliberately orderly procedure state courts forfeited state remedies wish make clear grant discretion interpreted permission introduce legal fictions federal habeas corpus classic definition waiver enunciated johnson zerbst intentional relinquishment abandonment known right privilege furnishes controlling standard habeas applicant consultation competent counsel otherwise understandingly knowingly forewent privilege seeking vindicate federal claims state courts whether strategic tactical reasons fairly described deliberate state procedures open federal habeas deny relief state courts refused entertain federal claims merits though course federal satisfied holding hearing means facts bearing upon applicant default cf price johnston events wish clearly understood standard put forth depends considered choice petitioner choice made counsel participated petitioner automatically bar relief state finding waiver bar independent determination question federal courts habeas waiver affecting federal rights federal question emphasis supplied case isolated instance infidelity teaching fay might seen simple aberration particularly distressing light decisions estelle williams ante also exposes hostility toward makes substantial inroads precedential force fay without directly confronting underlying premises continuing validity possibility distinguishing failure raise different constitutional rights timely manner state courts oversights especially ironical light recent admonition ur institutional duty follow changed law members might wish hudgens nlrb believes fay longer good law institutional duty develop explicate law reasoned consistent manner duty face squarely prior cases interpreting federal habeas statutes honestly state reasons altered perceptions federal habeas jurisdiction one relish prospect informed several terms overruled fay term hudgens nlrb supra never comes grips constitutional statutory principles policy considerations underpinning case adhere holding fay precedents establishing absent deliberate bypass state procedures procedural default justify withholding habeas relief state prisoner convicted derogation constitutional rights longer shares view evident institutional duty say forthrightly explain standard applied cases arising today opinion notably deficient respect properly conceding question federal district power entertain application writ habeas corpus case ante notes davis sustained fed rule crim proc requires showing cause federal defendant may interject untimely challenge constitutional validity composition grand jury indicted ante asserts considerations comity federalism require federal courts give less effect clear interests deemed sufficient sustain rule limitation collateral proceedings ante rule davis applies equal force federal asked habeas corpus proceeding overturn conviction allegedly unconstitutional grand jury indictment ante finally concludes applying davis rule equal force means petitioner must show cause untimely challenge also actual prejudice resulting failure comply procedural rule ibid defects analysis glaring brother marshall pointed dissent davis see justifiable basis holding still concur reasoning dissent therefore repeat arguments fundamentally purposes case must emphasized decision davis least based notion congress intended availability collateral relief federal prisoners governed rules determined govern availability relief criminal proceeding see fail comprehend considerations comity federalism vague concepts given content grant power circumscribe scope congressionally intended relief state prisoners considerations federal system federal courts ultimate arbiters federal constitutional rights justify postponement abnegation federal jurisdiction fay interpreted light factors limitations certiorari jurisdiction policy federal rights denied without fullest opportunity plenary federal judicial review concern often sufficiently sensitive need protect rights historical significance role great writ see concluded discretionary power federal courts deny habeas relief state petitioners deprived constitutional rights confined narrow category situations said waived right claims adjudicated knowing intelligent deliberate bypassing orderly state procedures surely stricter rule realistic necessity yet invoking comity federalism essentially preclude federal habeas relief state defendants deprived constitutional rights long state requires assert rights within certain time period absolute automatic waiver underlying constitutional claim apparently take effect whether defendant knew rights whether untimely challenge nevertheless made time legitimate state interest upset adjudication claim merits whether mere inadvertence actual incompetence counsel accounted untimely challenge difficult conceive pervasive repudiation federal judicial responsibility safeguard preserve precious rights fair criminal process enshrined federal constitution support proposition may gleaned cases cited younger harris ante case applied strictly cabined concept comity federalism recognized salutary considerations dictate federal courts situations defer initial matter state adjudication federal claims concern reflected habeas statutes requirement state defendants exhaust available state remedies seeking federal habeas relief simply inapposite support holding state action denying accused fundamental rights immunized review unintentional failure comply state procedural rule unfortunately yet another example current trend loosing principle comity federalism original moorings converting doctrine timing federal adjudication constitutional claims doctrine essentially precluding adjudication see rizzo goode estelle williams ante increasingly talismanic use phrase comity federalism essentially devoid content younger sense determining timing federal review ominous portent look excuse fashioned stripping federal courts jurisdiction properly conferred congress moreover even carve exception fay waiver right challenge composition grand juries ground rule davis apply equal force proceedings basis inexplicable conclusion petitioner must show cause untimeliness challenge also actual prejudice ante ipse dixit baldly asserted penultimate sentence without slightest veneer reasoning shield obvious fiat reached result hardly qualifies judicial craftsmanship beyond peradventure sad disservice obligation elaborate rationales arriving particular rule law indeed apparent overruling fay least constitutional challenges composition grand juries unexplained imposition actual prejudice requirement petitioner particularly egregious light certain salient facts case facts studiously avoids noting petitioner black youth indicted orleans parish grand jury charge felony murder charge brought course robbery white couple perpetrated several black males one alleged robbers killed apparently first time anyone recall novel charge state sought death penalty three indicted confederates deceased brought orleans parish two months later state appointed uncompensated counsel petitioner period trial petitioner counsel failing health practiced criminal law several years took essentially action respect petitioner defense day trial counsel file motions capital case filed elementary motions application bill particulars motion quash indictment vagueness grounds discovery motion seeking production copies confessions petitioner allegedly made police still unrepresented challenge made composition grand jury indicted petitioner petitioner informed neither fact challenge possible fact counsel made challenge day petitioner trial motion exclude statements made police denied without hearing petitioner convicted felony murder sentenced life imprisonment two older accomplices plea bargaining pled guilty received prison terms although petitioner appeal conviction pursued state collateral relief ground inter alia unconstitutionally indicted blacks disproportionately excluded grand jury indicted state trial judge denied relief ground petitioner represented competent counsel counsel considered rejected idea challenging grand jury array time limit making challenge louisiana statute held challenges asserted timely fashion automatically waived expired louisiana denied petitioner combined petition certiorari writ habeas corpus petitioned writ habeas corpus district eastern district louisiana granted writ ground orleans parish grand jury chosen orleans parish jury commission intentionally systematically exclude daily wage earners unconstitutionally constituted excluded disproportionate number blacks impartial jury representing community relying fay noia johnson zerbst noted although petitioner raise grand jury challenge state courts similar bar federal habeas relief petitioner intentionally relinquished abandoned constitutional rights deliberately bypassed state procedure raising rights response state contention collateral challenge grand jury composition precluded recent decision davis supra district held assuming arguendo mere failure raise issue constitute waiver sufficient cause shown standard upheld sustaining rule davis justify relief light course conduct petitioner counsel given facts unexplained imposition actual prejudice requirement collateral relief state procedural default looms even oppressive district found grand jury indicted petitioner unconstitutionally composed petitioner neither knowingly intelligently waived right proper grand jury indictment deliberately bypassed state procedures adjudicating federal allegations thus meeting fay prerequisites habeas relief moreover district found petitioner shown sufficient cause relief davis test relief procedural waiver recognizing petitioner overcome hurdles showing unconstitutionally composed grand jury cause failure protest fact within time dictated state law nevertheless erects hurdle actual prejudice petitioner path minimum owes petitioner explanation additional burden moreover addition failing supply justifications requirement fails supply content one suspects habeas petitioner never able demonstrate actual prejudice intends mean must prove standard fact indicted particular crime grand jury met constitutional standards fifth circuit hypothetical actual prejudice situation petitioner coparticipants white unconstitutionally composed grand jury failed indict course clear situation seldom eventuate difficult see petitioner whose coparticipants also black ever show actual prejudice seem minimum impose prejudice requirement require state racial bias grand jury shown demonstrate constitutional deprivation harmless error petitioner beyond reasonable doubt indicted offense constitutionally composed grand jury test least allow clearly justifiable relief sought case constitutionally constituted grand jury utmost importance petitioner facts concerning crime essentially undisputed pivotal decision case invocation felony murder doctrine extremely rare factual context laden racial overtones case constitutionally composed grand jury perform historic function determining whether petitioner peculiarly indicted particular crime see calandra especially determining whether interests society best served prosecuting reasons specific conduct terrified youth crime carrying sanction capital punishment case simply incomprehensible suggest habeas relief deprivation federally secured rights circumstances inappropriate principles comity federalism reverse appeals remand direction reinstate order district dated september modified however postpone execution writ release petitioner afford state specified time date entry reinstated order within indict try petitioner although fifth amendment provision presentment indictment grand jury extended hurtado california properly constituted grand jury fundamental constitutional right state proceeds grand jury indictment years established criminal conviction negro stand equal protection clause fourteenth amendment based indictment grand jury negroes excluded reason race strauder west virginia neal delaware although defendant right demand members race included grand jury indicts virginia rives entitled require state deliberately systematically deny members race right participate jurors administration justice ex parte virginia gibson mississippi cf hernandez texas alexander louisiana see also peters kiff sims georgia whitus georgia arnold north carolina eubanks louisiana smith texas moreover never fully addressed constitutional dimensions waiver problem certainly failed davis aiver affecting federal rights federal question fay noia matter constitutional law substantive constitutional right example right counsel right speedy trial may lost unless knowingly intelligently waived defendant see johnson zerbst barker wingo schneckloth bustamonte difficult fathom existence vel non state procedural rule claim right must asserted particular time way dilute constitutional waiver standard example state passed rule defendant must claim indigency upon arrest deemed waived right appointed counsel see legitimately conclude substantive right waived unless defendant knew right appointed counsel knowingly intelligently failed assert similarly even hold defendant may bound certain actions counsel seem counsel must shown knowingly intelligently acted client behalf cf henry mississippi symmetry waiver substantive right absence procedural rule forfeiture right failure assert compliance state procedural rule preserved fay adopted analogue johnson zerbst standard deliberate bypass standard appropriate standard measuring procedural defaults see see also infra furthermore puzzled statement considerations comity federalism require rule davis applicable federal habeas petitions brought state prisoners ante emphasis supplied one thing say whatever unarticulated reason underlies today decision federal courts discretionary matter remedy certain unconstitutionally obtained convictions rendered state courts however since understand today constitutional decision congress legislatively overrule require habeas relief circumstances plainly refuse enforce congressional mandate basis notions comity federalism davis support holding see ante davis analyzing rule affirmed district ruling cause relief shown light facts inter alia method grand jury selection employed number years racial overtones case challenge made three years petitioner conviction government case strong factors used evaluating existence cause clearly related prejudice true davis also noted district taken absence prejudice account denying relief held permissible plainly existence prejudice deemed simply one means demonstrating cause relief thus addressed petitioner contention peters kiff held prejudice presumed cases racial discrimination alleged grand jury composition mandated sufficient prejudice therefore demonstrated establish cause context made statement quoted today concluded although unconstitutional composition grand jury alone justify relief actual prejudice deemed sufficient establish cause within meaning rule however clear absence prejudice factors also establish cause thus davis simply provides support implication actual prejudice justifies relief procedural default certainly suggesting flexible cause shown standard rule similarly contracted federal judges exercise discretion course trial collateral proceedings today decision may read stop short overruling fay across board holding attachment consequence waiver failure make timely objections required state law depends upon constitutional right involved course comport unfortunate trend diluting standards waiver constitutional rights might accomplished see schneckloth bustamonte many quotations opinion appear indicate conceives state interest securing waivers right constitutionally composed grand jury somehow different interest securing waiver constitutional rights perhaps notion harmless error underlying belief whatever articulate perceived bases differentiation believe allow merely passing numerous procedural rules requiring objections particular times eviscerate knowing intelligent waiver doctrine johnson zerbst respect rights right counsel right jury trial fair impartial jury requirement state prove every element crime proof beyond reasonable doubt may however rejecting fay principle waiver constitutional rights must ordinarily made personally defendant see estelle williams ante powell concurring address issue inform us rights may waived accused lawyer moreover embarking program diluting fay standards bind accused waivers counsel concrete content given sixth amendment guarantee effective assistance counsel explanation made actually constitutes action within range competence demanded attorneys criminal cases mcmann richardson tollett henderson see davis indeed defendants constitutional rights controlled counsel conduct exacting scrutiny counsel conduct full course criminal process made although indication record state law prohibited guilty plea minor charge manslaughter see app appears event state unwilling petitioner see ibid reason man plead guilty manslaughter francis sure reason state put electric chair appeals vacated relief even though agreed cause shown sufficient satisfy davis test collateral review federal convictions francis represented civil lawyer unskilled intricacies criminal practice inexperience allowed time challenging indictment pass without objecting grand jury composition appeals held opinion also devoid analysis state might base finding waiver federal constitutional claim failure object within time prescribed state procedural rule without federal habeas must give effect state requirement absent showing actual prejudice habeas petitioner