Uveges v. Pennsylvania/Dissent Frankfurter
Mr. Justice FRANKFURTER, with whom Mr. Justice JACKSON and Mr. Justice BURTON concur, dissenting.

Exercise of this Court's jurisdiction is peculiarly for this Court's own determination, and is neither to be conceded nor withheld by counsel's admission. In fact, however, Pennsylvania does not admit that the adjudication by the Supreme Court of Pennsylvania is revewable here. It urges that 'under such facts as are properly before this Court' petitioner's claim must fail. The circumstances under which this Court is reversing the Supreme Court of Pennsylvania show such disregard for the distribution of judicial power between this Court and the highest courts of the States, that I am constrained to dissent.

As the caption announces, this case was brought here by a writ of certiorari directed to the Supreme Court of Pennsylvania. We issued the writ solely on the basis of allegations in the petition for certiorari. In sum, these were the allegations: (1) petitioner was held for two weeks without being able to consult friends or relatives; (2) because of his youth, his ignorance and the complexity of the charges against him, petitioner was incapable of meeting them intelligently without assistance of counsel; (3) his request for legal aid to determine his plea was met with a threat of a severe sentence if the Commonwealth were put to the expense of a trial; (4) he was promised by the District Attorney a short sentence at a reformatory for a plea of guilty; (5) he was not informed of the consequences of a plea of guilty, was unaware of its effect, and intended to plead guilty only to one of several indictments.

On these allegations, without more, we granted the petition for certiorari on June 7, 1948. The record before the Supreme Court of Pennsylvania, on the basis of which that Court denied the petition for an appeal to review the order of the Superior Court affirming the refusal of the Court of Common Pleas of Allegheny County to issue a writ of habeas corpus, was not before us when we granted certiorari. Not until September 8, 1948, was that record sent here by the Supreme Court of Pennsylvania; it was lodged here on September 20, 1948. It now appears that the allegations on which this Court issued its writ to the Pennsylvania Supreme Court were not before that Court in the paper it requires to be filed to determine whether under Pennsylvania law an appeal should be entertained. More particularly, the five allegations summarized above had not been before the Supreme Court of Pennsylvania when it denied an appeal. Apart from two claims involving matters of local procedure, the only ground on which appeal was sought from the Pennsylvania Superior Court was the bare claim that petitioner was denied assistance of counsel, unsupported by those considerations of unfairness which under our rulings, make such denial a denial of the due process guaranteed by the Fourteenth Amendment.

Having granted a review of the action of the Pennsylvania Supreme Court on the basis of allegations not before that Court, this Court now holds that the Supreme Court of Pennsylvania has flouted the Constitution of the United States. It does so despite the fact that at the bar of this Court the representative of Pennsylvania unreservedly admitted that the writ of habeas corpus would not have been dismissed by the courts of Pennsylvania if the allegations that were made here had been made there. We are reviewing what the Pennsylvania Supreme Court did. The only matter before that court was a petition for an allowance of an appeal from the order of the Superior Court of Pennsylvania. The only matter properly before us is disallowance of that appeal. If the Supreme Court of Pennsylvania was, as a matter of State law, authorized to disallow the appeal because the claim was not formulated with adequate particularity, a federal question is wanting and our writ, being without proper foundation, should  e dismissed. The fact that on adequate allegations in a new proceeding before an appropriate Pennsylvania court the claim may be successfully sustained, gives this Court no warrant for assuming that the proper allegations were before the Pennsylvania Supreme Court so as to transmute its denial of an appeal into the denial of a properly presented federal claim.

This Court now makes such an assumption. If we are to decide a case, however grave the issue, only on what appears according to the record, there is no basis for finding that the Supreme Court had before it anything but the petition for allowance of an appeal. This is so even if we assume, although nothing in the record affords us the right to do so,  that the records in the lower courts of Pennsylvania were filed in its Supreme Court before it disallowed an appeal. Appellants often do not raise all that they urged in a lower court, and they sometimes raise an issue for the first time in the appellate court. In any event, the petition here was to review the adjudication of the Supreme Court of Pennsylvania and our writ ran to that court. This is not a case where our writ turns out to be formally misdirected due to the fact that the record to be sent up was lodged, according to local procedure, in one court rather than another. In such a case what is reviewed here, despite the misdirection, is the same record that was before the State court which is to be reviewed. The writ runs to the other court only to get the record here. This case presents quite a different situation. We cannot review the judgment of the Court of Common Pleas of Allegheny County, or that of the Superior Court of Pennsylvania, because neither is a final judgment under Pennsylvania law if either involved a federal constitutional issue. For our purpose of 'finality,' such an issue must go to the Supreme Court of Pennsylvania because that court has obligatory jurisdiction to review it. Pa.Stat.Ann., tit. 17, § 190; Commonwealth v. Caulfield, 211 Pa. 644, 61 A. 243; see Commonwealth v. Gardner, 297 Pa. 498, 500, 147 A. 527. In bringing here for review the action of that Court we must be governed by what was before that Court and cannot rely on what was not before it.

Unless we are to ass me that the Supreme Court of Pennsylvania flagrantly violated its duty under Pennsylvania law to grant an appeal where a violation of a right secured by the Constitution of the United States is properly raised, we must attribute to that court a non-constitutional ground in denying an appeal if it may reasonably be so attributed. If that Court had said explicitly that it requires a more particularized statement for the claim that the petitioner did not plead guilty with full understanding of what he was doing and that the failure to assign him counsel in no wise handicapped him in pleading to the indictments, this Court hardly would find that the Constitution of the United States precludes such a State requirement of particularity in an effort to set aside a sentence eight years after it was imposed. If such a determination by the Supreme Court of Pennsylvania explicity made would not raise a federal question, it does not raise a federal question if on the record we have a right to infer that such was the implicit ruling of the Pennsylvania Court. That Court may dispose of cases summarily as does this Court. The record here plainly calls for the inference that the claims now made were not adequately presented in the paper upon which the Supreme Court of Pennsylvania acted. A comparison between the statements which the Supreme Court of Pennsylvania had before it when it denied the appeal, and the allegations made in the petition before this Court, on the basis of which we issued the writ of certiorari, affords compelling reason for attributing the disallowance of the appeal by the Pennsylvania Supreme Court to its finding that a claim of lack of due process raised after eight years was made without sufficient particularity to call for a trial on the merits. A tabular view of the claims made in the four courts before which they were pressed clearly establishes not only that what was before the Supreme Court of Pennsylvania was very different from what was urged here, but also different from what was urged before the lower Pennsylvania courts.  A finding that a State court disregarded the Constitution of the United States should not be like a game of blindman's buff.

Since the action of the State court may fairly be sustained on the State ground of failure adequately to present the constitutional claim sought to be raised, we must so interpret it. Klinger v. State of Missouri, 13 Wall. 257, 263, 20 L.Ed. 635; Lynch v. People of New York ex rel. Pierson, 293 U.S. 52, 54, 55 S.Ct. 16, 17, 79 L.Ed. 191; Southwestern Bell Telephone Co. v. State of Oklahoma, 303 U.S. 206, 212, 58 S.Ct. 528, 530, 82 L.Ed. 751. Our reviewing power is of course not to be withheld by excogitating some fanciful or recondite doctrine of local law for a State court decision. Here the State ground is fairly obvious. To reject it is to reach out for a federal issue. The Pennsylvania courts are fully aware of the circumstances under which indigent defendants are entitled to the assistance of counsel. See e.g. Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 24 A.2d 1. Only by assuming that the Supreme Court of Pennsylvania was heedless of its duty under the Constitution can we assume that it denied an appeal in this case because of such heedlessness rather than because it enforced allowable requirements by Pennsylvania for asserting a constitutional claim.

Such reasoning is not what is invidiously called legalistic. Law is essentially legalistic the sense that observance of wellrecognized procedure is, on balance, socially desirable. In the well-being of a federalism like ours observance of what on casual view may appear as a sterile technicality is important whenever this Court is brought in potential conflict with State courts. Especially is it important as to those vast reaches of the criminal law which are exclusively within State domain, and which are therefore not subject to the supervision which this Court may exercise over the lower federal courts. Of course this Court has the duty of alertness in safeguarding rights guaranteed by the Constitution of the United States against infringement by the States even in their difficult task of repressing crime and dealing with transgressors. At best, however, intervention by this Court in the criminal process of States is delicate business. It should not be indulged in unless no reasonable doubt is left that a State denies, or has refused to exercise, means of correcting a claimed infraction of the United States Constitution.

Intervention by this Court in the administration of the criminal justice of a State has all the disadvantages of interference from without. Whatever short-cut to relief may be had in a particular case, it is calculated to beget misunderstanding and friction and to that extent detracts from those imponderables which are the ultimate reliance of a civilized system of law. After all, this is the Nation's ultimate judicial tribunal, not a super-legal-aid bureau. If the same relief, although by a more tedious process, is available through a State's selfcorrective process, it enlists the understanding and support of the community. Considerations rooted in psychological and sociological reason underlie the duty of abstention by this Court from upsetting convictions by State courts or their refusal to grant writs of habeas corpus to those under State sentences where State action may fairly be attributed to a rule of local procedure and is not exclusively founded on denial of a federal claim. When a State court explicitly rests its decision on a State ground it is easy sailing. But even when a State court summarily disposes of a case without spelling out its ground, led to do so, as is this Court in many cases, by the burden of its docket, it is our duty not to attribute to the State court flouting of the United States Constitution but to infer regard for its own law, if to that law may reasonably be attributed a finding of inadequacy in the mode of presenting the constitutional claim for which relief is here sought on the merits.

I would dismiss the writ, leaving petitioner to pursue in Pennsylvania the claim he makes here. 

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