508
Souter, J., dissenting
That claim, if meritorious, would mean that the defendant was convicted despite invalid waivers of at least one of two Sixth Amendment rights (to trial by jury and to confront adverse witnesses) or of a Fifth Amendment right (against compulsory self-incrimination). See Boykin, 395 U. S., at 243. It is, to be sure, no simple task to prove that a guilty plea was the result of "[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant threats," id., at 242-243, but it is certainly at least a difficult question whether a defendant who can make such a showing ought to receive less favorable treatment than the defendants in Burgett and Tucker.
Though the Court offers a theory for drawing a line between the right claimed to have been violated in Burgett and Tucker and the rights claimed to have been violated here, the Court's theory is itself fraught with difficulty. In the Court's view, the principle of Burgett and Tucker reaches only "constitutional violations ris[ing] to the level of a jurisdictional defect resulting from the failure to appoint counsel at all." Ante, at 496 (citing Johnson v. Zerbst, 304 U. S. 458 (1938)). But nowhere in Burgett or Tucker is a distinction drawn between "jurisdictional" and "nonjurisdictional" rights, a fact giving no cause for surprise since long before (in Waley v. Johnston, 316 U. S. 101 (1942)) "the Court openly discarded the concept of jurisdiction—by then more a fiction than anything else—as a touchstone of the availability of federal habeas review." Wainwright v. Sykes, 433 U. S. 72, 79 (1977). Nor was Johnson v. Zerbst, on which the Court today places much reliance, a ringing endorsement of a jurisdiction theory. For many years prior to that case, "the concept of jurisdiction . . . was subjected to considerable strain," Fay v. Noia, 372 U. S. 391, 450 (1963) (Harlan, J., dissenting), and Johnson v. Zerbst was actually the very last case to mention the idea, offering just "token deference to the old concept that the [habeas] writ could only reach jurisdictional defects," Wechsler, Habeas Corpus and the
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