Full opinion text
MEMORANDUM AND ORDERS JOHN W. OLIVER, Senior District Judge. I This state prisoner case pends in this division of the Court pursuant to an order of transfer entered by the Honorable D. Brook Bartlett. The order to show cause entered by Judge Bartlett stated that “[pjetitioner challenges his 1986 conviction and sentence for second-degree assault entered upon his plea of guilty in the Circuit Court of Saline County, Missouri. Petitioner raises four grounds for relief: (1) he was denied effective assistance of counsel because counsel merely wanted petitioner to plead guilty; (2) he was denied effective assistance of counsel because counsel did not question petitioner ‘about answers that was [sic] given to prosecuter [sic],’ Petition, p. 6; (3) he was denied effective assistance of counsel in that counsel failed to interview and subpoena eyewitnesses who could have provided petitioner with a defense to the crime; and (4) he was denied effective assistance of counsel in that counsel failed to file a motion to suppress evidence that was detrimental to petitioner’s case.” Doc. # 2 at 1-2. We find and conclude that the petitioner’s pro se petition alleges with sufficient particularity a violation of his right to the effective assistance of counsel guaranteed by the Sixth Amendment to the Constitution of the United States. The respondent’s response fails to address the merits of petitioner’s federal constitutional claim. Rather, respondent contends that because “petitioner has failed to file a Missouri Supreme Court Rule 24.035 motion during the time for him to do so, petitioner has defaulted on his available state remedies.” Respondent’s Response at 2. Respondent accordingly prayed that “this Court dismiss this petition without further judicial proceedings.” Id. A. This case presents two questions. First, whether, the prayer of the respondent’s response that this case be summarily dismissed be granted. That question turns on whether the Supreme Court of Missouri’s new Rule 24.035 which affords a state prisoner an available postconviction remedy for only a period of 90 days, “precludes federal-court review” of a state prisoner’s federal constitutional claims. Second, whether in light of the Missouri Constitution’s prohibition against the suspension of the writ of habeas corpus and its constitutional vesting of power in the Supreme Court of Missouri and the three Missouri Courts of Appeal to issue and determine original remedial writs, the petitioner nevertheless may have an available state postconviction remedy by way of State habeas corpus within the meaning of 28 U.S.C. § 2254(b) and (c) that must be exhausted before this Court exercises the habeas corpus conferred on it pursuant to 28 U.S.C. § 2254(a). B. We will discuss both those questions and state the reasons for the orders that will be entered in more than usual detail in accordance with the principles of comity and federalism that prompted the judges of this Court over twenty years ago to participate in a conference with the then Attorney General of Missouri and members of his staff on April 26,1966 that had been scheduled through the good offices of the judges of the Supreme Court of Missouri and to thereafter write and publish this Court’s en banc opinion in White v. Swenson, 261 F.Supp. 42 (W.D.Mo 1966) (en banc), in November 1966. The first question as to whether the prayer of the response that “this Court dismiss this petition without further judicial proceedings” will be answered in the negative under the rationale of the recent opinion of the Court of Appeals for the Eighth Circuit in Barks v. Armontrout, 872 F.2d 237 (8th Cir.1989). Familiar principles of comity and federalism require that we enter an appropriate order under Rule 4 of the Rules governing Section 2254 Cases, 28 U.S.C. foil. § 2254, before we reach the second question. We turn now to the recent decision of the Court of Appeals in Barks v. Armontrout. II A. The question presented to the Court of Appeals in Barks was whether the State corrective process that Missouri made available to a state prisoner at the time he filed his petition for federal habeas corpus could, as the Attorney General of Missouri contended, be construed in a manner that would afford the state prisoner a State court evidentiary hearing and determination of his postconviction federal claims. The Supreme Court of Missouri had, of course, construed its repealed Rule 27.26 in Flowers v. State, 618 S.W.2d 655 (Mo. banc 1981) (en banc), in a manner that did afford a state prisoner the right to file a second Rule 27.26 motion and thus obtain an evi-dentiary hearing of his federal claims in the courts of Missouri. A like construction of new Rule 29.15 would have, in the same manner, made Missouri’s State corrective process available to a state prisoner at the time he filed his federal petition for habeas corpus. Under familiar exhaustion principles, the state prisoner would have been required to exhaust as required by 28 U.S.C. § 2254(b) and (c). The Court of Appeals rejected the Attorney General of Missouri’s exhaustion argument in Barks and remanded the case to the Eastern District of Missouri for further proceedings. The rationale of Barks requires that an order be entered denying the prayer of the respondent’s response that this case be dismissed without further judicial proceedings in this Court. B. The second question presented in this case, although closely related to the question decided in Barks, does not involve the construction of what a State contends is an adequate available State postconviction process. Rather, the Attorney General’s preclusion argument presents the more fundamental question of whether Missouri, by its repeal of Rule 27.26, and its promulgation of new Rule 24.035, has completely eliminated any State postconviction procedure that may be said to have been available to the petitioner in this case at the time he filed his petition for habeas corpus invoking the jurisdiction conferred on this Court pursuant to 28 U.S.C. § 2254(a). For it is clear that the Attorney General contends that if a state prisoner fails for any reason to file a Rule 24.035 motion within the 90-day statute of limitation period provided in that new rule, “his default creates an adequate and independent state procedural bar which precludes federal-court review of his claims.” Doc. # 3 at 2. Although Barks involved a relatively routine exhaustion question, it is important to note what the Court of Appeals said in that case in regard to how a federal court must consider the construction it must give to the new postconviction rules that the Supreme Court of Missouri promulgated to take the place of repealed Rule 27.26 that served as Missouri’s State corrective process for over thirty-five years. The Barks court noted, for example, that it agreed with the state prisoner’s argument that “under the plain language of Rule 29.15, and in the absence of any Missouri Supreme Court ruling to the contrary, the state courts would he precluded from giving any further consideration to his claims.” (Emphasis added). 872 F.2d at 239. Appropriate consideration must also be given to positions taken by the Attorney General of Missouri in regard to Missouri’s new postconviction rules. For Barks noted that “the Attorney General takes the position that Rule 29.15 provides for absolutely no successive petitions.” Barks accordingly held that until “the highest court of the state tells us otherwise, we have no reason not to heed the position of the Attorney General of the state.” Id. Federal courts are, of course, hound by the construction that the State courts give to their State corrective procedures. Barks recognized that familiar principle when it held that: If the Missouri Supreme Court determines that Rule 29.15 dictates a different result, we will be bound by such decision. Until then, we are convinced Barks’s further attempts to seek redress in state court will he futile. Thus, we reverse the district court’s dismissal without prejudice, and remand the case for the district court to consider all of Barks’s claims. Id. C. It is clear that the Court of Appeals’ decision in Barks was no more and no less than a consistent application of the doctrine of exhaustion that has been recognized and applied by the Supreme Court of the United States since at least the time Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), was decided over one hundred years ago. Appendix A is attached to this memorandum opinion in order to demonstrate that Barks was decided in a manner consistent with the Supreme Court of the United States most recent trilogy of state prisoner habeas corpus cases handed down February 22,1989 and other recently decided exhaustion cases. Consistent with Barks’ admonition that positions stated by the Attorney General of Missouri should be given appropriate consideration in the construction of Missouri’s new postconviction procedures, Appendix B is attached to this memorandum opinion in which we discuss the views publicly stated by John M. Morris, Chief Counsel for the Criminal Division of the Missouri Attorney General’s Office, in regard to the Supreme Court of Missouri’s repeal of Rule 27.26 and that court’s promulgation of new Rule 24.035 and Rule 29.15. It is important to note that Mr. Morris’ article commenced with his discussion of the new rules with the statement that although the new rules “run somewhat counter to the past trend in Missouri of expanding postconviction remedies, they represent no philosophical departure from current Rule 27.26_” (Emphasis added). Id. at 435. Any interpretation of new Rule 24.035 consistent with the Attorney General’s contention in this case that the Supreme Court of Missouri actually intended by its promulgation of its new postcon-viction rules to “preclude” federal court habeas corpus review of a state prisoner’s federal constitutional claims would indeed be a radical “philosophical departure from [repealed] Rule 27.26.” The Court of Appeals also noted in Barks that the language of Missouri’s new Rule 29.15(k) “mirrors the language” of one of the rules proposed by Chief Justice Donnelly in his dissent in Flowers v. State, 618 S.W.2d 655 (Mo. banc. 1981) (en banc). 872 F.2d at 239. Most significantly, Barks added that the “Attorney General has conceded that the Flowers decision was a factor in the revision of the rules.” Id. Substantial controversy in regard to Missouri’s available postconviction procedures was, of course, created by the proposals Chief Justice Donnelly made in 1981 in his Flowers dissent. The Supreme Court of Missouri has not stated the full extent that it accepted the rationale of Chief Justice Donnelly’s proposals when it did, in fact, accept his proposal that Rule 27.26 should be repealed. Appendix C is therefore attached to this memorandum opinion in which we discuss what Chief Justice Donnelly actually proposed and, more important, what he did not propose in his 1981 dissent in Flowers and in the two new rules that he proposed for adoption by the Supreme Court of Missouri. Rule 27.26 was first promulgated in 1952 after the Supreme Court of the United States reversed the Supreme Court of Missouri outright in Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398 (1945). Williams v. Kaiser will be discussed in detail in part IV to follow. Difficulties regarding the construction and application of Rule 27.26 in both its 1952 and 1967 form is discussed in Appendix D attached hereto. Ill This Court should not reach the second question presented in this case until it is able to consider additional information that is not presently before this Court. An appropriate order accordingly will be entered pursuant to the Rules governing § 2254 Cases that will require the respondent to file a supplemental response which will require the Attorney General to state whether the petitioner may have had any available State postconviction remedy corrective process at the time he filed his petition for federal habeas corpus in this Court. The information that will be furnished by the Attorney General may eventually force this Court to conclude that the courts of Missouri will not exercise the habeas corpus jurisdiction conferred by Art. V, § 4, Mo. Const, (as amended). The ultimate question that this Court might be forced to decide under such a circumstance would be a substantially different question from the question recently considered by the Court of Appeals in Williams v. Lockhart, 873 F.2d 1129 (8th Cir.1989). For that case involved a three-year statute of limitations provided in Ark.R.Crim.P. 37 rather than a 90-day statute of limitations as provided in new Rule 24.035. Quite apart from the question of whether, under the Supreme Court of the United States decisions discussed in this memorandum opinion, a State has power to impose any statute of limitations on its State corrective process that could be said to preclude federal habeas review, we believe it obvious that a case involving Arkansas’ three-year period of limitation presented an entirely different question than this case presents in regard to Missouri’s 90-day period of limitation. A determination that Missouri presently fails to provide any “State corrective process” within the meaning of 28 U.S.C. § 2254(b) and that it presently fails to provide any other “available procedure” within the meaning of 28 U.S.C. § 2254(c) under which a state prisoner could have obtained a full and fair evidentiary hearing of his federal claims in some court of Missouri at the time he filed his petition for federal habeas corpus relief would present the Fourteenth Amendment question the Court refused to decide in Case v. Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965). That precise question will be discussed in a later part of this memorandum opinion. Rule 4 of the Rules governing Section 2254 Cases provides an appropriate procedure under which this Court may obtain additional information before it may be required to reach the second question presented by the response filed by the Attorney General in this case. IV A. In the event this Court is eventually required to find and conclude from the information to be provided in the supplemental response to be filed by the Attorney General of Missouri that Missouri has decided to become the only State in the Union that refuses to provide any “available State corrective process” this Court would be required to reach the question the Court left open in Case v. Nebraska. The question of whether a State should be afforded an opportunity of establishing an adequate State corrective process by court rule or by statute is a substantially different question than the question of “whether the Fourteenth Amendment requires that the States afford state prisoners some adequate corrective process for the hearing and determination of claims of violation of federal constitutional guarantees,” for which cer-tiorari was granted in Case v. Nebraska. Id. at 337, 85 S.Ct. at 1487. The Court has had no occasion to revisit the entirely different Fourteenth Amendment question it again left open in Case v. Nebraska because after the Court’s decision in that case every State in the Union did, in the exercise of reasonably deliberate speed, adopt an adequate State procedure that would be available to a state prisoner seeking postconviction relief. Justice Clark, in order to focus the attention of the many states that had not provided adequate State postconviction procedures to the urgency of that situation, stated in his concurring opinion in Case v. Nebraska that: It should be pointed out ... that as early as 1949 this Court in Young v. Ragen, 337 U.S. 235 [69 S.Ct. 1073, 93 L.Ed. 1333], articulated the principle that the States must afford prisoners some clearly defined method by which they may raise claims of denial of federal rights. Id., at 239 [69 S.Ct. at 1074]. 381 U.S. at 337-38, 85 S.Ct. at 1487. Young v. Ragen and the other Supreme Court cases to which we will make later reference establish that a finding that a particular State has in fact failed to provide any adequate corrective process for the hearing and determination of a state prisoner’s federal constitutional claims must call for a remedy that would do much more than simply shift the duty of conducting evidentiary hearings from the state to the federal system. The Court noted in Young v. Ragen that petitioner’s State habeas petition contained “allegations which, if true, raise substantial questions under the due process clause of the Fourteenth Amendment.” Id. 337 U.S. at 237, 69 S.Ct. at 1073. The Attorney General of Illinois argued in that case, not unlike the Attorney General of Missouri argued in Barks, that “certain statements in the Illinois Supreme Court’s opinions [citing three Illinois cases], ... strongly indicate that habeas corpus would now be the appropriate Illinois procedure in a case such as the one before us.” Id. Chief Justice Vinson, speaking for a unanimous Court held that “it is not simply a question of state procedure when a state court of last resort closes the door to any consideration of a claim of denial of a federal right.” Id. 337 U.S. at 238, 69 S.Ct. at 1074. The Court observed that unless State “habeas corpus is available, therefore, we are led to believe that Illinois offers no post-trial remedy in cases of this kind.” Id. The Court accordingly held: The doctrine of exhaustion of state remedies, to which this Court has required the scrupulous adherence of all federal courts, see Ex parte Hawk, 321 U.S. 114 [64 S.Ct. 448, 88 L.Ed. 572] and cases cited, presupposes that some adequate state remedy exists. We recognize the difficulties with which the Illinois Supreme Court is faced in adapting available state procedures to the requirement that prisoners be given some clearly defined method by which they may raise claims of denial of federal rights. Nevertheless, that requirement must be met. (Emphasis added). Id. at 238-39, 69 S.Ct. at 1074-75. The Court made clear in Young v. Ragen that it would not conclude that there was “no post-trial procedure [in Illinois] by which federal rights may be vindicated” unless and until the Court was “advised of that fact upon remand of this case.” 337 U.S. at 239, 69 S.Ct. at 1075. More importantly, the Court stated forty years ago that a case involving a State’s violation of the Fourteenth Amendment does not present a case to which the doctrine of exhaustion is to be applied. B. The Court’s disposition of Case v. Nebraska, without deciding the Fourteenth Amendment question that this Court may or may not eventually be forced to decide, enabled the Court to avoid a decision on the petitioner’s contention that “the Supremacy Clause and the fundamental Fourteenth Amendment right to a hearing constitutionally require the States to afford corrective judicial process to remedy federal constitutional defects in their criminal prosecutions.” 381 U.S. at 343 n. 5, 85 S.Ct. at 1490 n. 5. Detailed attention need only he given Mooney v. Holohan. For that case presented the factual situation in which the State of California, like the State of Missouri in this case, had a constitutional provision that expressly vested power in the Supreme Court of California to exercise habeas corpus jurisdiction. Mooney v. Holohan pended on the Court’s original jurisdiction docket on Mooney’s motion for leave to file a petition for habeas corpus. Mooney’s petition alleged a federal claim that “the State holds him in confinement without due process of law in violation of the Fourteenth Amendment of the Constitution of the United States.” Of paramount importance for purposes of this case, the Court stated that Mooney contended that California violated the Fourteenth Amendment by failing “to provide any corrective judicial process by which a conviction so obtained may be set aside.” Id. The Court then stated that “the Attorney General urges that the State was not required to afford any corrective judicial process to remedy the alleged wrong.” (Emphasis added). Id. 294 U.S. at 113, 55 S.Ct. at 342. The Court summarily rejected the Attorney General’s argument, citing Frank v. Mangum, 237 U.S. 309, 335, 35 S.Ct. 582, 590, 59 L.Ed. 969 (1915), and Moore v. Dempsey, 261 U.S. 86, 90, 91, 43 S.Ct. 265, 266, 267, 67 L.Ed. 543 (1923). The Court, however, did not grant Mooney leave to invoke the original habeas corpus jurisdiction of the Supreme Court of the United States. It refused to do so solely for the reason it was “not satisfied, ... that the State of California has failed to provide such corrective judicial process,” specifically noting that under the Constitution of California, Art. I, § 5, and Art. VI, § 4, the “prerogative writ of habeas corpus is available in that State.” 294 U.S. at 113, 55 S.Ct. at 342. The Court accordingly held that it was thus “not at liberty to assume that the State has denied to its court jurisdiction to redress the prohibited wrong upon a proper showing and in an appropriate proceeding for that purpose.” Id. While Mooney was denied leave to invoke the Court’s original habeas corpus jurisdiction, that leave was denied “without prejudice.” Id. at 115, 55 S.Ct. at 343. The order to be entered by this Court which will require the Attorney General to state whether habeas corpus is an available State postconviction remedy in Missouri is consistent with the rationale of Mooney v. Holohan. It must, of course, be recognized that should it become apparent that Missouri has failed to provide any adequate available State postconviction remedy, all federal courts are under duty to exercise federal habeas corpus jurisdiction and to “dispose of the case as law and justice requires.” 28 U.S.C. § 2241. Under such a circumstance, the Court has made clear that law and justice does not require a federal court to hold an evidentiary hearing before it grants a state prisoner federal habeas corpus relief. A State under such a circumstance is not entitled to be afforded another opportunity to remedy its Fourteenth Amendment violation by belatedly establishing a State corrective process. The Court has held in a substantial number of cases that a state prisoner may be entitled to federal Fourteenth Amendment habeas corpus relief without an evidentiary hearing being conducted in either a State or a federal court. We need, however, to look only to the remedy the Court applied to the State of Missouri in 1945 when the Supreme Court of Missouri refused to grant a state prisoner a full and fair hearing of the federal claims alleged in his state petition for habeas corpus. C. Particular attention will therefore be given Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398 (1945). In that case, the Court reversed the Supreme Court of Missouri outright for the reason that the original habeas corpus proceeding conducted in the Supreme Court of Missouri failed to accord the state prisoner a full and fair evidentiary hearing of his federal constitutional claim. The petitioner in Williams v. Kaiser was in custody under a 15-year sentence for armed robbery imposed on May 28, 1940 after trial. The Court noted that in “April, 1944, he filed a petition for a writ of habe-as corpus in the Supreme Court of Missouri.” 323 U.S. at 472, 65 S.Ct. at 364. That petition alleged in substance that the petitioner’s request for appointment of counsel under Section 4003, R.S.Mo.1939, had been denied. The Court stated that “if the allegations [of the petition] are taken as true, petitioner was denied due process of law” and that the “petition establishes on its face the deprivation of a federal right.” Id. at 476, 478, 65 S.Ct. at 366, 367. The Court noted that “Missouri does not claim that habeas corpus is not available in this type of case or that under Missouri law there is some procedure other than habeas corpus available to petitioner in which he may challenge the judgment of conviction on constitutional grounds.” Id. at 477, 65 S.Ct. at 367. The Court held that Missouri’s denial of the state prisoner’s right to an evidentiary hearing in the original habeas corpus proceeding conducted in the Supreme Court of Missouri required the outright reversal of that court with the result that the state prisoner was granted the habeas corpus relief prayed for in his state petition for habeas corpus. The allegations of the state prisoner’s petition filed in the Supreme Court of Missouri were taken as true, and thus established a deprivation of the state prisoner’s Fourteenth Amendment claim. The Court concluded in Williams v. Kaiser “on the present state of the record before us, we do not see what more petitioner need do to establish the federal right on which his petition is based.” Id. at 479, 65 S.Ct. at 368. D. Williams v. Kaiser vividly illustrates the fundamental difference between the relief to which a state prisoner is entitled (1) in a case in which a State court improperly fails to conduct an evidentiary hearing in accordance with an available State postconviction corrective process which, on its face, entitles the prisoner to a full and fair evidentiary hearing in a State court and (2) a case in which a State has failed to provide any State postconviction process under which a state prisoner may obtain a State postconviction evidentiary hearing of his federal claims that is available to him at the time he files his petition for federal habeas corpus. In the first type of case, the long-standing doctrine of exhaustion, codified in 28 U.S.C. § 2254(b) and (c), shifts the burden of conducting the evidentiary hearing to which the prisoner is entitled from the State court system to a federal district court sitting in that State. In the second type of case, however, involving a State’s Fourteenth Amendment failure to provide any State corrective process that is available to a state prisoner at the time he files his petition for federal habeas corpus, the remedy, as would be expected, calls into play principles that are totally unrelated to the doctrine of exhaustion. A failure to recognize the fundamental difference between the two types of cases would call for an application of the doctrine of exhaustion to both types of cases with the unreasonable result that every State in the Union would have power to shift the burden of conducting all state prisoner postconviction evidentiary hearings from the State judicial systems to the federal district courts sitting in their respective states. Recognition of such an assumed power would, of course, enable each of the States to deprive a state prisoner of access to the habeas corpus jurisdiction vested in all federal courts by the Congress for over a century. The Fourteenth Amendment, Section 1, adopted after a tragic and bloody confrontation of federal and state power, has long provided that "... nor shall any State deprive any person of life, liberty, or property without due process of law.” Section 5 of the Fourteenth Amendment provided that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” The Habeas Corpus Act of 1867 was enacted by the Congress pursuant to the power vested in it by Section 5 of the Fourteenth Amendment. It was therefore to be expected that a state prisoner’s right of access to the habeas corpus jurisdiction vested in all federal courts by that Act would be enforced pursuant to the Fourteenth Amendment rather than by the doctrine of exhaustion which simply has no application to a case involving violation of that Amendment. The reason the petitioner in Williams v. Kaiser was afforded federal habeas relief without having either a State or federal court evidentiary hearing was the result of the Court’s enforcement of a state prisoner’s due process rights as guaranteed by the Fourteenth Amendment. The Court’s enforcement of a state prisoner’s Fourteenth Amendment due process right effectively eliminated any requirement of an evidentiary hearing of a state prisoner’s federal postconviction claims in either a State or federal court. The Court simply established the principle that the federal claims alleged in a state petition or motion for postconviction relief must be assumed to be true and that a State’s Fourteenth Amendment violation must be held to be established if it is determined that a State has deprived the petitioner of access to a State court that would be able to hear and determine the federal claims, which if true, would entitle the state prisoner to federal habeas corpus relief. E. The establishment of such an effective remedy for due process enforcement under the Fourteenth Amendment could hardly have reasonably come as a surprise to any State in the Union. For it would have been most unreasonable for any Northern, Southern, or Border State to assume that the same remedy that would be applied to a case to which the doctrine of exhaustion was applicable would be the same remedy that would be applied to a case in which a particular State had refused, in violation of the Due Process Clause of the Fourteenth Amendment, to provide a state prisoner with access to any available State corrective process under which he would be able to obtain an adequate State court hearing and determination of the postconviction federal claims alleged in his petition or motion for State postconviction relief. F. It is, of course, true that the precise question for which the Court granted cer-tiorari in Case v. Nebraska, — “whether the Fourteenth Amendment requires that the States afford state prisoners some adequate corrective process for the hearing and determination of claims of violation of federal constitutional guarantees” (381 U.S. at 337, 85 S.Ct. at 1487) — has yet to be decided by the Court. It is equally true, however, from what the Court has said over a period of almost fifty years in cases that have presented closely related questions, that when and if the Court is required to decide that precise question, it will answer it in the affirmative. It was almost fifty years ago that the Court stated in Ex parte Hull, 312 U.S. 546, 549, 61 S.Ct. 640, 642, 85 L.Ed. 1034 (1941), that “the state and its officers may not abridge or impair petitioner’s right to apply to a federal court for a writ of habe-as corpus.” In the same year that Williams v. Kaiser was decided, the Court stated in House v. Mayo, 324 U.S. 42, 45, 65 S.Ct. 517, 519, 89 L.Ed. 739 (1945), that if a State court denied a petition for habeas corpus without requiring the respondent to answer and without a hearing, “we must assume that the petitioner’s allegations are true,” citing Williams v. Kaiser, 323 U.S. 471, 473-474, 65 S.Ct. 363, 365, 89 L.Ed. 398. Later in the same year, the Court stated the same thing in White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348 (1945). White v. Ragen also noted that it “has come to the attention of this Court that for some years the warden of the Illinois State Penitentiary, contrary to Ex parte Hull, 312 U.S. 546 [61 S.Ct. 640, 85 L.Ed. 1034], denied the rights of prisoners to access to the courts unless they procured counsel to represent them.” (Emphasis added). 324 U.S. at 762 n. 1, 65 S.Ct. at 980 n. 1. The Court was still having difficulty with the State of Illinois ten years later when Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), was decided in 1956. The Court held in that leading case that a defendant in a state criminal case had a right of access to a State appellate court under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), was decided twelve years after Griffin. The Court held that “it is fundamental that access of prisoners to the courts for the purpose of presenting their complaints may not be denied or obstructed.” (Emphasis added). Id. at 485, 89 S.Ct. at 749. In Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), decided in 1977, the Court held that: It is now established beyond doubt that prisoners have a constitutional right of access to the courts. This Court recognized that right more than 35 years ago when it struck down a regulation prohibiting state prisoners from filing petitions for habeas corpus unless they were found “ ‘properly drawn’ ” by the “ ‘legal investigator’ ” for the parole board. Ex parte Hull, 312 U.S. 546 [61 S.Ct. 640, 85 L.Ed. 1034] (1941). We held this violated the principle that “the state and its officers may not abridge or impair petitioner’s right to apply to a federal court for a writ of habeas corpus.” Id., at 549 [61 S.Ct. at 642]. See also Cochran v. Kansas, 316 U.S. 255 [62 S.Ct. 1068, 86 L.Ed. 1453] (1942). (Emphasis added). 430 U.S. at 821-22, 97 S.Ct. at 1494-95. Bounds’ basic holding that “prisoners have a constitutional right of access to the courts” has never been questioned in any later decision of the Court. Neither Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), nor Murray v. Giarratano, — U.S.-, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989), presented an access to the courts question. Both cases presented the question of a prisoner’s right of access to counsel in a State postconviction proceeding, a question the Court answered in the negative. Chief Justice Rehnquist’s plurality opinion in Giarratano simply concluded that the Fourth Circuit should be reversed in that case for the reason that its opinion “rests on a misreading of our decision in Bounds v. Smith, 430 U.S. 817 [97 S.Ct. 1491, 52 L.Ed.2d 72] (1977).” Id. — U.S. at-, 109 S.Ct. at 2767. That plurality opinion assumed that Bounds was correctly decided and stated that Finley held that “there was no federal constitutional right to counsel for indigent prisoners seeking state postconviction relief.” (Emphasis added). Id. at-, 109 S.Ct. at 2769. The Giarratano plurality opinion simply concluded that there “is no consistency whatever between the holding of Bounds and the holding in Finley” (id. at -, 109 S.Ct. at 2772) for the reason that the “Court held in Bounds that a prisoner’s ‘right to access’ to the courts required a state to furnish access to adequate law libraries in order that the prisoners might prepare petitions for judicial relief.” (Emphasis added). Id. at-, 109 S.Ct. at 2771. Justice O’Connor’s concurring opinion in Giarratano appropriately recognized that “our decision in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), allows the States considerable discretion in assuring that those imprisoned in its jails obtain meaningful access to the judicial process.” (Emphasis added). Id. — U.S. at-, 109 S.Ct. at 2772. Justice Kennedy’s opinion concurring in the judgment also recognized that the “requirement of meaningful access can be satisfied in various ways ... was made explicit in our decision in Bounds v. Smith, 430 U.S. 817 [97 S.Ct. 1491, 52 L.Ed.2d 72] (1977).” (Emphasis added). Id. at-, 109 S.Ct. at 2773. Justice Stevens’ dissenting opinion, joined by Justices Brennan, Marshall, and Blackmun, expressed the view that “[f]ar from creating a discrete constitutional right, Bounds constitutes one part of a jurisprudence that encompasses ‘right-to-counsel’ as well as ‘access-to-courts’ cases.” Id. at-, 109 S.Ct. at 2774. Thus from the time Ex parte Hull was decided in 1941, the Court has made clear for almost fifty years that a “state and its officers may not abridge or impair a petitioner’s right to apply to a federal court for a writ of habeas corpus.” 312 U.S. at 549, 61 S.Ct. at 642. Those cases establish that the constitutional prohibition against a State’s efforts to deprive a state prisoner from access to a federal court’s habeas corpus jurisdiction is grounded on the Due Process Clause of the Fourteenth Amendment. The failure of a State to provide any State corrective process calls for a Fourteenth Amendment remedy — a remedy that is an entirely different remedy than that which is to be applied to a State court’s failure to construe and apply an available State corrective process, which, on its face, permits meaningful access to the courts of a particular State for the hearing and determination of a state prisoner’s federal postconviction claims. V A draft of this memorandum opinion and the appendices attached thereto was briefly circulated among the active and senior Judges of this Court who have the duty of processing the numerous state prisoner ha-beas corpus cases because I am confident that all consider this a question of great seriousness. Judge Sachs has suggested, and I agree, that respondent should address the question of whether State habeas corpus is an available State remedy for prisoner claims of violation of federal constitutional rights which were allegedly not known to the prisoner during the short period relief is afforded under Rules 24.035 and 29.15. Judge Sachs notes that the Missouri rules call for a motion setting forth all known claims and acknowledging waiver of known claims that are not included. He further notes that Judge Donnelly’s dissent in Flowers also seemed to be directed toward requiring very prompt presentation of known claims. Judge Sachs finds no explicit or implicit limitation on presenting late-discovered claims to some court other than the sen-fencing court and requests a reasoned explanation of the views of the Attorney General on how such claims are to be presented and, if there is a claim of preclusion, how such preclusion could be justified under the Missouri Constitution and the United States Constitution. It has also been suggested that it should be added that the Judges of this Court would be happy to attend any conference in Jefferson City, Missouri which may be convened through the good offices of the Chief Justice and Judges of the Supreme Court of Missouri that might serve a purpose similar to the purpose served at the conference convened in the same manner before this Court wrote and published its Court en banc opinion over twenty years ago in White v. Swenson, 261 F.Supp. 42 (W.D.Mo.1966) (en banc). We therefore find and conclude in accordance with Rule 4 that it does not plainly appear from the face of petitioner’s petition that the petitioner may not be entitled to federal habeas corpus relief. We further find and conclude that it is appropriate that this Court should enter an order requiring the Attorney General to file a supplemental response which will throw further light on the interpretation that should be placed on Rule 24.035. VI For the reasons stated, it is ORDERED (1) that the prayer of the respondent’s response that this Court dismiss the pending petition for federal habe-as corpus relief without further judicial proceedings should be and the same is hereby denied. It is further ORDERED (2) that the respondent shall on or before July 24, 1989, prepare, serve, and file a supplemental response to this Court’s order to show cause which shall include, but not be limited to the following: (a)The supplemental response shall be directed to the merits of the federal Sixth Amendment ineffective assistance of counsel claims alleged in the pending petition. (b) A copy of the transcript of petitioner’s plea of guilty which the Attorney General stated he would endeavor to file with the Court shall be attached as an exhibit to the supplemental response, together with all other State court materials relevant to the determination of the merits of the petition, all in accordance with Rule 7 of the Rules governing Section 2254 cases. (c) In accordance with Rule 4 of the Rules governing Section 2254 Cases, the supplemental response shall include in a separate part thereof, a particularized statement as to whether petitioner had any available postconviction State corrective process or procedure within the meaning of 28 U.S.C. § 2254(b) and (c) at the time petitioner filed his petition for federal habe-as corpus which the petitioner should be required to exhaust before this Court should exercise the habeas corpus jurisdiction conferred by the Congress pursuant to 28 U.S.C. § 2254(a). (d) The supplemental response shall also address the question suggested by Judge Sachs in part V of this memorandum opinion in a separate part of the supplemental response to be filed. It is further ORDERED (3) that the time within which respondent’s supplemental response is to be filed may be extended for a reasonable period of time for good cause established by a motion filed before July 21, 1989. APPENDIX A BARKS IS CONSISTENT WITH THE COURT’S MOST RECENT STATE PRISONER HABEAS TRILOGY AND OTHER RECENT EXHAUSTION CASES I The Court of Appeals’ decision in Barks is consistent with the recent trilogy of state prisoner habeas corpus cases decided by the Supreme Court on February 22, 1989. In Castille v. Peoples, — U.S.-, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989), one of the rare unanimous opinions of the Court in this difficult and complex area of the law, the Court granted certiorari “to consider whether the presentation of claims to a State’s highest court on discretionary review, without more, satisfies the exhaustion requirements of 28 U.S.C. § 2254.” Id. 109 S.Ct. at 1059. Justice Scalia, writing for a unanimous court, quoted 28 U.S.C. § 2254(c) and stated that: “Read narrowly, this language appears to preclude a finding of exhaustion if there exists any possibility of further state court review.” Id. The Court held, however, that: We have, however, expressly rejected such a construction, Brown v. Allen, 344 U.S. 443, 448-449, n. 3 [73 S.Ct. 397, 402-403, n. 3, 97 L.Ed. 469] (1953), holding instead that once the state courts have ruled upon a claim, it is not necessary for a petitioner “to ask the state for collateral relief, based upon the same evidence and issues already decided by direct review.” Id., at 447 [73 S.Ct. at 402]. This interpretation reconciles § 2254(c) with § 2254(b), which provides that federal habeas review will lie where state corrective processes are “ineffective to protect the rights of the prisoner.” It would be inconsistent with the latter provision, as well as with underlying principles of comity, to mandate recourse to state collateral review whose results have effectively been predetermined, or permanently to bar from federal habeas prisoners in States whose post-conviction procedures are technically inexhaustible. Id. Castille therefore concluded that a state prisoner habeas petitioner must be considered to have exhausted his available State postconviction remedies “if it is clear that respondent’s claims are now procedurally barred under Pennsylvania law. See, e.g., Engle v. Isaac, 456 U.S. 107, 125-126 n. 28, [102 S.Ct. 1558, 1570-1571 n. 28, 71 L.Ed.2d 783] (1982); Teague v. Lane, [ — ] U.S. [-], [-] [109 S.Ct. 1060, 1068, 103 L.Ed.2d 334] (1989).” Castille’s citation of footnote 28 in Engle v. Isaac, is most significant. For that footnote makes clear that the question presented in regard to the impact of a State procedural default that might occur at the trial of a criminal case is an entirely separate and different question than that presented in regard to whether a petitioner may be said to have an available State court process within the meaning of Section 2254(b) that must be exhausted. Engle v. Isaac’s footnote 28 stated the following: As we recognized in Sykes, 433 U.S., at 78-79 [97 S.Ct. at 2502], the problem of waiver is separate from the question whether a state prisoner has exhausted state remedies. Section 2254(b) requires habeas applicants to exhaust those remedies “available in the courts of the State.” This requirement, however, refers only to remedies still available at the time of the federal petition. See Humphrey v. Cady, 405 U.S. [504], at 516 [92 S.Ct. 1048 at 1055, 31 L.Ed.2d 394]; Fay v. Noia, 372 U.S. 391, 435 [83 S.Ct. 822, 847, 9 L.Ed.2d 837] (1963). (Emphasis added). 456 U.S. at 125-26, 102 S.Ct. at 1570-71. Footnote 28 then observed that the available postconviction remedies provided by Ohio law “provides only limited collateral review of convictions; prisoners may not raise claims that could have been litigated before judgment or on direct appeal.” Id. at 126, 102 S.Ct. at 1571. The Court concluded that for that reason “we agree with the lower courts that state collateral relief is unavailable to respondents and, therefore, that they have exhausted their state remedies with respect to this claim.” Id. Although a divided Court erected still another barrier for state prisoner habeas petitioners in Teague v. Lane, — U.S. -, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), reh’g denied, — U.S. -, 109 S.Ct. 1771, 104 L.Ed.2d 206, Justice Stevens’ concurring opinion in the judgment of that case, joined by Justice Blackmun, stated that “[i]t is true that ‘a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim proeedurally barred.’ Harris v. Reed, [ — ] U.S. [-], [-], n. 9 [109 S.Ct. 1038, 1043, n. 9, 103 L.Ed.2d 308] (1989) (citing Castille v. Peoples, [ — ] U.S. [-], [109 S.Ct. 1056, 103 L.Ed.2d 380] (1989); ante, at [109 S.Ct. at 1067-1068]).” Id. 109 S.Ct. at 1083. Harris v. Reed, — U.S.-, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), cited in Teag-ue, presented the question of whether “the ‘plain statement’ rule of Michigan v. Long, 463 U.S. 1032, 1042, and n. 7 [103 S.Ct. 3469, 3477, and n. 7, 77 L.Ed.2d 1201] (1983) applies in a case on federal habeas review as well as in a case on direct review in this Court.” Id. 109 S.Ct. at 1040. The Court answered that question in the affirmative. Harris thus made clear that a State “procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar. Caldwell [v. Mississippi ], 472 U.S. [320], at 327 [105 S.Ct. 2633 at 2638, 86 L.Ed.2d 231], quoting Long, 463 U.S., at 1041 [103 S.Ct. at 3476].” Id. 109 S.Ct. at 1043. In footnote 9 supporting that conclusion the Court cited Section 2254(b) and flatly stated that “a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred. Castille v. Peoples, [ — ] U.S. [-], [109 S.Ct. 1056, 1060, 103 L.Ed.2d 380] (1989); Teague v. Lane, [ — ] U.S. [-], [-, 109 S.Ct. 1060, 1067-1068, 103 L.Ed.2d 334] (1989) (plurality opinion).” Id. II The Court of Appeals’ decision in Barks v. Armontrout is, of course, also consistent with other recent Supreme Court decisions construing the long-standing exhaustion doctrine codified by the Congress in Section 2254(b) and (c) in 1948. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), in which the Court held that: The exhaustion doctrine existed long before its codification by Congress in 1948. In Ex parte Royall, 117 U.S. 241, 251 [6 S.Ct. 734, 740, 29 L.Ed. 868] (1886), this Court wrote that as a matter of comity, federal courts should not consider a claim in a habeas corpus petition until after the state courts have had an opportunity to act. The exhaustion doctrine is principally designed to protect the state courts’ role in the enforcement of federal law and prevent disruption of state judicial proceedings. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 490-491 [93 S.Ct. 1123, 1127-1128, 35 L.Ed.2d 443] (1973). Under our federal system, the federal and state “courts [are] equally bound to guard and protect rights secured by the Constitution.” Ex parte Royall, 117 U.S., at 251 [6 S.Ct. at 740]. 455 U.S. at 515, 518, 102 S.Ct. at 1201, 1203. See also Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984), in which the Court held that: “We agree with the Court of Appeals that the exhaustion rule requiring dismissal of mixed petitions, though to be strictly enforced, is not jurisdictional. See Rose v. Lundy, 455 U.S., at 515-520 [102 S.Ct. at 1201-1204].” And see finally, Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986), in which the Court again considered Section 2254(b) and held that: “The exhaustion doctrine seeks to afford the state courts a meaningful opportunity to consider allegations of legal error without interference from the federal judiciary. Rose v. Lundy, 455 U.S. 509, 515 [102 S.Ct. 1198, 1201, 71 L.Ed.2d 379] (1982).” 474 U.S. at 257, 106 S.Ct. at 620. Ill In light of the Attorney General of Missouri’s contention that a State, by promulgation of a rule of court, has power to impose a 90-day statute of limitations on federal habeas corpus actions, it is appropriate that Vasquez be given more detailed attention. The Court’s opinion in Vasquez is particularly important for the reason that under the factual circumstances of that case the petitioner, over a 16-year period of time, unsuccessfully “pursued appeals and collateral relief in the state courts, raising at every opportunity his equal protection challenge to the grand jury that indicted him.” Id. at 256, 106 S.Ct. at 619. The Court noted that “after the California Supreme Court foreclosed his final avenue of state relief in 1978, respondent filed a petition for a writ of habeas corpus in federal court, raising that same challenge.” Id. The District Court granted the writ; the Ninth Circuit affirmed; and the Supreme Court affirmed the Ninth Circuit. In part IV of the majority opinion in Vasquez, the Court stated that the dissenting opinion of Justice Powell, joined by Chief Justice Burger and Justice Rehnquist, “propounds a theory, not advanced by any party, which would condition the grant of relief upon the passage of time between a conviction and the filing of a petition for federal habeas corpus, depending upon the ability of a State to obtain a second conviction.” Id. at 264,106 S.Ct. at 624. The Court rejected the proposal made in Justice Powell’s dissent by holding that “Congress has not seen fit ... to provide the State with an additional defense to habeas corpus petitions based on the difficulties that it will face if forced to retry the defendant.” Id. at 265, 106 S.Ct. at 624. The Court significantly added that “despite many attempts in recent years, Congress has yet to create a statute of limitations for federal habeas corpus actions.” Id. The Court therefore concluded that it “should not lightly create a new judicial rule, in the guise of constitutional interpretation, to achieve the same end.” Id. Vasquez thus reflects the firm refusal of the Supreme Court of the United States to create, by judicial fiat, a statute of limitations for federal habeas corpus actions. If the Supreme Court of the United States does not believe that it has power, by judicial fiat, to create a statute of limitations for federal habeas corpus actions, it is indeed difficult to conceive that the Court would ever hold that a Supreme Court of a State could do so. APPENDIX B DISCUSSION OF VIEWS PUBLICLY STATED BY THE MISSOURI ATTORNEY GENERAL’S OFFICE IN REGARD TO THE COURT’S ALLEGED “REPUDIATION” OF FAY V NOIA I The response filed by the Attorney General in this case did not state any reason in support of the respondent’s contention that the Supreme Court of Missouri’s repeal of its former Rule 27.26 and its promulgation of new Rule 24.035, could somehow “preclude federal-court review of [petitioner’s Sixth Amendment] claims.” The response simply cites Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), without making any statement of what that case may have held. John M. Morris, Chief Counsel of the Criminal Division in the Missouri Attorney General’s Office, in an article entitled Post-conviction Practice Under “New Rule 27.-26”, 43 Journal of the Missouri Bar 435 (Oct.-Nov.1987), did express the views of a member of the Missouri Attorney General’s Office in regard to Wainwright v. Sykes. It is appropriate, in the absence of any other statement by a member of the Attorney General’s Office, to examine the view of the Chief Counsel of the Criminal Division of that office. For the preclusion contention baldly stated in the response filed in this case is apparently based on the views expressed in the article published by the Chief Counsel of the Criminal Division of the Attorney General’s Office. Mr. Morris’ article purported to summarize the Supreme Court of the United States’ 1963 landmark habeas corpus trilogy of Townsend v. Sain, Fay v. Noia, and Sanders v. United States by stating the two essential points conveyed by these decisions were “(1) that an inmate’s procedural default of a state remedy ... would not prevent federal habeas corpus review on the merits unless the state could prove that the inmate’s bypass of the state remedy was ‘deliberate’; and (2) that if the state courts did not provide the inmate with a full and fair hearing on the merits of his claims for whatever reason, that function would be taken over the federal courts in habeas corpus.” Mo.Bar J. at 436. Mr. Morris then stated that “two factors have combined to warrant a review and revision of Rule 27.26.” Id. The first factor stated by Mr. Morris, which need not be given detailed consideration, was that “although it has undoubtedly encouraged state-court resolution of inmates’ factual claims, Rule 27.26 has been anything but an unalloyed benefit to the criminal justice system.” Id. Mr. Morris then stated that the “second factor in the reconsideration of Rule 27.26 is the repudiation by the United States Supreme Court of the ‘deliberate bypass’ doctrine of Fay v. Noia, discussed above.” (Emphasis added). Id. at 437. Mr. Morris’ view of the Court’s “repudiation” of what he labeled as the “deliberate bypass” doctrine of Fay v. Noia was based on a citation of Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984); and Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Mr. Morris did not say anything about what he believed those cases held. Nor did he state any reason to support his view that those decisions reflected a “repeated” acknowledgment on the part of the Supreme Court of the United States that “states are legitimately entitled to require that challenges to criminal convictions be timely and properly raised in their courts.” (Emphasis added). Mo.Bar J. at 437. Mr. Morris did, however, state his view that if a State should place a 90-day statute of limitations on the availability of its State postconviction procedures, that the failure of a state prisoner to file a State postconviction motion within that limited period of time would effectively preclude an evidentiary hearing in federal court and, more important, preclude federal court ha-beas corpus consideration of any federal constitutional claims that a state prisoner might subsequently allege in a federal ha-beas corpus petition. Mr. Morris accurately stated that “[o]ne of the most crucial changes in the new rules is the limitation upon when a postcon-viction motion can be filed.” Id. Then, after directing attention to the 90-day statute of limitations provided in new Rule 24.035(d) and in new Rule 29.15(b), Mr. Morris stated that if a state prisoner fails to file his postconviction motion within the 90-day period of limitation, he will “have committed a procedural default which would bar subsequent review in federal habeas corpus.” Id. at 438. II The views expressed by Mr. Morris in regard to what he considered were the “two essential points conveyed” by the 1963 habeas corpus trilogy completely failed to recognize what Townsend v. Sain and Fay v. Noia actually held. Those cases construed the congressional intent of the Judiciary Act of 1867, presently codified as 28 U.S.C. § 2254, that expanded federal court habeas corpus jurisdiction to include persons being held in State custody under judgments allegedly obtained in violation of the Constitution and laws of the United States. Those cases held that Congress intended by the Act of 1867 to provide that state prisoners who properly invoke federal ha-beas corpus jurisdiction presently codified in 28 U.S.C. § 2254(a), are entitled to a full and fair plenary evidentiary hearing of their federal constitutional claims to be held in either a State or federal court. Most importantly, Townsend v. Sain established the standard under which a federal district court has a mandatory duty to conduct such an evidentiary hearing in the event the state prisoner had not been afforded a full and fair hearing of his federal claims in a State court. The first sentence in Townsend v. Sain stated that the Court would consider a petitioner’s “right to a plenary hearing in federal habeas corpus.” 372 U.S. 293 at 295, 83 S.Ct. 745 at 748, 9 L.Ed.2d 770 (1963). (Emphasis added). Certiorari was granted “to determine whether the courts below had correctly determined and applied the standards governing hearings in federal habeas corpus.” Id. at 297, 83 S.Ct. at 749. The familiar standard under which it is mandatory that a federal court exercise its power and jurisdiction to conduct the evi-dentiary hearing is stated as follows in Townsend v. Sain as follows: Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evi-dentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. 372 U.S. at 312, 83 S.Ct. at 757. Townsend v. Sain’s articulation of the standard under which a state prisoner is entitled to an evidentiary hearing in a federal district court was not in any way questioned in Justice Stewart’s dissenting opinion in that case. Justice Stewart expressly stated that “I have no quarrel with the Court’s statement of the basic governing principle which should determine whether a hearing is to be had in a federal habeas corpus proceeding.” Id. at 326, 83 S.Ct. at 764. Nor has that fundamental principle been questioned in any later Supreme Court opinion, including Wainwright v. Sykes and the progeny of that case. Ill Of equal, if not of greater importance for purposes of this case, Fay v. Noia made clear that questions concerning the application of the doctrine of exhaustion of State court remedies, presently codified in 28 U.S.C. § 2254(b) and (c), should not be confused with the question of whether a state prisoner has a right to an evidentiary hearing of his federal claims in federal court under the jurisdiction vested in a federal court by 28 U.S.C. § 2254(a). The State of New York, quite naturally argued in Fay v. Noia that the district court had properly dismissed the state prisoner’s federal petition for habeas corpus on exhaustion grounds and that the Second Circuit’s decision to the contrary should be reversed. That argument was firmly rejected by the Supreme Court. The first sentence in Fay v. Noia stated that this “case presents important questions touching the federal habeas corpus jurisdiction, 28 U.S.C. §§ 2241 et seq., in its relation to state criminal justice.” 372 U.S. at 394, 83 S.Ct. at 825. The second sentence made clear that the “narrow question is whether the respondent Noia may be granted federal habeas corpus relief ... after he was denied state post-conviction relief because the coerced confession claim [alleged in his federal habeas corpus petition] had been decided against him at the trial and Noia had allowed the time for a direct appeal to lapse without seeking review by a state appellate court.” Id. It is obvious that if the Court had held in Fay v. Noia that the district court had properly dismissed the federal habeas corpus petition on exhaus