On October 14, 1965, a jury in King County, Washington, found Arthur Aiken and his co-defendant guilty of murder in the first degree for the robbery and slayings of three gas station attendants in separate incidents within one month. Each victim was shot several times. The jury imposed the death penalty. On direct appeal, Aiken advanced numerous challenges to his conviction. Following a remand to the trial court, the Washington Supreme Court affirmed the conviction and the sentence, 72 Wash.2d 306, 434 P.2d 10 (Wash.1967). On petition for certiorari to this Court, the conviction was vacated and the case remanded for reconsideration in light of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), 392 U.S. 652, 88 S.Ct. 2302, 20 L.Ed.2d 1357 (1968). After a second petition for certiorari, the conviction was again vacated and remanded for reconsideration in light of Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970), Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969), and Witherspoon v. Ill., 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), 403 U.S. 946, 91 S.Ct. 2283, 29 L.Ed.2d 856 (1971). The state trial court then resentenced Aiken to three consecutive life prison terms.

On July 26, 1979, fourteen years after his original conviction and eight years after his resentencing, Aiken filed this petition in the United States District Court for the Western District of Washington under 28 U.S.C. § 2254. He raised claims concerning pretrial publicity, the voluntariness of his confession, and the trial court's failure to grant severance— all claims that had been raised and decided a decade earlier in his first appeal to the Washington Supreme Court. All but the pretrial publicity issue had been presented in his original petition for review here.

On February 22, 1980, the District Court denied the habeas petition because Aiken had prejudiced the State by waiting more than five years before filing his petition, see Rule 9(a) of the Rules Governing Section 2254 Cases, 28 U.S.C. fol. § 2254.1 The Court of Appeals for the Ninth Circuit reversed, holding that prejudice may not be presumed. On remand, the State presented evidence that it could locate only 30 of the 87 witnesses who testified at trial and that 136 of the State's 138 exhibits were lost or destroyed. Finding that the evidence demonstrated that it would be difficult to retry Aiken should his petition for relief be granted, the District Court again dismissed the petition, concluding that prejudice as to retrial was also a ground for dismissal under Rule 9(a).2 The Court of Appeals for the Ninth Circuit again reversed, reasoning that Rule 9(a) allows consideration only of the State's difficulty in "respond[ing] to the habeas petition," and not consideration of the difficulty in retrying the petitioner. The District Court was ordered to entertain further proceedings pursuant to § 2254(d).

The privileges of the writ of habeas corpus are not unlimited. Rather the doctrine of laches should apply to habeas actions as it applies to other actions for relief. Alternatively, Rule 9(a) should be changed to bar relief when delay has prejudiced the State's ability to retry the petitioner.

The scope of habeas corpus as an avenue for repeated collateral attacks on criminal convictions has expanded enormously through decisions of this Court in the last three decades, see Stone v. Powell, 428 U.S. 465, 474-482, 96 S.Ct. 3037, 3042-46, 49 L.Ed.2d 1067 (1976). As the ability to attack criminal convictions collaterally has expanded, so too has the range of costs to the judicial system grown. As we noted last Term, collateral review undermines the interest in repose that underlies the principle of res judicata, degrades the importance of the trial, frustrates penological goals and drains the resources of the judicial system, Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 1570-1572, 71 L.Ed.2d 783 (1982). See also Stone v. Powell, 428 U.S., at 491 n. 31, 96 S.Ct., at 3051 n. 31; Brown v. Allen, 344 U.S. 443, 532-548, 73 S.Ct. 397, 423-31, 97 L.Ed. 469 (1953) (Jackson, J., concurring; Schneckloth v. Bustamonte, 412 U.S. 218, 259-266, 93 S.Ct. 2041, 2064-67, 36 L.Ed.2d 854 (1973) (POWELL, J., concurring). See Friendly, Is Innocence Irrelevant?, 38 U.Chi.L.Rev. 142, 146-148 (1970).

Claims presented by way of habeas corpus petitions many years after conviction impose especially heavy burdens on the prison system, on society and on the administration of justice. Our willingness to entertain these late claims tells prisoners that they need never reconcile themselves to what has happened: they need never "make peace" with society, learn a new way of life, or attempt to build a realistic future. Our society's constant willingness to reopen cases long closed tells the public that we have no confidence that the laws are administered justly. Because reprosecution becomes increasingly difficult, and sometimes impossible, as time from the original conviction elapses, such relief on the basis of stale claims often results in the permanent release of dangerous individuals without supervision of any sort.

Inmates exploit society's misplaced sentiment. When re-examination of the circumstances surrounding the detention comes late in the day, there is always a danger that process will be abused. A prisoner has incentive to "store up" technical challenges to his conviction and then press his claims seriatim when reconsideration of his allegations3 is difficult and when reprosecution is impossible because key witnesses and exhibits have disappeared. Cf. Del Vecchio v. United States, 556 F.2d 106, 109 and n. 6 (CA2 1977).

"One form of abuse said to exist is that of a prisoner, knowing he or she has a valid claim for relief, intentionally forgoing presenting that claim until evidence of guilt has dissipated so that reconviction would be impossible." ABA Standards for Criminal Justice, Postconviction Remedies, § 22-2.4 (2d ed. 1980).

I would allow summary dismissal of habeas petitions when the state can prove that the lapse of time has made reprosecution impossible. Exceptions should be limited to cases where the petitioner can make a colorable claim of innocence, demonstrate that a significant miscarriage of justice has occurred or show that his claim is based on grounds that, with the exercise of reasonable diligence, could not have been discovered earlier.