Mr. Chief Justice Vinson
delivered the opinion of the Court.
Each of the three petitioners is confined in an Illinois penitentiary following conviction of serious crimes. Petitioners' factual allegations need not be described, except to note petitioners' specific claims that confessions introduced at their trials were wrung from them by force and violence. Although such allegations set forth a prima facie violation of federal constitutional rights, there has been no determination, either by review of the trial record or by hearing of evidence, as to whether petitioners, in fact, are being imprisoned in violation of their rights under the Constitution.
Prior to the case of United States ex rel. Bongiorno v. Ragen, 54 F. Supp. 973, 975-976 (D. C. N. D. Ill. 1944), inmates of Illinois penitentiaries were denied the right of sending papers to the courts. Since that decision, many Illinois prisoners have presented claims of denial of constitutional rights and courts have sought to determine what, if any, is the post-conviction remedy available in Illinois to raise such claims. The problem has been here before. White v. Ragen, 324 U. S. 760 (1945); Woods v. Nierstheimer, 328 U. S. 211 (1946); Carter v. Illinois, 329 U. S. 173 (1946); Foster v. Illinois, 332 U. S. 134 (1947); Marino v. Ragen, 332 U. S. 561 (1947); Loftus v. Illinois, 334 U. S. 804 (1948), 337 U. S. 935 (1949). Finally, in Young v. Ragen, 337 U. S. 235 (1949), it became apparent that unless habeas corpus was available, the Illinois courts afforded no remedy for the eight prisoners then before the Court, including petitioner Sherman, now here in No. 375. On remand to the Criminal Court of Cook County, that court held that habeas corpus was not an- appropriate remedy, a holding that could not be reviewed by the Illinois Supreme Court under state practice.
Meanwhile, the Illinois General Assembly passed the Illinois Post-Conviction Hearing Act to provide a remedy for—
"[a]ny person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both . . .
Under this Act, the court in which conviction took place is authorized to grant relief in a proceeding initiated by the filing of a petition setting forth the respects in which a prisoner's constitutional rights were violated. The State may then answer or move to dismiss the petition qnd the trial court is authorized to receive oral testimony or documentary proof. A final judgment on a petition filed under the Act is made reviewable in the Illinois Supreme Court on writ of error.
In People v. Dale, 406 Ill. 238, 92 N. E. 2d 761 (1950), the Illinois Supreme Court sustained the Post-Conviction Hearing Act against attack on Illinois constitutional grounds. The Act was described as providing a new proceeding to afford the required inquiry into the constitutional integrity of a conviction. In the Dale case, the court also stated that the Act does not afford a rehearing of issues that had already been finally adjudicated, referring to cases where the Illinois Supreme Court had made such an adjudication.
In the three cases now before the Court, petitioners presented their factual allegations to the trial court in petitions filed under the Post-Conviction Hearing Act. The State's Attorney filed motions to dismiss on grounds of res judicata and failure to state a cause of action and the trial court dismissed each petition without conducting a hearing or otherwise determining the factual issues presented. The Illinois Supreme Court dismissed writ of error in each case without argument and without opinion, entering form orders providing that—
"after having examined and reviewed the petition and record in the post conviction hearing the same is found to disclose no violation or denial of any substantial constitutional rights of the petitioner under the constitution of the United States or of the constitution of the State of Illinois."
We granted certiorari, 341 U. S. 947, 342 U. S. 811 (1951).
The form order entered in these three cases has been entered in each of the twenty-five cases arising under the Post-Conviction Hearing Act that have reached this Court. Certiorari has been denied in many of these cases where petitioners alleged facts which, if true, presented no federal question. In several other cases, the trial court refused to grant- the State's motion to dismiss the post-conviction petition! Instead, the trial court obtained a transcript of the petitioner's trial, reviewed the entire record and found that there had'been no denial of substantial constitutional rights. However, in the cases now before the Court, the petitions filed in the trial court raised substantial federal claims, petitioners' factual allegations were not denied by the State's Attorney and the courts below have denied relief without inquiring into the verity of the allegations or whether petitioners had waived their claims.
Again in these cases, as in Young v. Ragen, supra, the Attorney General of Illinois concedes that petitioners have alleged facts showing an infringement of federal rights. Again he agrees that petitioners are or were entitled to a resolution of the factual issues raised. But,, again, the Attorney General explains the action of the state court as resting upon an adequate ground of state procedure. Citing certain language in People v. Dale, supra, he urges that the judgments below mean that the Post-Conviction Hearing Act does not provide an appropriate remedy for consideration of claims which were, or could have been, adjudicated at petitioners' trials.
Petitioners claim that they are held in custody in violation of the Federal Constitution in that coerced confessions were used to obtain their convictions.. Where, as hiere, a federal claim can be raised at the trial, it may be forfeited by failure to make a timely assertion of the claim. And, if a state provides a post-conviction corrective process, that process must be invoked and relief denied before a claim of denial of substantial federal rights may be entertained by a federal court. In inquiring whether any such corrective process was available to petitioners following their conviction, we note that under Illinois practice, writ of error can be used to bring the trial record, including a transcript of the-proceedings, before the Illinois Supreme Court for review. However, petitioners could, obtain review by writ of error only if a bill of exceptions or the report of proceedings at the trial had been submitted to the trial court within a limited period after conviction. While Illinois provides a transcript without cost to indigent defendants who have been sentenced to death, in the absence of some Illinois procedure to permit, other indigent defendants to secure an adequate record petitioners could utilize the writ of error procedure only by purchasing the transcript within the limited period following conviction. Since petitioners in these cases have taken paupers' oaths, the Attorney General of Illinois concedes that writ of error has not been available to review their claims, and we find nothing in this record to justify a different position. We do not consider here any independent question that might be raised by a state's failure to provide to an indigent defendant the transcript of his trial. It is sufficient for the purpose of this case that, if writ of error was not available to petitioners and if the Attorney General is correct in stating that the Post-Conviction Hearing Act does not provide an appropriate remedy in this type of case, there never has been, and is not now, any state post-conviction remedy available for determination of petitioners' claims that their federal rights have been infringed.
If their allegations are true and if their claims have not been waived at or after trial, petitioners are held in custody in violation of federal constitutional rights. Petitioners are entitled to their day in court for resolution of these issues. Where the state does not afford a remedy, a state prisoner may apply for a writ of habeas corpus in the United States District Court to secure protection of his federal rights.
The Attorney General of Illinois asks us to affirm the judgments below as resting upon an independent state ground even though he acknowledges that such action would permit petitioners to proceed in the District Court without more. But we do not lightly assume that a state has failed to provide any post-conviction remedy if a defendant is imprisoned in violation of constitutional rights. Accordingly, we consider it appropriate that the Illinois Supreme Court be permitted to provide definite answers to the questions of state law raised by these cases.
Unlike our action in Loftus v. Illinois, supra, however, we do not continue these cases on our docket pending further consideration by the Illinois Supreme Court. Instead, we vacate the judgments below and remand the cases to the Illinois Supreme Court for further proceedings. See Minnesota v. National Tea Co., 309 U. S. 551 (1940). On remand, petitioners should be advised whether their claims that constitutional rights were infringed at their trials may be determined under the Post-Conviction Hearing Act, or whether that Act does not provide an appropriate state remedy in these cases. If petitioners' claims may be resolvecTm a proceeding under the Act, either by an inquiry into the verity of their factual allegations or a finding that federal rights were waived during or after their trials, such resolution may proceed without further action by this Court. If Illinois does not provide an appropriate remedy for such a determination, petitioners may proceed without more in the United States District Court.
It is so ordered.
[For dissenting opinion of Mr. Justice Minton, see post, p. 116.]
Brown v. Mississippi, 297 U. S. 278 (1936).
Ill. Rev. Stat., 1951, c. 38, § 826-832.
In a number of recent cases in which other Illinois procedures were invoked, this Court has denied certiorari with the express statement that denial was without prejudice to petitioners' proceeding under the new Act. E. g., Walker v. Ragen, 338 U. S. 833 (1949).
E. g., People v. Supero, No. 1169, and People v. Gehant, No. 1146, both cases decided by the. Illinois Supreme Court on May 24, 1951. Certiorari was also denied in these cases. 342 U. S. 836, 840 (1951).
See Yakus v. United States, 321 U. S. 414, 444 (1944), and cases cited therein. As a result of the fact' that the transcripts of petitioners' trials are not included in the records ,in these post-conviction proceedings, note 8; infra, it cannot be known at this stage of the proceedings that petitioners waived all of their federal claims at their trials.
See Frank v. Mangum, 237 U. S. 309, 327 (1915). Petitioners do not allege that any coercion was used to bar objection to the use of the confessions or from having their convictions set aside on review.
Ill. Rev. Stat., 1951, c. 110, § 259.70A. At the time of petitioners' convictions, the period was 50 days, subject to extension on motion filed within that period. Recently, the period was extended to 100 days. Compare Ill. Rev. Stat., 1949, c. 110, § 259.70A.
Ill. Rev. Stat., 1951, c. 37, § 163b; id. c. 38, § 769a. Compare 28 U. S. C. (Supp. IV) § 1915, 2245, 2250. The transcripts of petitioners' trials have not been made part of the record in their post-conviction proceedings. Incomplete excerpts have been purchased, according to petitioners, out of their meager earnings while in prison. Those excerpts were attached as exhibits to the petitions filed in the trial court.
This does not, of course, foreclose the State from showing that any of the petitioners, in fact, could have obtained review of their claims by writ of error and from determining what, if any, effect such a showing would have on the availability of any other remedy under Illinois law. The State is also free to require more particularity in the allegations and assertions of these petitioners who have filed their papers pro se throughout these proceedings. Pyle v. Kansas, 317 U. S. 213, 216 (1942).
In rejecting the suggestion that these writs of certiorari be dismissed, we note that it is at least highly questionable whether, if the judgments below are permitted to stand, petitioners would be permitted j;o raise again in new proceedings any claims that were or could have been raised in these proceedings. III. Rev. Stat., 1951, c. 38, § 828, 832. See Jenner, The Illinois Post-Conviction Hearing Act, 9 F. R. D. 347, 358, 360 (1949).
28 U. S. C. (Supp. IV) § 2241 (c) (3), 2254; Hawk v. Olson, 326 U. S. 271, 276 (1945); House v. Mayo, 324 U. S. 42, 46 (1945); Ex parte Hawk, 321 U. S. 114, 118 (1944); Moore v. Dempsey, 261 U. S. 86 (1923).
Young v. Ragen, supra; Smith v. O'Grady, 312 U. S. 329, 331 (1941).