Ex parte Abernathy
320 U.S. 219 (1943)

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U.S. Supreme Court

Ex parte Abernathy, 320 U.S. 219 (1943)

Ex parte Abernathy

Decided October 18, 1943

320 U.S. 219

ON MOTION FOR LEAVE TO FILE PETITION

FOR WRIT OF HABEAS CORPUS

Syllabus

1. The exercise by this Court of the power conferred upon it to issue writs of habeas corpus (2 U.S.C. §§ 377, 451) in aid of its appellate jurisdiction is discretionary and, save in exceptional circumstances, the Court does not exercise the power where an adequate remedy may be had in a lower federal court or where, if the relief sought is from a judgment of a state court, the petitioner has not exhausted his remedies in the state courts. P. 320 U. S. 219.

2. Refusal of the writ, without more, is not an adjudication on the merits, and is to be taken as without prejudice to an application to any other court for the relief sought. P. 320 U. S. 220.

Applications denied.

PER CURIAM.

The applications are severally denied.

In these cases, petitioners invoke the exercise of the jurisdiction conferred on this Court by 28 U.S.C. sections 377,

Page 320 U. S. 220

451, to issue writs of habeas corpus in aid of its appellate jurisdiction. Cf. Ex parte Peru,318 U. S. 578, 318 U. S. 582-583. That jurisdiction is discretionary, id,318 U. S. 584; Bowen v. Johnston,306 U. S. 19, 306 U. S. 27, and this Court does not, save in exceptional circumstances, exercise it in cases where an adequate remedy may be had in a lower federal court, Ex parte Current, 314 U.S. 578; Ex parte Spaulding, 317 U.S. 593; Ex parte Hawk, 318 U.S. 746, or, if the relief sought is from the judgment of a state court, where the petitioner has not exhausted his remedies in the state courts, Mooney v. Holohan,294 U. S. 103, 294 U. S. 115; Ex parte Botwinski, 314 U.S. 586; Ex parte Davis, 317 U.S. 592; 318 U. S. 318 U.S. 412; Ex parte Williams, 317 U.S. 604. Refusal of the writ, without more is not an adjudication on the merits and is to be taken as without prejudice to an application to any other court for the relief sought.

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