A petition to the federal district court for a writ of habeas
corpus, by one confined under a state court sentence for burglary,
alleged that the trial court, without warning and over the
petitioner's protests, forced him to plead to the information
without the aid and advice of his counsel, whose presence he
requested. The district judge denied the petition and also denied a
certificate of probable cause for an appeal under 28 U.S.C. § 466.
The circuit court of appeals denied a timely application for
allowance of an appeal.
Held:
1. The case is reviewable here by certiorari not under § 240(a),
but under § 262 of the Judicial Code. P.
324 U. S.
44.
2. Review here by certiorari under § 262 extends not only to the
question whether the circuit court of appeals abused its discretion
in refusing to allow the appeal, but also to questions on the
merits sought to be raised by the appeal. P.
324 U. S.
44.
3. The petition for habeas corpus sufficiently alleged a denial
of the petitioner's constitutional right to a fair trial. P.
324 U. S.
46.
4. The decision of the district court denying habeas corpus on
the ground that the questions sought to be raised had been fairly
adjudicated by the state courts was unsupported, since the
basis
Page 324 U. S. 43
of the state court decisions relied on was, in each instance,
that the particular remedy sought was not one provided by state
law. P.
324 U. S.
47.
5. Where a state court adjudicates the merits of a state
prisoner's federal questions, and this Court either reviews or
declines to review its decision, a federal court will not
ordinarily reexamine on habeas corpus the questions thus
adjudicated. But that rule is inapplicable when the basis of the
state court's decision is that the particular remedy sought is one
which the state law does not provide. P.
324 U. S.
48.
6. The circuit court of appeals erred in not considering whether
the case was an appropriate one for a certificate of probable cause
under 28 U.S.C. § 466, and also in not issuing the certificate. P.
324 U. S.
48.
7. The motion for leave to file a petition for habeas corpus in
this Court is denied, and the cause is remanded to the district
court for further proceedings in conformity with the opinion of
this Court. P.
324 U. S.
48.
Certiorari granted; decisions below reversed.
PER CURIAM.
Petitioner is confined in the Florida state prison under
sentence for burglary. He filed a petition for habeas corpus in the
United States District Court for Southern Florida, which denied the
petition without calling for a return and without a hearing. The
district judge also denied a certificate of probable cause for an
appeal to the circuit court of appeals under 28 U.S.C. § 466.
Section 466 requires such a certificate for an appeal from a
judgment denying a petition for habeas corpus when the petition
complains of "detention . . . by virtue of process issued out of a
State court." Since the statute authorizes either the district
court or "a judge of the circuit court of appeals" to issue the
certificate, the district judge, in his order, stated that
petitioner might apply to a judge of the court of appeals for the
certificate and for the allowance of his appeal.
Petitioner thereupon filed with the circuit court of appeals a
timely application for an appeal
in forma pauperis,
addressed to the "Chief Justice" of that court. The application
Page 324 U. S. 44
was submitted to the court, and by it denied, 147 F.2d 606, on
the grounds that petitioner had not presented the certificate of
probable cause required by § 466, and that the district judge, on
the contrary, had found that no probable cause existed. The court
did not consider whether the case was one requiring it or a circuit
judge to make the certificate of probable cause.
The case comes here on a motion for leave to file a petition for
certiorari and a motion for leave to file a petition for habeas
corpus. The questions for decision are: (1) Whether this Court has
the power to issue a writ of certiorari; (2) if it has, whether it
may review the merits of the decision of the district court, and
(3) whether the district court erred in denying the petition for
habeas corpus on the grounds it assigned for its decision.
This Court cannot issue a writ of certiorari in the present case
under § 240(a) of the Judicial Code, 28 U.S.C. § 347(a).
Ferguson v. District of Columbia, 270 U.S. 633. Our
authority under that section extends only to cases "in a circuit
court of appeals, or in the [United States] Court of Appeals for
the District of Columbia." Here, the case was never "in" the court
of appeals, for want of a certificate of probable cause.
But § 262 of the Judicial Code, 28 U.S.C. § 377, authorizes this
Court
"to issue all writs, not specifically provided for by statute,
which may be necessary for the exercise of [its jurisdiction] and
agreeable to the usages and principles of law."
By virtue of that section, we may grant a writ of certiorari to
review the action of the court of appeals in declining to allow an
appeal to it.
In re 620 Church St. Corp., 299 U. S.
24,
299 U. S. 26,
and cases cited;
Holiday v. Johnston, 313 U.
S. 342,
313 U. S. 348,
note 2;
Wells v. United States, 318 U.
S. 257;
Steffler v. United States, 319 U. S.
38. And not only does our review extend to a
determination of whether the circuit court of appeals abused its
discretion in refusing to allow the appeal, but if so, it
extends
Page 324 U. S. 45
also to questions on the merits sought to be raised by the
appeal.
See Holiday v. Johnston, supra; Steffler v. United
States, supra. We hold that the same principles are applicable
here. Hence, we are brought to the question whether the district
court rightly denied the petition.
Petitioner alleges in his petition for habeas corpus and in
supplemental papers filed in the district court that, having
completed the service of two earlier sentences, he is now confined
in the Florida penitentiary solely by virtue of a twenty-year
sentence for burglary. The sentence was originally imposed in 1925
upon his plea of guilty to an information charging the offense. He
alleges that he was represented by his own attorney at the trial of
the two prior offenses; that his attorney then went to his office
in another city, and was to return on September 30 or October 1,
1925; that petitioner was brought before the court to be sentenced
for those offenses on September 11, 1925, when his attorney was
absent; that, without previous warning, an information was handed
up making the present charge of burglary. Petitioner alleges
further that he asked for time to communicate and consult with his
attorney, but that this request was denied; that he was forced to
plead guilty within a few minutes after receiving a copy of the
information; that, at that time, he was in his twenties,
uneducated, and a stranger in the town. The petition also alleged
that petitioner had "exhausted all legal remedies . . . to obtain
his freedom" in the state courts. In supplemental papers filed with
the district court, he made particular reference to the several
proceedings in which he had sought unsuccessfully to raise his
constitutional question in the state courts.
Since the petition for habeas corpus was denied without
requiring the respondent to answer and without a hearing, we must
assume that the petitioner's allegations are true.
Williams v.
Kaiser, 323 U. S. 471,
323 U. S.
473-474. From them, it appears that the trial court,
without warning and over
Page 324 U. S. 46
petitioner's protests, forced him to plead to the information
without the aid and advice of his counsel, whose presence he
requested. This was a denial of petitioner's constitutional right
to a fair trial, with the aid and assistance of counsel whom he had
retained.
Powell v. Alabama, 287 U. S.
45;
Ex parte Hawk, 321 U.
S. 114,
321 U. S.
115-116. We need not consider whether the state would
have been required to appoint counsel for petitioner on the facts
alleged in the petition.
Compare Betts v. Brady,
316 U. S. 455,
with Williams v. Kaiser, supra, and Tomkins v. Missouri,
323 U. S. 485. It
is enough that petitioner had his own attorney and was not afforded
a reasonable opportunity to consult with him. The fact that
petitioner pleaded guilty after the denial of his request for time
to consult with his counsel does not deprive him of his
constitutional right to counsel.
Williams v. Kaiser, supra;
Tomkins v. Missouri, supra.
In denying the petition, the district court did not consider
whether this deprivation of constitutional right is remediable in a
federal habeas corpus proceeding.
Cf. Ex parte Hawk,
supra. In
Waley v. Johnston, 316 U.
S. 101,
316 U. S.
104-105, and cases cited, we pointed out that the writ
is an appropriate remedy in the federal courts in
"those exceptional cases where the conviction has been in
disregard of the constitutional rights of the accused, and where
the writ is the only effective means of preserving his rights,"
at least where "the facts relied on are
dehors the
record and their effect on the judgment was not open to
consideration and review on appeal." Nor did the district court
reach the question whether petitioner had exhausted his state
remedies, which is prerequisite to relief by habeas corpus in the
federal court.
Ex parte Hawk, supra, 321 U. S. 117.
We find it unnecessary to pass on either question in the first
instance, or to consider whether the district court should have
called for an answer and set the case for a hearing. We express no
opinion upon these
Page 324 U. S. 47
questions, since the district court rested its decision wholly
on different grounds, which we alone consider here.
The district court was of the opinion that
"petitioner has had a full, complete, and competent
consideration and decision in the Supreme Court of Florida of all
the various matters here sought again to be presented."
The district court had reference to the decisions of the Florida
Supreme Court referred to by petitioner in his papers filed with
the district court. They were:
House v. State, 127 Fla.
145, 172 So. 734, a writ of error from petitioner's conviction;
* House v.
State, 130 Fla. 400, 177 So. 705, an application for leave to
file a
coram nobis proceeding, and the denial by the
Florida Supreme Court without opinion of three petitions for habeas
corpus filed by petitioner. By each form of proceeding, petitioner
attempted to raise the questions he now raises in the present
petition, but, in each instance, so far as appears, the Florida
Supreme Court, without considering the merits of petitioner's
contentions and without affording a hearing on the merits, denied
relief to petitioner on the ground that the particular remedy
sought was not the appropriate one under Florida law to raise those
contentions.
See House v. State, 127 Fla. 145, 148, 172
So. 734;
House v. State, 130 Fla. 400, 406, 177 So. 705;
cf. Skipper v. Schumacher, 124 Fla. 384, 401-404, 169 So.
58.
The district court also referred to a denial by this Court of a
petition for certiorari, filed here after the denial by the Florida
Supreme Court of one of the applications for habeas corpus.
See
House v. Mayo, 322 U.S. 710. The
Page 324 U. S. 48
district court thought that this was an expression "of the
opinion that no meritorious question is presented by the matters of
which petitioner here complains." But, as we have often said, a
denial of certiorari by this Court imports no expression of opinion
upon the merits of a case.
See Hamilton-Brown Shoe Co. v. Wolf
Brothers, 240 U. S. 251,
240 U. S. 258;
Ohio ex rel. Seney v. Swift & Co., 260 U.
S. 146,
260 U. S. 151;
United States v. Carver, 260 U. S. 482,
260 U. S. 490;
Atlantic Coast Line R. Co. v. Powe, 283 U.
S. 401,
283 U. S.
403-404. It is true that, where a state court has
considered and adjudicated the merits of a petitioner's
contentions, and this Court has either reviewed or declined to
review the state court's decision, a federal court will not
ordinarily reexamine upon writ of habeas corpus the questions thus
adjudicated.
See Ex parte Hawk, supra, 321 U. S. 118.
But that rule is inapplicable where, as here, the basis of the
state court decision is that the particular remedy sought is not
one allowed by state law, for, in such a case, this Court lacks
jurisdiction to review the decision.
Woolsey v. Best,
299 U. S. 1,
299 U. S. 2;
New York ex rel. Whitman v. Wilson, 318 U.
S. 688,
318 U. S. 690;
Williams v. Kaiser, supra, 323 U. S. 473,
323 U. S.
476-479.
The decision of the district court is thus not supported by the
grounds assigned for it, and should have been reversed by the court
of appeals. And the judges of that court erred in not considering
whether the case was an appropriate one for a certificate of
probable cause, as they were authorized to do by 28 U.S.C. § 466.
We think that they also erred in not issuing the certificate.
The motions for leave to proceed
in forma pauperis and
for leave to file the petition for certiorari are granted. The
petition for certiorari is granted, the order of the court of
appeals and judgment of the district court are reversed, and the
cause is remanded to the district court for further proceedings in
conformity to this opinion.
Page 324 U. S. 49
The motion for leave to file a petition for habeas corpus in
this court is denied.
Ex parte Abernathy, 320 U.
S. 219;
Ex parte Hawk, supra.
So ordered.
Motions denied in part and granted in part; reversed and
remanded.
MR. JUSTICE ROBERTS is of opinion that the writ of certiorari
should be denied.
* In a habeas corpus proceeding, the Florida Supreme Court
decided that the judgment against petitioner, entered in 1927, was
defective in that it did not contain an adjudication of guilt.
State ex rel. House v. Mayo, 122 Fla. 23, 164 So. 673. The
court remanded petitioner to the trial court for the imposition of
a proper sentence. On February 22, 1936, the trial court
resentenced petitioner to the same term originally imposed. The
opinion referred to in the text, 127 Fla. 145, 172 So. 734, was on
a writ of error from petitioner's conviction, taken after the
resentence in 1936.