1. The petitions for habeas corpus in these cases sufficiently
alleged violations of petitioners' rights under the Federal
Constitution. P. 324 U. S.
2. This Court is unable to say that the refusal of the Supreme
Court of Illinois to entertain the petitions for habeas corpus in
these cases does not rest on an adequate nonfederal ground, and the
writs of certiorari herein must be dismissed. P. 324 U. S.
Page 324 U. S. 761
3. In view of the practice adopted by the Supreme Court of
Illinois, it follows that, whenever a petition originally filed in
that court for a writ of habeas corpus is denied without opinion or
other indication of the ground of its decision, and when the
petition relies on allegations of fact to raise federal questions,
it is unnecessary for the petitioner, in order to exhaust his state
remedies, to apply to this Court for certiorari to review the
judgment of the Supreme Court of Illinois. A denial of certiorari
by this Court in such circumstances does not bar an application to
a federal district court for the relief, grounded on federal
rights, which the Supreme Court of Illinois has denied. But any
other state remedies, if available, must be exhausted before any
application to the federal district court. P. 324 U. S.
4. A petition for certiorari to review a judgment of the Supreme
Court of Illinois denying an application for habeas corpus, which
must be denied here because the decision of that court appears to
rest on an adequate nonfederal ground, cannot be treated as a
petition to review a decision of a lower court of the State which
had denied an earlier application for habeas corpus, since the
petition in the lower state court is not before this Court and its
contents do not otherwise appear of record. P. 324 U. S.
Certiorari, 323 U.S. 704, to review judgments denying leave to
file petitions for habeas corpus.
In these cases, petitioners moved in the Supreme Court of
Illinois for leave to file their petitions for habeas corpus. Both
petitioners are in the custody of respondent, under sentences upon
state convictions. In each case, the Illinois court, without
requiring an answer from respondent, without appointing an attorney
to represent petitioners,
Page 324 U. S. 762
and without giving any reasons for its action, denied leave to
file the petitions. We granted certiorari, in forma
323 U.S. 704, because the petitions alleged facts
showing prima facie
violations of petitioners' rights
guaranteed by the Federal Constitution, and in order to consider
whether the Illinois affords corrective process for such violations
of constitutional right. [Footnote
] On application of the petitioners, counsel was appointed to
represent them in this Court.
Petitioner White, in No. 212, alleged in his petition for habeas
corpus that two indictments for "obtaining money and goods by means
of the confidence game" were returned against him in the state
Criminal Court; that the court, in advance of the trial, appointed
counsel to represent petitioner, but that the person so appointed
did not confer with petitioner until they came to court for the
trial; that then counsel refused to do anything for petitioner
unless petitioner had some money; that in particular petitioner
Page 324 U. S. 763
asked counsel to have one witness called in his behalf, but
counsel replied that "he did not have time, as he had a case in
another Court, and for me to plead guilty, as the Judge would not
give me a continuance." The petition for habeas corpus further
alleged that petitioner asked the trial judge "to continue the
proceedings so he could have time to call a witness, and confer
with his attorney;" that the judge then told petitioner "to keep
still, as his lawyer would do all the talking for him," and
"thereupon the attorney pleaded the petitioner guilty to two
indictments," on which he was given sentences of from one to ten
years, to be served concurrently, and that petitioner was thereby
denied the assistance of counsel in a criminal trial in violation
of the Fourteenth Amendment.
The petition for habeas corpus of petitioner Lutz, in No. 259,
alleged that he was tried and convicted for the crime of murder in
the state Circuit Court; that he was sentenced to life
imprisonment, and that his trial and conviction were without due
process in violation of the Fourteenth Amendment, in that his
conviction was obtained by the use of false testimony of two
witnesses for the state. It was alleged that the prosecuting
attorney induced and procured this testimony by bribery of the
witnesses, and that he introduced it at the trial with knowledge
that it was false. Attached to the petition are the affidavits of
the two witnesses in question, each stating that his testimony at
the trial was false and that he was bribed to give it by the
prosecuting attorney. The affidavits of two other persons, also
attached to the petition, tend to corroborate the affidavits of the
Since the Supreme Court of Illinois dismissed both petitions
without requiring respondent to answer, we must assume that the
petitioners' allegations are true. Williams v. Kaiser,
323 U. S. 471
323 U. S.
-474; House v. Mayo, 324 U. S.
. We have many times repeated that not only does due
process require that a defendant, on trial in a
Page 324 U. S. 764
state court upon a serious criminal charge and unable to defend
himself, shall have the benefit of counsel, compare Williams v.
Kaiser, supra, Tomkins v. Missouri, 323 U.
, and Rice v. Olsen, 324 U.
, with Betts v. Brady, 316 U.
, but that it is a denial of the accused's
constitutional right to a fair trial to force him to trial with
such expedition as to deprive him of the effective aid and
assistance of counsel. Powell v. Alabama, 287 U. S.
; Avery v. Alabama, 308 U.
; Ex parte Hawk, 321 U.
, 321 U. S.
-116; House v. Mayo, supra.
And we have
often pointed out that a conviction, secured by the use of perjured
testimony, known to be such by the prosecuting attorney, is a
denial of due process. Mooney v. Holohan, 294 U.
; Pyle v. Kansas, 317 U.
; cf. New York ex rel. Whitman v. Wilson,
318 U. S. 688
follows that the allegations of fact in the petitions are
sufficient to make out prima facie
cases of violation of
these constitutional rights of petitioners, sufficient to invoke
corrective process in some court, and in the federal District Court
if none is afforded by the state.
The availability of such a remedy in the federal District Court,
turning as it does on the exhaustion of state corrective processes,
see Mooney v. Holohan, supra; Ex parte Hawk, supra,
321 U. S.
-117, may also depend upon an application to this
Court to review the decision of the state court, and upon the
disposition of such an application here. Where the highest state
court in which a decision could be had considers and adjudicates
the merits of a petition for habeas corpus, state remedies,
including appellate review, are not exhausted so as to permit the
filing of a petition for habeas corpus in a federal District Court
unless the federal question involved is presented to this Court on
certiorari or appeal from the state court decision. Ex parte
Hawk, supra, 321 U. S.
If this Court denies certiorari after a state court decision on
the merits, or if it reviews the case on the merits, a federal
Page 324 U. S. 765
District Court will not usually reexamine on habeas corpus the
questions thus adjudicated. Ex parte Hawk, supra,
321 U. S. 118
But where the decision of the state court is that the remedy of
habeas corpus is not available under the state practice, or its
decision is based upon some other adequate nonfederal ground, it is
unnecessary for the petitioner to ask this Court for certiorari in
order to exhaust his state remedies, since we would lack
jurisdiction to review the decision of the state court, and the
denial of certiorari by this Court would not preclude a District
Court from inquiring into the federal question presented to, but
not considered by, the state court. See House v. Mayo,
supra, 324 U. S. 48
Hence, when this Court denies or dismisses certiorari in this type
of case without passing on the merits, it may, as in the present
case, be of importance to the administration of justice in the
federal District Courts that we indicate authoritatively for their
guidance the view we take of the availability of the state remedies
and the reasons for our decision.
On the argument of these cases in this Court, the Attorney
General of Illinois urged that the writs of certiorari be dismissed
for want of our jurisdiction to entertain them. It was argued,
that the record in each case, when read in the
light of the Illinois law, indicates that the judgment of the state
Supreme Court, denying leave to file did not decide any federal
question, or at least that the record fails to show that the
judgment does not rest on a state ground adequate to support it.
But the Supreme Court of Illinois has not stated the grounds for
its denial of the petitions for habeas corpus, and examination of
the record leaves us in doubt as to whether it decided the federal
questions presented by the petitions, or whether decision turned
upon state grounds.
In support of respondent's contention that the judgments of the
Illinois Supreme Court rest upon a nonfederal ground, our attention
is directed to the decision of that
Page 324 U. S. 766
court, rendered on March 22, 1945, in the case of People ex
rel. Swolley v. Ragen,
390 Ill. 106, 61 N.E.2d 248. There, as
here, the Supreme Court of Illinois denied leave to file a petition
for a writ of habeas corpus without requiring respondent to answer.
In denying the relief sought, the court made an "announcement" to
be filed with the record in the case with respect to its practice
upon original applications for habeas corpus in that court. In its
announcement, it declared: "Any petition which raises questions of
fact only will not be considered. This Court does not try questions
In that case, there was no answer or response to the petition,
and hence no issue of fact had been raised. Dismissal of the
petition might therefore involve a decision on the legal
sufficiency of the facts alleged in the petition. Since there were
no issues of fact at that stage of the proceeding, and since a
question of law -- the legal sufficiency of the petition -- is
always then present, we must take it, as the Attorney General of
Illinois states, that the court's announcement means that the
Supreme Court of the state will not entertain original applications
for habeas corpus save on a record which excludes on its face the
possibility of any trial in that court of an issue of fact.
] In the face of the
announcement, evidently intended to settle the practice upon
petitions for habeas corpus in that court, and in the absence of
any opinion indicating that decision in the present cases turned on
a federal question, we cannot say that the refusal to entertain the
petitions for habeas corpus in these cases does not rest on an
adequate nonfederal ground. For that reason, we
Page 324 U. S. 767
must dismiss these writs of certiorari. We do not reach the
alternative argument, made by the Attorney General, that
petitioners' remedy in the state courts is not habeas corpus, but
the statutory substitute for the writ of error coram
Ill.Civil Practice Act, § 72, Smith-Hurd Stats. c. 110,
§ 196, and that the two remedies are mutually exclusive.
It follows that, whenever the Illinois Supreme Court denies a
petition for the writ originally filed in that court, without
opinion or other indication of the ground of its decision, and when
the petition relies on allegations of fact to raise federal
questions, it is unnecessary for the petitioner, in order to
exhaust his state remedies, to apply to this Court for certiorari
to review the judgment of the Supreme Court of Illinois. A denial
of certiorari by this Court in such circumstances does not bar an
application to a federal District Court for the relief, grounded on
federal rights, which the Supreme Court of Illinois has denied. But
any other state remedies, if available, must be exhausted before
any application to the federal District Court. Ex parte Hawk,
supra, 321 U. S.
Petitioner White had made an earlier application for habeas
corpus to the Criminal Court of Cook County. On the argument,
counsel for petitioner White asked that, in the event it be decided
that the Illinois Supreme Court's decision was based upon an
adequate nonfederal ground, his petition for certiorari be treated
as seeking review of the decision of the Criminal Court. [Footnote 3
] We are unable to do
Page 324 U. S. 768
so, since we do not have before us the petition in the Criminal
Court, and its contents do not otherwise appear of record.
MR. JUSTICE ROBERTS concurs in the result.
* Together with No. 259, Lutz v. Ragen, Warden,
certiorari to the Supreme Court of Illinois.
In the last two terms of this Court, to April 21, 1945, 225
petitions for certiorari have been filed to review the denial by
the Illinois Supreme Court of leave to file petitions for habeas
corpus. From our examination of these applications, it appears that
in no case did the Supreme Court of Illinois depart from the
practice of denying leave to file without calling for a response
and without opinion. Many of these applications disclosed that the
petitioners had previously made application to one or more circuit
or criminal courts in Illinois, where in the large majority of
cases their petitions were denied without calling for a response or
appointing an attorney, and without giving any reason for the
denial other than the statement in some cases that the court lacked
jurisdiction. In a few of these lower court cases in which
attorneys were appointed to represent the petitioners, the
petitions were denied without further proceedings.
It also 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
denied the rights of prisoners to access to the courts unless they
procured counsel to represent them. See United States ex rel.
Foley v. Ragen, 52 F. Supp.
, 143 F.2d 774; United States ex rel. Bongiorno v.
Ragen, 54 F. Supp.
Apparently the practice of the Illinois Supreme Court was not
heretofore so restricted. Cf. People ex rel. Day v. Lewis,
376 Ill. 509, 34 N.E.2d 712, where the court called for a return to
a petition which alleged arbitrary action by state officers in
revoking petitioner's "good time" credit.
A denial of habeas corpus by the lower state courts in Illinois,
which have jurisdiction concurrent with that of the State Supreme
Court to issue habeas corpus, see
(Smith-Hurd) ch. 65, § 2; People v. Superior Court,
Ill. 186, 197, 84 N.E. 875, appears not to be reviewable by the
Illinois Supreme Court. See People ex rel. v. McAnally,
221 Ill. 66, 77 N.E. 544; People ex rel. v. Siman,
Ill. 28, 119 N.E. 940. For purposes of review here under § 237 of
the Judicial Code, 28 U.S.C. § 344, the denial of habeas corpus by
one of the lower courts of Illinois, not reviewable in any other
state court, is a decision by the highest court of the state in
which a decision could be had. Betts v. Brady,
316 U. S. 455
cf. Largent v. Texas, 318 U. S. 418
it follows from the lack of a remedy in the Illinois Supreme Court
in such a case, that an original application to that court for the
writ is not prerequisite to review here of the decision of the
lower state court. Cf. Tenner v. Dullea,
314 U.S. 692.