1. The due process clause of the Fourteenth Amendment governs
any action of a State through its legislature, its courts, or its
executive officers, including action through its prosecuting
officers. P.
294 U. S.
112.
2. A criminal conviction procured by the state prosecuting
authorities solely by the use of perjured testimony known by them
to be perjured and knowingly used by them in order to procure the
conviction is without due process of law, and in violation of the
Fourteenth Amendment. P.
294 U. S.
112.
3. It is the duty of every State to provide corrective judicial
process for the relief of persons convicted and imprisoned for
crime without due process of law; and it is to be presumed that
this duty has been complied with. P.
294 U. S.
113.
4.
Semble that, in the courts of California, the writ
of habeas corpus is available for one who is deprived of his
liberty without due process
Page 294 U. S. 104
of law in violation of the Constitution of the United States. P.
294 U. S.
113.
5. Before this Court is asked to issue a writ of habeas corpus
in the case of a person held under a state commitment, recourse
should be had to whatever judicial remedy afforded by the State may
still remain open. P.
294 U. S.
115.
Leave to file denied.
On a motion for leave to file a petition for habeas corpus. The
case was heard upon the petition and upon a return made by the
State, in response to an order to show cause. The return did not
put in issue any of the facts alleged in the petition, but was in
the nature of a demurrer.
Page 294 U. S. 109
PER CURIAM.
Thomas J. Mooney asks leave to file petition for an original
writ of habeas corpus. He states that he is unlawfully restrained
of his liberty by the state of California under a commitment
pursuant to a conviction, in February, 1917, of murder in the first
degree and sentence of death subsequently commuted to life
imprisonment. He submits the record of proceedings set forth in his
petition for a writ of habeas corpus presented to the District
Page 294 U. S. 110
Court of the United States for the Northern District of
California and dismissed upon the ground that the petitioner had
not exhausted his legal remedies in the state court.
7 F. Supp.
385. Applications to the judges of the Circuit Court of Appeals
for the Ninth Circuit for allowance of an appeal to that court from
the judgment of dismissal have severally been denied.
In re
Mooney, 72 F.(2d) 503.
Petitioner charges that the state holds him in confinement
without due process of law in violation of the Fourteenth Amendment
of the Constitution of the United States. The grounds of his charge
are, in substance, that the sole basis of his conviction was
perjured testimony, which was knowingly used by the prosecuting
authorities in order to obtain that conviction, and also that these
authorities deliberately suppressed evidence which would have
impeached and refuted the testimony thus given against him. He
alleges that he could not be reasonable diligence have discovered
prior to the denial of his motion for a new trial, and his appeal
to the Supreme Court of the state, the evidence which was
subsequently developed and which proved the testimony against him
to have been perjured. Petitioner urges that the "knowing use" by
the statute of perjured testimony to obtain the conviction and the
deliberate suppression of evidence to impeach that testimony
constituted a denial of due process of law. Petitioner further
contends that the state deprives him of his liberty without due
process of law by its failure, in the circumstances set forth, to
provide any corrective judicial process by which a conviction so
obtained may be set aside.
In support of his serious charges, petitioner submits a
chronological history of the trials, appeals, and other judicial
proceedings connected with his conviction, and of his applications
for executive clemency. He sets forth the evidence which, as he
contends, proves the perjury
Page 294 U. S. 111
of the witnesses upon whose testimony he was convicted and the
knowledge on the part of the prosecuting authorities of that
perjury and the suppression by those authorities of impeaching
evidence at their command. He also submits what he insists are
admissions by the state that the testimony offered against him was
perjured, and that his conviction was unjustified. In amplification
of these statements, he asks leave to incorporate in his petition,
by reference, the voluminous details of the various proceedings as
they were presented with his petition to the District Court.
In response to our rule to show cause why leave to file the
petition should not be granted, the respondent has made return by
the Attorney General of the state. With this return, he submits an
appendix of exhibits setting forth the consent filed by the
Attorney General with the Supreme Court of the state on July 30,
1917, that the judgment of conviction be reversed and the cause
remanded for a new trial, and subsequent opinions of that court
upon the cases presented to it, the statements of Governors of the
state on applications for executive clemency made on behalf of this
petitioner and of one Billings (who had been jointly indicted with
petitioner and was separately tried and convicted), and the reports
of justices of the Supreme Court of the state, and communications
addressed by them, to the Governors of the state in connection with
such applications.
The return does not put in issue any of the facts alleged in the
petition. The return is in nature of a demurrer. It submits that
the petitioner "has failed to raise a Federal question, and that,
consequently, leave to file the petition should be denied."
Reviewing decisions relating to due process, the Attorney General
insists that the petitioner's argument is vitiated by the
fallacy
"that the acts or omissions of a prosecuting attorney can
ever,
Page 294 U. S. 112
in and by themselves, amount either to due process of law or to
a denial of due process of law."
The Attorney General states that, if the acts or omissions of a
prosecuting attorney
"have the effect of withholding from a defendant the notice
which must be accorded him under the due process clause, or if they
have the effect of preventing a defendant from presenting such
evidence as he possesses in defense of the accusation against him,
then such acts or omissions of the prosecuting attorney may be
regarded as resulting in a denial of due process of law."
And, "conversely," the Attorney General contends that
"it is only where an act or omission operates so as to deprive a
defendant of notice or so as to deprive him of an opportunity to
present such evidence as he has that it can be said that due
process of law has been denied."
Without attempting at this time to deal with the question at
length, we deem it sufficient for the present purpose to say that
we are unable to approve this narrow view of the requirement of due
process. That requirement, in safeguarding the liberty of the
citizen against deprivation through the action of the state,
embodies the fundamental conceptions of justice which lie at the
base of our civil and political institutions.
Hebert v.
Louisiana, 272 U. S. 312,
272 U. S. 316,
272 U. S. 317. It
is a requirement that cannot be deemed to be satisfied by mere
notice and hearing if a state has contrived a conviction through
the pretense of a trial which, in truth, is but used as a means of
depriving a defendant of liberty through a deliberate deception of
court and jury by the presentation of testimony known to be
perjured. Such a contrivance by a state to procure the conviction
and imprisonment of a defendant is an inconsistent with the
rudimentary demands of justice as is the obtaining of a like result
by intimidation. And the action of prosecuting officers on behalf
of the state, like that of administrative
Page 294 U. S. 113
officers in the execution of its laws, may constitute state
action within the purview of the Fourteenth Amendment. That
amendment governs any action of a state, "whether through its
legislature, through its courts, or through its executive or
administrative officers."
Carter v. Texas, 177 U.
S. 442,
177 U. S. 447;
Rogers v. Alabama, 192 U. S. 226,
192 U. S. 231;
Chicago, Burlington & Quincy R. Co. v. Chicago,
166 U. S. 226,
166 U. S. 233,
166 U. S.
234.
Reasoning from the premise that the petitioner has failed to
show a denial of due process in the circumstances set forth in his
petition, the Attorney General urges that the state was not
required to afford any corrective judicial process to remedy the
alleged wrong. The argument falls with the premise.
Frank v.
Mangum, 237 U. S. 309,
237 U. S. 335;
Moore v. Dempsey, 261 U. S. 86,
261 U. S. 90,
261 U. S.
91.
We are not satisfied, however, that the state of California has
failed to provide such corrective judicial process. The prerogative
writ of habeas corpus is available in that state. Constitution of
California, art. 1, § 5; article 6, § 4. No decision of the Supreme
Court of California has been brought to our attention holding that
the state court is without power to issue this historic remedial
process when it appears that one is deprived of his liberty without
due process of law in violation of the Constitution of the United
States. Upon the state courts, equally with the courts of the
Union, rests the obligation to guard and enforce every right
secured by that Constitution.
Robb v. Connolly,
111 U. S. 624,
111 U. S. 637.
In view of the dominant requirement of the Fourteenth Amendment, we
are not at liberty to assume that the state has denied to its court
jurisdiction to redress the prohibited wrong upon a proper showing
and in an appropriate proceeding for that purpose.
The decisions of the Supreme Court of California in relation to
petitioner's conviction have dealt with the questions
Page 294 U. S. 114
presented to that court within the limitations of particular
appellate procedure. When there was submitted to that court the
consent of the Attorney General to the reversal of the judgment
against petitioner and to the granting of a new trial, the court
pointed out that no motion had been made by the defendant, and that
his appeal was awaiting hearing.
People v. Mooney, 175
Cal. 666, 166 P. 999. When, again in advance of the hearing of his
appeal, the defendant made his motion solely upon the ground of the
Attorney General's consent, the court held that its jurisdiction on
appeal was limited to a determination whether there had been any
error of law in the proceedings of the trial court, and that the
court was confined to the record sent to it by the court below.
People v. Mooney, 176 Cal. 105, 167 P. 696. On the appeal,
the court, thus dealing with the record before it, found that the
verdict was supported by the testimony presented, and that no
ground appeared for reversal.
People v. Mooney, 177 Cal.
642, 171 P. 690. When, later, the defendant moved to set aside the
judgment, and sought a certificate of probable cause on his appeal
from an order denying his motion, the court held that the general
averments against the fairness of the trial were insufficient, but
the court did not place its denial of the application entirely upon
that ground. The court concluded that the proceeding by way of
motion to set aside the judgment after it had become final and a
motion for a new trial had been denied, and the time therefor had
expired, was "in the nature of an application for a writ coram
nobis, at common law." The court thought that such a writ did not
lie to correct any error in the judgment of the court, nor to
contradict or put in issue any fact directly passed upon and
affirmed by the judgment itself. The court, adopting the opinion of
the court below, concluded that the judgment could not be set aside
because it was predicated upon
Page 294 U. S. 115
perjured testimony or because material evidence was concealed or
suppressed, that the fraud in such a case was not such fraud as was
"extrinsic to the record," and that it was only in cases of
extrinsic fraud that the relief sought could be had. It was
apparently in relation to such an application that the court said
that the injured party was "without remedy."
People v.
Mooney, 178 Cal. 525, 174 P. 325, 326. And it was with respect
to that proceeding that the writ of certiorari was denied by this
Court.
Mooney v. State of California, 248 U.S. 579. The
subsequent communications from the justices of the Supreme Court in
connection with applications for executive clemency were of an
advisory character and were not judicial judgments under the
requirements of the Constitution of the United States.
We do not find that petitioner has applied to the state court
for a writ of habeas corpus upon the grounds stated in his petition
here. That corrective judicial process has not been invoked, and it
is not shown to be unavailable. Despite the many proceedings taken
on behalf of the petitioner, an application for the prerogative
writ now asserted to be peculiarly suited to the circumstances
disclosed by his petition has not been made to the state court.
Orderly procedure, governed by principles we have repeatedly
announced, requires that, before this Court is asked to issue a
writ of habeas corpus, in the case of a person held under a state
commitment, recourse should be had to whatever judicial remedy
afforded by the state may still remain open.
Davis v.
Burke, 179 U. S. 399,
179 U. S. 402;
Urquhart v. Brown, 205 U. S. 179,
205 U. S. 181,
205 U. S. 182;
United States ex rel. Kennedy v. Tyler, 269 U. S.
13,
269 U. S. 17.
See also Bryant v. Zimmerman, 278 U. S.
63,
278 U. S.
70.
Accordingly, leave to file the petition is denied, but without
prejudice.
Leave denied.