1. Since it does not appear that the applicant for habeas
corpus, confined under sentence of a state court, has exhausted his
remedies under the state law, the application is denied without
prejudice. P.
321 U. S.
118.
2. Where resort to state court remedies has failed to afford to
a petitioner for habeas corpus a full and fair adjudication of the
federal questions raised, either because the State affords no
remedy or because, in the particular case, the remedy afforded
proves in practice unavailable or seriously inadequate, a federal
court should entertain the petition; but, in such case, the
petitioner should proceed in the federal district court before
resorting to this Court. P.
321 U. S.
118.
3. The statement often made that federal courts will interfere
with the administration of justice in the state courts only "in
rare cases where exceptional circumstances of peculiar urgency are
shown to exist" is inapplicable where the petitioner for habeas
corpus has exhausted his state remedies and makes a substantial
showing of denial of federal right. P.
321 U. S.
117.
Application denied.
PER CURIAM.
This case comes here on petitioner's application for leave to
file in this Court his petition for writ of habeas corpus.
Petitioner is confined in the Nebraska State Penitentiary under
sentence for murder imposed by the Nebraska District Court.
His present proceeding has been prefaced by several earlier
applications to both state and federal courts. His petition for
habeas corpus was denied without a hearing
Page 321 U. S. 115
by the Nebraska District Court, whose decision was affirmed by
the Nebraska Supreme Court,
Hawk v. O'Grady, 137 Neb. 639,
290 N.W. 911. This Court denied certiorari, 311 U.S. 645.
Petitioner then filed in the United States District Court for
Nebraska a petition for habeas corpus, alleging matters not
previously brought to the attention of the state courts. This
application was denied without a hearing, and the Circuit Court of
Appeals for the Eighth Circuit affirmed on the ground that
petitioner had not exhausted his state remedies,
Hawk v.
Olson, 130 F.2d 910. We denied certiorari. 317 U.S. 697.
Petitioner then urged his present contentions upon the Nebraska
Supreme Court in a petition for writ of habeas corpus which that
Court denied without opinion. We denied his petition for habeas
corpus upon like allegations, but without prejudice to presentation
of the matters alleged to the United States District Court,
Ex
parte Hawk, 318 U.S. 746.
Petitioner accordingly renewed his petition for writ of habeas
corpus to the United States District Court for Nebraska and filed a
like petition with the senior Circuit Judge for the Eighth Circuit;
both petitions have been denied, and leave to appeal to the Circuit
Court of Appeals for the Eighth Circuit has been denied by the
senior Circuit Judge of that circuit. Petitioner thereupon filed
the present application in this Court.
In the application now before us and in those filed with the
United States District Court and the senior Circuit Judge of the
Eighth Circuit, petitioner alleges, among other things, that the
state court forced him into trial for a capital offense,
Neb.Comp.Stat. ยง 28-401, with such expedition as to deprive him of
the effective assistance of counsel, guaranteed by the due process
clause of the Fourteenth Amendment,
Powell v. Alabama,
287 U. S. 45;
see Smith v. O'Grady, 312 U. S. 329;
compare Betts v. Brady, 316 U. S. 455, and
that his conviction was based in part on the introduction
Page 321 U. S. 116
at the trial of evidence known by the prosecution to be
perjured,
Mooney v. Holohan, 294 U.
S. 103.
From our examination of the papers presented to us, we cannot
say that he is not entitled to a hearing on these contentions,
Walker v. Johnston, 312 U. S. 275,
312 U. S.
284-287;
Holiday v. Johnston, 313 U.
S. 342,
313 U. S. 350;
Waley v. Johnston, 316 U. S. 101,
316 U. S.
104-105;
Cochran v. Kansas, 316 U.
S. 255,
316 U. S. 258.
But, as was pointed out by the District Court and Circuit Judge,
petitioner has not yet shown that he has exhausted the remedies
available to him in the state courts, and he is therefore not at
this time entitled to relief in a federal court or by a federal
judge.
So far as appears, petitioner's present contentions have been
presented to the state courts only in an application for habeas
corpus filed in the Nebraska Supreme Court, which it denied without
opinion. From other opinions of that court, it appears that it does
not usually entertain original petitions for habeas corpus, but
remits the petitioner to an application to the appropriate district
court of the state, from whose decision an appeal lies to the state
Supreme Court,
Williams v. Olson, 8 N.W.2d 830, 831;
see In re White, 33 Neb. 812, 814, 815, 51 N.W. 287. From
that court, the cause may be brought here for review if an
appropriate federal question is properly presented.
Of this remedy in the state court petitioner has not availed
himself. Moreover, Nebraska recognizes and employs the common law
writ of error
coram nobis which, in circumstances in which
habeas corpus will not lie, may be issued by the trial court as a
remedy for infringement of constitutional right of the defendant in
the course of the trial,
Carlsen v. State, 129 Neb. 84,
94-98, 261 N.W. 339. Until that remedy has been sought without
avail, we cannot say that petitioner's state remedies have been
exhausted.
Ordinarily an application for habeas corpus by one detained
under a state court judgment of conviction for
Page 321 U. S. 117
crime will be entertained by a federal court only after all
state remedies available, including all appellate remedies in the
state courts and in this Court by appeal or writ of certiorari,
have been exhausted.
Tinsley v. Anderson, 171 U.
S. 101,
171 U. S.
104-105;
Urquhart v. Brown, 205 U.
S. 179;
United States ex rel. Kennedy v. Tyler,
269 U. S. 13;
Mooney v. Holohan, supra, 294 U. S. 115;
Ex parte Abernathy, 320 U. S. 219. And
where those remedies have been exhausted, this Court will not
ordinarily entertain an application for the writ before it has been
sought and denied in a district court or denied by a circuit or
district judge.
Ex parte Hawk, supra; Ex parte Abernathy,
supra.
The denial of relief to petitioner by the federal courts and
judges in this, as in a number of other, cases appears to have been
on the ground that it is a principle controlling all habeas corpus
petitions to the federal courts that those courts will interfere
with the administration of justice in the state courts only "in
rare cases where exceptional circumstances of peculiar urgency are
shown to exist."
See In re Anderson, 117 F.2d 939, 940;
In re Miller, 126 F.2d 826, 827;
Kelly v. Ragen,
129 F.2d 811, 814, 815;
Hawk v. Olson, supra, 911-913;
Marsino v. Hogsett, 37 F.2d 409, 414;
United States ex
rel. Foley v. Ragen, 52 F. Supp.
265, 269, 270;
cf. United States ex rel. Murphy v.
Murphy, 108 F.2d 861, 862. To this some courts have added the
intimation that, when the writ is sought by one held under a state
conviction, the only remedy ordinarily to be had in the federal
court is by way of application to this Court for habeas corpus.
Ex parte Jefferson, 106 F.2d 471, 472;
Kramer v.
Nevada, 122 F.2d 417, 419;
In re Miller, supra; Hawk v.
Olson, supra, 913;
cf. Kelly v. Ragen, supra,
814.
The statement that the writ is available in the federal courts
only "in rare cases" presenting "exceptional circumstances of
peculiar urgency," often quoted from the opinion of this Court in
United States ex rel. Kennedy v. Tyler,
Page 321 U. S. 118
supra, 269 U. S. 17,
was made in a case in which the petitioner had not exhausted his
state remedies, and is inapplicable to one in which the petitioner
has exhausted his state remedies, and in which he makes a
substantial showing of a denial of federal right.
Where the state courts have considered and adjudicated the
merits of his 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.
Salinger v. Loisel, 265 U.
S. 224,
265 U. S.
230-232. But where resort to state court remedies has
failed to afford a full and fair adjudication of the federal
contentions raised, either because the state affords no remedy,
see Mooney v. Holohan, supra, 115, or because, in the
particular case, the remedy afforded by state law proves in
practice unavailable or seriously inadequate,
cf. Moore v.
Dempsey, 261 U. S. 86;
Ex parte Davis, 318 U. S. 412, a
federal court should entertain his petition for habeas corpus, else
he would be remediless. In such a case, he should proceed in the
federal district court before resorting to this Court by petition
for habeas corpus.
As petitioner does not appear to have exhausted his state
remedies, his application will be denied without prejudice to his
resort to the procedure indicated as appropriate by this
opinion.
Application denied.