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Certiorari and Habeas Corpus: the Omitc Y Comedy Earl Pollock

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Certiorari and Habeas Corpus: the Omitc Y Comedy Earl Pollock Journal of Criminal Law and Criminology Volume 42 Article 7 Issue 3 September-October Fall 1951 Certiorari and Habeas Corpus: The omitC y Comedy Earl Pollock Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Earl Pollock, Certiorari and Habeas Corpus: The omitC y Comedy, 42 J. Crim. L. Criminology & Police Sci. 356 (1951-1952) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. EARL POLLOCK [Vol. 42 CERTIORARI AND HABEAS CORPUS: THE COMITY COMEDY Earl Pollock Protection of the individual from state denial of due process requires that federal courts be empowered to intervene in state criminal matters through the writ of habeas corpus.' On the other hand, comity in our dual judiciary system requires that this power be exercised sparingly and with utmost self- restraint.2 A balance of these conflicting interests--due process versus comity -has led to the doctrine3 that, absent "exceptional circumstances of peculiar urgency, "4 a district court will not entertain a state prisoner's application for habeas corpus until all available state remedies have been exhausted. 5 The exhaustion doctrine was considerably expanded by two dicta appearing in Ex Parte Hawk,6 a 1944 Supreme Court per curiam opinion. Each raised an issue that has been a bone of contention in the federal courts ever since: 1) is a petition for certiorari to the Supreme Court also a prerequisite? 2) and if so, what is the effect of the denial of certiorari on the prisoner's subsequent application for habeas corpus? According to the first Hawk dictum, raising the federal question in only state tribunals was insufficient to establish eligibility for the federal remedy. The prisoner must also petition the United States Supreme Court for 1. 28 U.S.C. §2241 (Supp. III 1950). For sketch of expanding use of the writ in recent years, see Holtzoff, Collateral Review of Convictions in Federal Courts, 25 B.U.L. REv. 26 (1945). For concise history and general discussion, see Longsdorf, Habeas Corpus: A Protean Writ and Remedy, 8 F.R.D. 179 (1949) Note, 61 HARv. L. REV. 657 (1948). 2. Baker v. Grice, 169 U.S. 284, 291 (1898); Covell v. Heyman, 111 U.S. 176, 182 (1884). See Warren, Federal and State Court Interference, 43 HARv. L. REv. 345 (1930). 3. See Ex Parte Hawk, 321 U.S. 114 (1944), and Mooney v. Holohon, 294 U.S. 103 (1935). Now codified as 28 U.S.C. §2254 (Supp. III 1950) : "An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has ex- hausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. An appli- cant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." 4. United States ex rel. Kennedy v. Tyler, 269 U.S. 13 (1925). An example is Moore v. Dempsey, 261 U.S. 86 (1923), involving a mob-dominated trial. Ex- haustion of remedies is similarly unnecessary in a situation where a state attempts to interfere improperly with the federal government. E.g., In re Neagle, 135 U.S. 1 (1889) (federal officer held in state custody for homicide committed in scope of duty). See Mr. Justice Reed dissenting in Wade v. Mayo, 334 U.S. 672, 692-693 (1948). The exhaustion requirement is of course satisfied if the state provides no remedy. Young v. Ragen, 337 U.S. 235 (1949); Hawk v. Olson, 326 U.S. 271 (1945). 5. Thus resort to federal habeas corpus will not be allowed unless state courts have adjudicated the precise point, e.g., Ex Parte Williams, 317 U.S. 604 (1943), in the light of the latest controlling decision, e.g., Mackey v. Kaiser, 323 U.S. 683 (1945), despite the apparent futility of applying again for state relief, e.g., Mooney v. Holohon, 294 U.S. 103 (1935). 6. 321 U.S. 114 (1944). The Court affirmed the denial of the writ by lower federal courts, on the ground that Nebraska state remedies could not be deemed exhausted until coram nobis had been attempted. Statements relating to the require- ment that the prisoner must also apply to the Supreme Court for certiorari and the effect of its denial were irrelevant to the holding and consequently obiter dicta. For history of the extensive Hawk litigation, see Note, The Judicial Obstacle Course, 29 Nm. L. Rav. 445 (1950). 1951] CERTIORARI AND HABEAS CORPUS certiorari 7 to review the highest state court decision.8 The extra step in the exhaustion process could be skipped only if the state decision might be deemed to rest on some adequate non-federal ground. In that event, the prisoner could apply directly to the district courts since the Supreme Court would lack jurisdiction to grant certiorari.9 The general rule and its lone exception governed federal habeas corpus practice' o until Wade v. Mayo," in 1948. The Court there rejected the strict requirement of the extra step as often "futile procedure," but con- ceded that the prisoner's failure to apply for certiorari might be a relevant consideration2 for the district court in determining whether to take jurisdic- tion.' The authority of Wade v. Mayo was destined to be short-lived, however. Only two years later it was impliedly over-ruled by Darr v. Bur- ford,'8 which re-established the mandatory certiorari rule in all its force and vigor. Basic to Darr v. Burford is a lurking fear of disturbing delicate federal-state relations by permitting a single judge of the lowest federal court to upset judgments of the highest state court.14 To avoid such em- barrassing reversals, the Court insisted, it should be given the "first crack" at passing upon charges of state violations of federal constitutional rights.'5 If the frst Hawk dictum makes federal habeas corpus relief more difficult for the state prisoner, the second Hawk dictum would make such relief nearly 7. Cases come to the Supreme Court by two main routes: appeal and certiorari. Appeal is theoretically of right, while certiorari is totally discretionary. ROBERTSON AND KIRKHAM, JURISDICTION OF THE SUPREME COURT OF THE tUNITED STATES (2d ed., Wolfson and Kurland, 1951) is the most comprehensive work on this subject. See also Boskey, Mechanics of the Supreme Court's CertiorariJurisdiction, 46 COL. L. REv. 255 (1946). 8. Ex Parte Hawk, 321 U.S. 114, 117 (1944). Five cases were cited in support of this dictum. Two are authority only for the doctrine of exhaustion of remedies available in state courts. Ex Parte Abernathy, 320 U.S. 219 (1943); Mooney v. Holohon, 294 U.S. 103 (1935). The other three required that a petitioner be "put to his writ of error." United States ex rel. Kennedy v. Tyler, 269 U.S. 13 (1925); Urquhart v. Brown, 205 U.S. 179 (1907); Tinsley v. Anderson, 171 US 101 (1898). But there is considerable difference between the now-obsolete writ of error and a writ of certiorari. A writ of error was a writ of right and would be granted automatically. A writ of certiorari, on the other hand, is a writ of grace and is wholly discretionary with the Supreme Court. 9. Ex Parte Hawk, 321 U. S. 114, 118 (1944). Cf. Herb v. Pitcairn, 324 U.S. 117, 125-126 (1945); Williams v. Kaiser, 323 U.S. 471, 477-8 (1945). ROBERTSON AND KIRKHAM, op. cit. supra note 7, at 163. 10. The Supreme Court caused copies of the Hawk opinion to be distributed among inmates of state penitentiaries. See Darr v. Burford, 339 U.S. 200, 211 (1950). The dictum was approved in House v. Mayo, 324 U.S. 42 (1945), and White v. Ragen, 324 U.S. 760 (1945). The result was to flood the Supreme Court with prison-drawn petitions for certiorari from state convicts. ROBERTSON AND KIRKHAM, op. cit. supra note 7, at 749. 11. 334 U.S. 672 (1948). 12. 334 U.S. 672, 681 (1948). 13. 339 U.S. 200, 210 (1950): "Whatever deviation Wade may imply from the established rule will be corrected by this decision." 14. 339 U.S. 200, 206-207 (1950). 15. 339 U.S. 200, 216 (1950). The Court rationalized that Congress gave-this policy legislative sanction by enacting Section 2254 of the 1948 revision of the Judicial Code. See note 3 supra. This appears to have been the intention of the Judicial Conference committee that drafted the section. See Parker, Limiting the Abuse of Habeas Corpus, 8 F.R.D. 171, 176-177 (1949). But this statute states only the undoubted rule that a state prisoner must exhaust "the remedies available in the courts of the State." (Italics added.) Unless the Supreme Court of the United States could somehow be placed in the category of "courts of the State," there is nothing in the statute itself to indicate that certiorari is also a prerequisite step.
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