STONEBREAKER v. SMYTH, Superintendent of Virginia State Penitentiary, 163 F.2d 498

PARKER, Circuit Judge. This is an appeal from an order discharging a writ of habeas corpus and dismissing the petition for the writ. Petitioner is incarcerated in the Virginia State Penitentiary under three sentences of the Corporation Court of the City of Newport News, Virginia, imposed in the year 1931 upon pleas of guilty by petitioner to three indictments charging armed robbery.

In 1943 petitioner by petition for writ of habeas corpus in the courts of Virginia attacked the judgment and sentences under which he was imprisoned, on the ground that he had been denied the due process of law guaranteed by the 14th Amendment of the Federal Constitution in the proceedings in which they were entered.

He alleged, as the basis of this contention, that at the time he was sentenced he was a minor twenty years of age, ignorant and uninformed as to his right to counsel, and incapable of representing himself, and that he had pleaded guilty because of a confession which had been unfairly obtained from him. The petition was heard upon its merits by the Corporation Court of the City of Newport News, evidence was taken and the facts upon which petitioner relied were fully developed.

The Corporation Court of Newport News, after full hearing and consideration, discharged the writ and dismissed the petition, whereupon petitioner applied to the Supreme Court of Appeals of Virginia for a writ of error, which was denied by that court. Thereupon, petitioner applied to the United States Supreme Court for writ of certiora-ri; and this was denied on October 16, 1944. Stonebreaker v. Smyth, 323 U.S. 754, 65 S.Ct. 81, 89 L.Ed. 603.

After a delay of over two years, during which the Supreme Court had decided a number of cases on right to counsel and the effect of pleas of guilty by prisoners without counsel, petitioner, on January 13, 1947, filed the petition in the court below relying upon the identical grounds urged in the state court under the 14th Amendment and attaching to his petition a transcript of the proceedings in that court.

The District Judge dismissed the petition on the ground that the matter had been fully heard on habeas corpus in the state courts and that the Supreme Court of the United States had denied certiorari, basing his decision on White v. Ragen 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348. The petitioner has appealed, his principal contention on appeal being, that because of recent Supreme Court decisions, which he thinks support his position on the merits, his is not such a case as the courts “will not usually re-examine,” but that it should be re-examined and relief granted.

We are confronted at the outset with the fact that the case presented by petitioner is precisely the same as that in which relief was denied by the Virginia courts and in which certiorari was denied by the Supreme Court of the United States. The rights of petitioner were fully presented in that case and the Virginia courts had full power to grant the relief asked, had they thought petitioner entitled to it.

The facts were fully before the Supreme Court of the United States on certiorari; and proper respect for that court compels the conclusion that if it had thought that the record showed a denial of petitioner’s constitutional rights, certiorari would have been granted and petitioner would have been afforded relief.

While action of the Virginia courts and the denial of certiorari by the Supreme Court were not binding on the principle of res judicata, they were matters entitled to respectful consideration by the court below; and in the absence of some most unusual situation, they were sufficient reason for that court to deny a further writ of habeas corpus.

It would be intolerable that a federal district court should release a prisoner on habeas corpus after the state courts have refused him relief in precisely the same case on a similar writ and the United States Supreme Court has refused to review their action on certiorari. This would be, in effect, to permit a federal district court to review the Supreme Court of the United States as well as the highest court of the state. The rule in such cases was stated in the case of White v.

Ragen 324 U.S. 760, 764, 765, 65 S.Ct. 978, 981, 89 L.Ed. 1348, relied on by the court below, as follows: “If this Court denies certiorari after a state court decision on the merits, or if it reviews the case on the merits, a federal District Court will not usually re-examine on habeas corpus the questions thus adjudicated.

Ex parte Hawk, supra, 321 U.S. [at page] 118, [64 S.Ct. 448, 88 L.Ed. 572].” The citation of Ex parte Hawk shows what the court had in mind in the use of the words “will not usually re-examine” in the statement just quoted; for the court had pointed out in that case the sort of cases in which the district court would be justified in granting habeas corpus notwithstanding the denial of certiorari in cases where the state court had refused to grant relief.

These were cases where resort to state court remedies had failed to afford a full and fair adjudication of the federal contentions raised either because the state afforded no remedy or because the remedy afforded proved in practice unavailable or seriously inadequate.

The court said in that case, Ex parte Hawk, 321 U.S. 114, 118, 64 S.Ct. 448, 450, 88 L.Ed. 572: “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, 230, 232, 44 S.Ct. 519, 521-522, 68 L.Ed. 989.

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, 294 U.S. [103, at page] 115, 55 S.Ct. [340], 343, 79 L.Ed. 791, 98 A.L.R. 406, 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, 43 S.Ct. 265, 67 L.Ed. 543; Ex parte Davis, 318 U.S. 412, 63 S.Ct. 679, [87 L.Ed. 868], 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.” In House v.

Mayo 324 U.S. 42, 65 S.Ct. 517, 520, 89 L.Ed. 739, where the petition in the district court alleged adequate grounds for relief and that court refused to entertain the petition because the Supreme Court had denied certiorari to review a state court decision denying relief on habeas corpus, the Supreme Court in reversing this action was at pains to point out that the usual rule was not applicable because the exceptional situation pointed out in Ex parte Hawk was present in that the basis of the state court’s decision was that the remedy sought in the state court was not permitted by state law.

What the Supreme 'Court said in this connection is illuminating here, as it is clearly implied that the usual rule would have been applicable but for the fact that under state law relief was not obtainable in the habeas corpus proceedings instituted in the state court, which clearly distinguishes the case from the one at bar.

The court reconciles the apparent discrepancy between the rule that denial of certiorari imports no expression of opinion upon the merits with the rule that a district court should give that fact consideration in habeas corpus cases, by pointing out that it is in cases where the lower court has no power under state law to afford relief that the latter rule is inapplicable. The court said: 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 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, “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, 64 S.Ct. 1058, [88 L.Ed. 1553], The 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. * * * 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 re-examine upon writ of habeas corpus the questions thus adjudicated.

See Ex parte Hawk, supra, 321 U.S. at page 118, 64 S. Ct. [448], at page 450 [88 L.Ed. 572]. 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, 2, 57 S.Ct. 2, 81 L.Ed. 3; State of New York ex rel. Whitman v. Wilson 318 U.S. 688, 690, 63 S.Ct. 840, 841, 87 L.Ed. 1083; Williams v.

Kaiser, supra, 323 U.S. [471], 473, 476-479, 65 S.Ct. [363] pages 365—368 [89 L.Ed. 398].” The petition sets forth facts upon which, under recent decisions of the Supreme Court, petitioner is probably entitled to relief in the proper tribunal. See De Meerleer v. People of State of Michigan 329 U.S. 663, 67 S.Ct. 596; Canizio v. People of State of New York 327 U.S. 816, 66 S.Ct. 699, 90 L.Ed. 1039; Rice v. Olson 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367; Tomkins v. State of Missouri 323 U.S. 485, -65 S.Ct. 370, 89 L.Ed. 407.

He argues that these recent decisions take his case out of the ordinary rule, since they could not have been before the state court at the time his case was considered on habeas corpus or before the Supreme Court at the time certiorari was denied. His contention is that they have resulted in a change or at least a clarification of the law with respect to the necessity of counsel, and that he is entitled to have his case reconsidered in the light of the law as they have established it.

We are inclined to think that this last contention is correct, but it does not follow that the federal district court is the place to have it reconsidered. He should file another petition in the state court. In view of the change in the law, if there be a change as he contends, he has not exhausted his remedies in the state courts until he seeks a remedy there on the basis of the decisions which he claims give him a right to relief.

The former proceeding in the state court will not preclude the filing of a petition now, since the principle of res judicata is no more applicable to habeas corpus proceedings in the courts of Virginia than in the federal courts; and until action of the state courts has been invoked on the basis of the decisions relied on, it cannot be said that state remedies have been exhausted in the present status of the case so as to justify resort to the federal jurisdiction.

It is, of course, well settled that petitioner may not file petition for habeas corpus in the federal court until his remedies in the state courts have been exhausted. Ex parte Hawk 321 U.S. 114, 116, 117, 64 S.Ct. 448, 88 L.Ed. 572; White v. Ragen 324 U.S. 760, 764, 65 S.Ct. 978, 89 L.Ed. 1348. The order appealed from will be affirmed, without prejudice, however, to the right of petitioner to apply to the state courts for relief.

Application to those courts will enable them to reconsider their prior ruling in the light of recent Supreme Court decisions with review by the Supreme Court, and will avoid the necessity of having any lower federal court review proceedings of a state tribunal. Not only do we think that what we have decided is in accord with the practice as laid down by the Supreme Court, but we think also that, if petitioner is entitled to relief, it will afford him relief more expeditiously than through a reversal of the decision below. A reversal would not mean that petitioner would be entitled to immediate discharge.

He would be held and turned over to the state courts for trial. Mitchell v. Youell 4 Cir. 130 F.2d 880, 882. If certiorari to review our decision were applied for, he would necessarily be held in prison for several months before being brought to trial. Under our judgment, he can apply at once to the Virginia courts for habeas corpus, and if they are of opinion that he is entitled to relief under the recent Supreme Court decisions, they can grant him immediate relief.

If relief is denied, he can apply for certiorari and have the matter heard by the Supreme Court of the United States with little if any more delay than would be involved in the application for certiorari to review our decision, which would almost certainly be made if we were to take the habeas corpus matter out of the hands of the state courts. If petitioner is entitled to relief under the recent decisions of the Supreme Court, however, we must assume that the Virginia Courts will grant him that relief.

It would not be fair to those courts to assume that they would not follow the decisions of the Supreme Court of the United States, or to hold that state remedies have been exhausted because of an application made before the handing down of the decisions of the Supreme Court now relied on as changing or clarifying the law. Affirmed.