DANIELS et al. v. ALLEN, Warden, Central Prison of the State of North Carolina, 192 F.2d 763

PARKER, Chief Judge. This is an appeal from an order vacating a writ of habeas corpus and dismissing the petition for the writ. Appellants were indicted in a North Carolina state court for the crime of murder and were convicted by a jury of murder in the first degree. The-jury did not recommend mercy in the case and petitioners were sentenced to death. They appealed to the state Supreme Court,. . which affirmed the conviction, and then applied to the Supreme Court of the United! States for a writ of certiorari, which was. denied.

Two applications for leave to file .petitions for writs of error coram nobis were filed before the Supreme Court of North Carolina and were denied by that court. After all these proceedings were-had, a -petition for habeas corpus was filed in the court below on grounds which had been raised before the state court in the-trial of the case. A full hearing was given appellants by the District Judge, who after-finding the facts held that there was no merit in the grounds urged by appellants- and also that they had not shown themselves entitled to the writ in view of the procedural history of the case.

The last ground is the only one that we need consider. This is not a case where facts alleged to invalidate action of a state court were discovered after trial, or where the defendants were without counsel to protect their rights during trial.

They were represented on the trial by counsel of their own choosing, who took the place of counsel who had been earlier appointed by the court to represent them; and these counsel of their choice raised, offered evidence to support and had the trial court pass upon the very points urged in the petition for habeas corpus, viz. that Negroes were discriminated against in the selection' of the grand and petit 'juries by which appellants had been indicted and tried and that confessions offered in evidence against appellants were not voluntary.

The trial court, after a full hearing, decided these questions against appellants, exceptions to the rulings were noted, and after conviction and sentence an appeal to the Supreme Court of the state was duly taken and counsel obtained from the trial judge an extension allowing 60 days for serving case on appeal. The case on appeal was not served within the 60 days allowed, but counsel attempted to serve it one day after the expiration of that period.

The trial judge struck it from the record because not served within time, and appellants attempted to bring it up as a part of the record by applying to the Supreme .Court of the state for a writ of certiorari, which that court denied, State v. Daniels, 231 N.C. 17, 56 S.E.2d 2.

In ’denying the writ, the Supreme Court pointed out that appellants could apply to that court for permission to file_ in the trial court a petition for writ of error coram nobis to raise matters extraneous to the record; and application was made for such permission, which was denied on the ground that it did “not make a prima facie showing of substance”. State v. Daniels, 231 N.C. 341, 56 S.E.2d 646, 647.

After the Supreme Court of North Carolina had denied appellants’ .petition for cer-tiorari and for permission to apply for the writ of error coram nobis, it affirmed the judgment and sentence of the trial court and dismissed the appeal. State v. Daniels, 231 N.C. 509, 57 S.E.2d 653.

Application was thereupon made to the Supreme Court of the United States to review the action of the state court, petitioners attaching to their application a full report of the proceedings of the trial court and complaining because of the selection of the jury and the admission of the confessions as well as because the case on appeal had been stricken from the record.

These questions were thoroughly discussed in the briefs filed in support of the petition for certiorari; but the Supreme Court denied the writ, calling attention in its memorandum order, not only to the decision of the Supreme Court of North Carolina affirming the judgment, but also to the decisions of that court denying the petition for certiorari to ‘bring up the case on appeal and denying permission to file petition for writ of error coram nobis. Daniels v. North Carolina, 339 U.S. 954, 70 S.Ct. 837, 94 L.Ed. 1366.

After denial of certiorari by the Supreme Court of the United States, appellants again applied to the Supreme Court of North Carolina for permission to file a petition for writ of error coram nobis in the trial court; but this was denied on the ground that the only matter presented by the petition had been passed upon by the trial court and had been presented to the Supreme Court of the United States in the application to. that court for certiorari.

The Court said: “The petitioners now again petition this Court for leave to file a petition in the Superior Court of Pitt County for a writ of error coram nobis; and incorporate in that petition substantially matters that were presented to the Supreme Court of the United States in their petition to that Court for certiorari.

On the face of the petition it appears that these are matters fully presented to the Court upon their trial and there passed upon. “The function and limitations of the writ of error coram nobis were called to the attention of counsel for the petitioners when the petition for certiorari to bring up the case on appeal was dismissed in this Court. State v. Daniels, 231 N.C. 17, 56 S.E.2d 2, supra; and again in the subsequent decision dismissing the petition for leave to file a petition fox such writ in the trial court. “The writ of error coram nobis is not a substitute for appeal.

Under our practice permission to petition the Superior Court in which the petitioning defendant was tried is given only when the matter on which the petition is based is ‘extraneous to the record.’ * * * “We understand that the petition for cer-tiorari presented to the Supreme Court of the United States comprehended all matters which might be pleaded in that Court in the premises, and upon which the petitioners may now rely.” State v. Daniels, 232 N.C. 196, 59 S.E.2d 430, 431-432. No application for certiorari was made to the Supreme Court of the United States to review this decision.

On these facts we think that the District Judge was clearly correct in holding that appellants were not entitled to the writ of habeas corpus. The question involved is not one of exhausting state remedies as a prerequisite to the writ, nor of the rights of one who through lack of counsel has failed to raise constitutional questions in the trial court, but of permitting persons who have been represented by counsel and who have had the trial court pass on the identical questions that they wish to raise by habeas corpus to use that writ in lieu of an appeal to review the action of the trial court on those questions.

To permit this to be done would be, not only to permit the writ of habeas corpus to be used in lieu of appeal, but to permit .one of the lower federal courts to review the decisions of a state court of coordinate jurisdiction, instead of requiring that the orderly process of appeal to the Supreme Court of the state with application to the Supreme Court of the United States for certiorari be followed. It is no answer to this to say that appellants have lost their right to have the questions which they present reviewed by the Supreme Court of the state.

The right of review was provided by state practice and was lost by failure to comply with the reasonable rules of the state court, which the federal courts have no power to waive or to nullify. It is well settled that the writ of habeas corpus may not be used in lieu of an appeal to review the action of a trial court with respect to questions there raised and passed upon. Woolsey v. Best, 299 U.S. 1, 57 S.Ct. 2, 81 L.Ed. 3; Goto v. Lane, 265 U.S. 393, 44 S.Ct. 525, 68 L.Ed. 1070; Riddle v. Dyche, 262 U.S. 333, 43 S.Ct. 555, 67 L.Ed. 1009; Glasgow v.

Moyer, 225 U.S. 420, 428, 32 S.Ct. 753, 56 L.Ed. 1147; Sanderlin v. Smyth, 4 Cir., 138 F.2d 729. And the rule is not different because the appellants or their counsel have allowed the time for serving the case on appeal to elapse and thus lost the right to have the questions reviewed by appeal. Goto v. Lane, supra; Riddle v. Dyche, supra. As said in Goto v. Lane, supra [265 U.S. 393, 44 S.Ct. 527]: “If the questions presented involved the application of constitutional principles, that alone did not alter the rule. Markuson v. Boucher, 175 U.S. 184, 20 S.Ct. 76, 44 L.Ed. 124.

And, if the petitioners permitted the time within which a review on writ of error might be obtained to elapse and thereby lost the opportunity for such a review, that gave no right to resort to habeas corpus as a substitute.” It is argued that the allegation that constitutional rights of appellants were denied in the ruling of the state trial court is sufficient, of itself, to authorize thé issuance of the writ of habeas corpus by the federal district court.

The answer is that release under habeas corpus of one convicted by a state court can be had only if the action of the state court may be held void; and it would be absurd to say that the judgment of a court is rendered void because of an erroneous ruling. To justify such action, there must have been such a gross violation of constitutional rights as to deny the accused the substance of a fair trial in a situation where he was not in position to protect himself because of ignorance, duress or other reason for which he should not be held responsible. As this court said in Eury v.

Huff, 4 Cir., 141 F.2d 554, 555, “A prisoner does not show right to release on habeas corpus merely by showing error on his trial, even though this involve a violation of constitutional right. To entitle him to release on habeas corpus there must have been such ‘gross violation of constitutional right as to deny [to the prisoner] the substance of a fair trial and thus oust the court of jurisdiction to impose sentence.’ ” In Markuson v.

Boucher, 175 U.S. 184, 185, 20 S.Ct. 76, 44 L.Ed. 124, the Supreme Court laid down the rule generally applicable as follows: “We have frequently pronounced against the review by habeas corpus of the judgments of the state courts in criminal cases, because some right under the Constitution of the United States was alleged to have been denied the person convicted, and have repeatedly decided the proper remedy was by writ of error.” And in Glasgow v.

Moyer, 225 U.S. 420, 429, 32 S.Ct. 753, 756, 56 L.Ed. 1147, the Supreme Court said: “The principle of the cases is the simple one that if a court has jurisdiction of the case, the writ of habeas corpus cannot be employed to re-try the issues, whether of law, constitutional or other, or of fact.” In dealing with the question, with particular reference to the broad language in Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455, upon which appellants here rely, the Court of Appeals of the Ninth Circuit, speaking through the late Judge Garrecht, in Graham v.

Squier, 9 Cir., 132 F.2d 681, 683-684, said: “The language of the emphasized clause in the excerpt from the Bowen case, considered in and of itself and isolated from the text of which it is a part, might seem to indicate, as petitioner would have it, that whenever any constitutional right is infringed in a criminal trial, the accused, if he be convicted, may thereafter nullify the judgment by bringing a habeas corpus proceeding.

But taking that clause, as is obviously necessary in order to arrive at the true meaning,in conjunction with the statements of the Supreme Court contained in the very same paragraph, and which express the unvaried rule that a criminal action may be collaterally attacked on jurisdictional grounds alone, one sees immediately that the Supreme Court intended no -more than that the writ of habeas corpus should issue only in those cases where the denial of the constitutional rights of the accused operated to prevent the trial court from acquiring jurisdiction over the person of the accused, or if jurisdiction did exist at the commencement of the trial, operated to destroy that jurisdiction at some stage during the progress thereof.

That this

interpretation of the Supreme Court’s language is correct will appear from an examination of. the sustaining authorities, which are cited in the case immediately following the clause under discussion.” In Sanderlin v. Smyth, 4 Cir., 138 F.2d 729, 730-731, this court examined with great care the rules to be observed by the federal -courts in the troublesome and delicate matter of issuing writs of habeas corpus on the application of persons who are imprisoned under final judgments of state courts.

We stated our conclusions in an opinion by a unanimous court as follows: “There has been some confusion of thought recently with regard to the right of persons imprisoned under judgments of state courts which they claim to have been obtained in violation of rights guaranteed, by the Constitution of the United States-to apply to the lower federal courts for release under habeas corpus. It may be useful, therefore, to summarize the rules-which we understand to be applicable in such cases. They are: “1.

The writ of habeas corpus may not be used in such cases as an appeal or writ of error to review proceedings in the state court. Woolsey v. Best, 299 U.S. 1, 57 S.Ct. 2, 81 L.Ed. 3; Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; Grant v. Richardson, 4 Cir., 129 F.2d 105; Jones v. Dowd, 7 Cir., 128 F.2d 331. The judgment of the state court is ordinarily resadjudicata, not only of those issues which were raised and determined, but also of those which might have been raised. Woolsey v. Best, supra; Ex parte Spencer, 228 U.S. 652, 33 S.Ct. 709, 57 L.Ed. 1010; Morton v. Henderson, 5 Cir., 123 F.2d 48.

Or dinarily, failure to raise a constitutional question during trial amounts to waiver thereof (United States [ex rel. Jackson] v. Brady, 4 Cir, 133 F.2d 476, 481) ; and only where failure to raise the question at the trial was due to ignorance, duress or other reason for which petitioner should not be held responsible, may resort be had to habeas corpus in the federal courts, and, even in these cases, only where it is made to appear that there has been such gross violation of constitutional right as to deny to the prisoner the substance of a fair trial and thus oust the court of jurisdiction to impose sentence.

Moore v. Dempsey, supra; Frank v. Mangum, 237 U.S. 309, 331, 35 S.Ct. 582, 59 L.Ed. 969; Cf. Valentina v. Mercer, 201 U.S. 131, 26 S.Ct. 368, 50 L.Ed. 693. “2. The federal court should not issue the writ, even in the extraordinary cases above indicated, unless it is made to appear that petitioner has no adequate remedy in the state courts. If he has such remedy by habeas corpus, writ of error coram nobis or otherwise, he must pursue it, and can have the writ from the federal courts only after all state remedies have been exhausted. Mooney v.

Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 46 S.Ct. 1, 70 L.Ed. 138; Jones v. Dowd, 7 Cir, 128 F.2d 331; Hawk v. Olson, 8 Cir, 130 F.2d 910, certiorari denied 317 U.S. 697, 63 S.Ct. 435, 87 L.Ed. 557.

Ordinarily, adjudications made by the state courts in connection with applications made to them will be binding on the federal courts; and, if the prisoner is not satisfied with state court action, his remedy, after exhausting the rights of review provided by state law, is to apply to the Supreme Court of the United States for writ of certiorari to review the state court proceedings, not to seek such review through application to a lower federal court or judge for a writ of habeas corpus. Urquhart v. Brown, 205 U.S. 179, 27 S.Ct. 459, 51 L.Ed. 760, and cases there cited; Frach v.

Mass, 9 Cir, 106 F.2d 820; United States [ex el. Jackson] v. Brady, 4 Cir, 133 F.2d 476, 482. “3.

The' writ of habeas corpus may be issued by a federal court or judge in cases where petitioner is imprisoned under the judgment of a state court only if it is .nade to appear, (1) that there has been such gross violation of constitutional right as to deny the substance of a fair trial and the prisoner has not been able to raise the question on the trial because of ignorance, duress or other reason for which he should not be held responsible, (2) that he has exhausted his remedies under state law, and (3) that no adequate remedy is available to him under state law, either because state procedure does not provide adequate corrective process or because there are exceptional circumstances, such as local prejudice or an inflamed condition of the public mind, which render it impossible or unlikely for him to obtain adequate protection of his rights in the courts of the state, i. e. he is entitled to the writ in the federal courts ‘only when the state courts will not, or cannot, do justice’.

United States ex rel. Lesser v. Hunt, 2 Cir, 117 F.2d 30, 31; Moore v. Dempsey, supra.” Under the rules thus laid down, appellants are clearly not entitled to the writ. The questions which they raise have been decided against them by the state trial-court and are res judicata.

Having been represented by competent counsel on the trial, they cannot claim that their contentions were not properly presented or that they were unable “to raise the question on the trial becattse of ignorance, duress or other reason for which they should not be held responsible.” They cannot say that no adequate remedy was available to them under state law, for their contentions were made and passed upon by the trial court and there were no special circumstances such as local prejudice or an inflamed condition of the public mind to indicate that the state court could not or would not do justice.

That they lost their full right of review through failure to comply with the rules does not negative the adequacy of the state remedy. Surely one convicted in a state court may not have his case reviewed by a federal district court instead of the Supreme Court of the state merely by failing to. comply with the state rules relating to appeals. It is argued that the case is one of peculiar hardship because the default in complying with the state court’s rules consisted in only one day’s delay. This was a matter, however, which went not to the matter of hearing but of review of the hearing.

It was before the Supreme Court of the United States in the application for certiorari ; and, proper respect for that court requires that we assume that, if it had thought that such enforcement of the rules of court amounted to a denial of a fair hearing to men condemned to death, it would have granted certiorari either to the Supreme Court or the trial court and would have reviewed the case. The case falls squarely, we think, within what was said by the Supreme Court in Ex parte Hawk, 321 U.

S. 114, 118, 64 S.Ct. 448, 450, 88 L.Ed. 572, as follows. “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 re-examine 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] 115, 55 S.Ct. [340] 343, 79 L.Ed. 791, 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.” The citation by the Supreme Court of Moore v.

Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543, and Ex parte Davis, 318 U.S. 412, 63 S.Ct. 679, 87 L.Ed. 868, shows what is meant by the remedy afforded by state law proving in practice unavailable or seriously inadequate. In Moore v. Dempsey it appeared that the accused had been hurried to conviction, without regard to their rights, by a state court under mob domination. In Ex parte Davis, habeas corpus was denied because applicant had not exhausted his state remedies, the court saying that it would not assume that the state court would not handle the case properly.

Nothing is said in either of these cases, or elsewhere, to suggest that a state remedy is to be deemed unavailable or inadequate, so as to authorize resort to the federal courts, merely because applicant has failed to comply with the reasonable rules of the state court in applying for the remedy. It must be remembered that the lower federal courts are given no power to review state court action.

They can release persons held under judgments of state courts only on a holding that such judgments are absolutely void; and judgments are not rendered void by erroneous rulings, even though such rulings involve constitutional rights. The federal courts should not hesitate to grant the writ of habeas corpus and declare void any state c'ourt judgment based on such gross violation of constitutional rights as to deny to an accused the substance of a fair trial, where because of ignorance, duress or other reason for which he is not responsible he has been unable ü> protect himself.

On the other hand, they should not, under the guise of exercising the habeas corpus power, usurp the power which has not been granted them of reviewing the action of state trial courts of coordinate jurisdiction. As was well said by Mr. Justice Minton, then a Circuit Judge, in United States ex rel. Feely v. Ragen, 7 Cir., 166 F.2d 976, 981: “There should not be a rigid formalism in habeas corpus proceedings in which courts are seeking the substance as to the violation of constitutional rights.

But it must be remembered that habeas corpus is a collateral attack by the courts of Federal jurisdiction invading the province of State jurisdiction * * *. We should not lose sight of the fact that the Federal courts are being used to invade the sovereign jurisdiction of the States, presumed to be competent to handle their own police affairs, as the Constitution recognized when the police power was left with the States. We are not super-legislatures or glorified parole boards. We as courts look only to the violation of Federal Constitutional rights.

When we condemn a State’s exercise of its jurisdiction and hold that the exercise of its powers is not in accordance with due process, we are in effect trying the States. It is State action that is on trial, and a decent regard for the coordinate powers of the two governments requires that we give due process to the State. That is the reason that in habeas corpus cases the relator must first show that he has exhausted his State remedies to open the way for the Federal courts to try the State’s exercise of its sovereign power.

For after all, the States represent the people more intimately than the Federal Government. “To redress an alleged imbalance between the State’s exercise of its power and the rights of the individual, the Federal courts exercise a delicate function, the importance of which points up our duty to consider that imbalance in the light of the rights of organized society through the State Government, representing all the people, as against the relator-defendant. There is no room here for crusades or the fulfillment of missions. We are to hold the balance true. Frank v.

Mangum, 237 U.S. 309, 329, 35 S.Ct. 582, 59 L.Ed. 969; Urquhart, Sheriff, v. Brown, 205 U.S. 179, 183, 27 S.Ct. 459, 51 L.Ed. 760; Baker v. Grice, 169 U.S. 284, 290, 291, 18 S.Ct. 323, 42 L.Ed. 748.” For the reasons stated the order vacating the writ of habeas corpus and dismissing the petition of appellants will be affirmed. Affirmed. .

That the Supreme Court of North Carolina was thoroughly cognizant, at the time, of the right of Negroes accused of crime to be tried by juries in the selection of which discrimination had not been practiced against Negroes and that it was alive to its duty to enforce the right, is shown by its action in granting two new trials to one Raleigh Spoiler, one in 1948 and the other in 1949, because the right had not been observed in his case. See State v. Speller, 229 N.C. 67, 47 S.E.2d 537; State v. Speller, 230 N.C. 345, 53 S.E.2d 294.

It had before it the fact that the question had been raised in this case; for the- record shows that the case on appeal which had been stricken by the trial judge was attached to the application made for certiorari to bring it up as a part of the record. . United States ex rel. Auld v. Warden of New Jersey State Penitentiary, 3 Cir., 187 F.2d 615, upon which appellants rely, deals with the exhaustion of state remedies as a prerequisite to habeas corpus and held the exceptional circumstances there to justify proceeding without exhausting them.

It nevertheless affirmed the order of the District Court denying the writ of habeas corpus. . See also Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761; Adkins v. Smyth, 4 Cir., 188 F.2d 452; Goodwin v. Smyth, 4 Cir., 181 F.2d 498; Stonebreaker v. Smyth, 4 Cir., 163 F.2d 498, 499.