Kelly v. Dowd
| Decision Date | 06 March 1944 |
| Docket Number | 8377.,No. 8376,8376 |
| Citation | 140 F.2d 81 |
| Parties | KELLY v. DOWD, Warden (two cases). |
| Court | U.S. Court of Appeals — Seventh Circuit |
Garfield J. Kelly, in pro. per.
James A. Emmert, Atty. Gen., Frank Hamilton, Cleon H. Foust, Frank E. Coughlin, and Joseph W. Hutchinson, Asst. Attys. Gen., for appellee.
Before SPARKS and MAJOR, Circuit Judges, and LINDLEY, District Judge.
Writ of Certiorari Denied March 6, 1944. See 64 S.Ct. 639.
Petitioner's contention in cause 8377, that the District Court improperly dismissed his petition for a writ of habeas corpus, we think, can not be upheld. Despite his voluminous citation of authority and zealous argument, we see no escape from the rule announced by the Supreme Court in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764; Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927; Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; Beal v. Missouri Pac. R. R. Corp., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577; Reid v. Jones, 187 U.S. 153, 23 S.Ct. 89, 47 L.Ed. 116; Drury v. Lewis, 200 U.S. 1, 26 S.Ct. 229, 50 L.Ed. 343; Urquhart v. Brown, 205 U.S. 179, 27 S.Ct. 459, 51 L.Ed. 760 and followed by this court in such cases as Achtien v. Dowd, Warden, 7 Cir., 117 F.2d 989; Botwinski v. Dowd, Warden, 7 Cir., 118 F. 2d 829; Davis v. Dowd, Warden, 7 Cir., 119 F.2d 338.
Under the established doctrine of those cases it was petitioner's duty to present his application for relief from allegedly illegal restraint of liberty because of a conviction for kidnapping and robbery in the state court to the judicial formus of that state. Though federal courts have authority under existing statutes to discharge upon habeas corpus one held in custody by state authority in violation of the Constitution of the United States, they are under obligation to exercise discretion as to the time and manner in which the power shall be exerted. They will not ordinarily interfere with the normal course of procedure under state authority but rather will leave the applicant to exhaust the remedies afforded by the state for determining whether he is illegally imprisoned. Federal jurisdiction is to be exerted only in exceptional cases involving such an emergency or great urgency as necessitate action to prevent irreparable injury. The jurisdiction to interfere with the proceedings of state governmental bodies charged with the prosecution and punishment of offenders is an exceedingly delicate one to be exercised with the greatest of care and nicest sense of propriety. In the absence of the exceptional circumstances mentioned, a sense of comity and due regard for state jurisdiction demand that the applicant be left to his remedies with the state courts who, no less than those of the United States, are charged with the obligation to recognize and protect his constitutional rights.
But petitioner says that he has lately been denied a writ by the Circuit Court of Vigo County and again by the Circuit Court of LaPorte County and again by the Supreme Court of Indiana, to whom he made application as a court of original jurisdiction. Whether the latter tribunal denied the writ because of lack of jurisdiction to entertain it, is not disclosed. At any rate petitioner has not appealed from either of the Circuit Court decisions, or applied for writ of certiorari from the decision of the Supreme Court of Indiana to the Supreme Court of the United States.
In cause 8376, on March 17, 1943, petitioner filed his petition for a mandatory injunction against the Warden praying that he "be granted his right to receive from an established religion, the Watch Tower Bible and Tract Society, such Bible study helps as are published by said Society so that petitioner can study and determine the will of Jehovah God." His complaint was wholly without averment of fact, contained no statement that he had asked for and been denied the privilege of receiving literature and...
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