191 F.2d 625 (9th Cir. 1951), 12709, Ekberg v. McGee

Docket Nº:12709.
Citation:191 F.2d 625
Party Name:EKBERG v. McGEE, Director, California Department of Corrections et al.
Case Date:August 31, 1951
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 625

191 F.2d 625 (9th Cir. 1951)

EKBERG

v.

McGEE, Director, California Department of Corrections et al.

No. 12709.

United States Court of Appeals, Ninth Circuit.

August 31, 1951

Rehearing Denied Oct. 25, 1951.

Allan L. Sapiro and Henry C. Todd, San Francisco, Cal., for appellant.

Edmund G. Brown, Atty. Gen., State of Cal. and Doris H. Maier, Deputy Atty. Gen., of the State of Cal., for appellee.

Before DENMAN, Chief Judge, and HEALY and ORR, Circuit Judges.

DENMAN, Chief Judge.

This is an appeal from an order of the district court refusing to allow appellant Ekberg to file, in forma pauperis, an application for a writ of habeas corpus. The district court found that the applicant, a prisoner confined on a conviction of felony in the state courts of California, had exhausted his state remedies and that the Supreme Court of the United States, 339 U.S. 969, 70 S.Ct. 988, 94 L.Ed. 1377, denied certiorari to review the action of the Supreme Court of the State of California in denying his petition for habeas corpus. The brief of the appellee admits that the application for the writ in the district court presents no grounds which have not been presented heretofore in the action filed by appellant in the state court, namely, the petition for the writ of habeas corpus to the California Supreme Court.

The ground of the district court's decision is that, although the appellant had exhausted the state remedy in habeas corpus, he must nevertheless show exceptional circumstances to warrant the exercise of his discretion to refuse to allow the filing of his application for the writ 'if it appear that the applicant has no cause of action'. Huffman v. Smith, 9 Cir., 172 F.2d 129, 130. Where an examination of the state record shows a cause of action, the Supreme Court, in Hawk v. Olson, 326 U.S. 271, 276, 66 S.Ct. 116, 119, 90 L.Ed. 61,

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requires its consideration in either of the following situations: 'When the state does not provide corrective judicial process, the federal courts will entertain habeas corpus to redress the violation of the federal constitutional right. White v. Ragen, 324 U.S. 760, 65 S.Ct. 978 (89 L.Ed. 1348). When the corrective process is provided by the state but error, in relation to the federal question of constitutional violation, creeps into the record, we have the responsibility to review the state proceedings. Williams v....

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