404 U.S. 249 (1971), 70-5308, Wilwording v. Swenson

Docket Nº:No. 70-5308
Citation:404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418
Party Name:Wilwording v. Swenson
Case Date:December 14, 1971
Court:United States Supreme Court

Page 249

404 U.S. 249 (1971)

92 S.Ct. 407, 30 L.Ed.2d 418




No. 70-5308

United States Supreme Court

Dec. 14, 1971




Petitioners' complaints relating to the condition of their confinement were held by the Missouri courts not to be cognizable by means of a petition for habeas corpus. The Court of Appeals affirmed the District Court's subsequent dismissal of the habeas petitions on the ground that 28 U.S.C. § 2254 had not been satisfied because other types of state remedies might be available.


1. Section 2254 does not require petitioners to pursue alternative courses suggested by the Court of Appeals, since their availability was conjectural and, regardless of the remedy invoked, the state courts have not granted a hearing to state prisoners on the conditions of their confinement.

2. Petitioners were entitled to have their actions treated as claims for relief under the Civil Rights Acts, to which exhaustion requirements do not apply.

Certiorari granted; 439 F.2d 1331, reversed and remanded.

Per curiam opinion.


On the ground that they challenged only their living conditions and disciplinary measures while confined in maximum security at Missouri State Penitentiary, and did not seek their release, petitioners' state habeas corpus petitions were dismissed. The Missouri Supreme Court affirmed. Petitioners then sought federal habeas corpus in the District Court for the Western District of Missouri. The District Court dismissed the petitions and the Court of Appeals for the Eighth Circuit affirmed, 439 F.2d 1331. Although petitioners had exhausted state habeas relief the Court of Appeals agreed with the District Court that the requirements of 28 U.S.C. § 2254 had not been satisfied because petitioners had not invoked any of a number of possible alternatives to state habeas including "a suit for injunction, a writ

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of prohibition, or mandamus or a declaratory judgment in the state courts," or perhaps other relief under the State Administrative Procedure Act. Id. at 1336.


Section 2254 does not erect insuperable or successive barriers to the invocation of federal habeas corpus. The exhaustion requirement is merely an accommodation [92 S.Ct. 409] of our federal system designed to give the State an initial "opportunity to pass upon and correct" alleged violations of its prisoners' federal rights. Fay v. Noia, 372 U.S. 391, 438 (1963). Petitioners are not required to file "repetitious applications" in the state courts. Brown v. Allen, 344 U.S. 443, 449 n. 3 (1953). Nor does the mere possibility of success in additional proceedings bar federal relief. Roberts v. LaVallee, 389 U.S. 40, 42-43 (1967); Coleman v. Maxwell, 351 F.2d 285, 286 (CA6 1965). Whether the State would have heard petitioners' claims in any of the suggested alternative proceedings is a matter of conjecture; certainly no available procedure was indicated by the State Supreme Court in earlier cases. See McMichaels v. Hancock, 428 F.2d 1222, 1223 (CA1 1970). Furthermore, we are not referred to a single instance, regardless of the remedy invoked, in which the Missouri courts have granted a hearing to state prisoners on the conditions of their confinement. In these circumstances, § 2254 did not require petitioners to pursue the suggested alternatives as a prerequisite to taking their claims to federal court. As Mr. Justice Rutledge stated in his concurrence in Marino v. Ragen, 332 U.S. 561, 568 (1947):

The "exhaustion of state remedies" rule should not be stretched to the absurdity of requiring the exhaustion of . . . separate remedies when, at the outset, a petitioner cannot intelligently select the proper way, and in conclusion he may find only that none of the [alternatives] is appropriate or effective.

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Moreover, although cognizable in federal habeas corpus, see Johnson v. Avery, 393 U.S. 483 (1969), petitioners'...

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