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

Docket NºNo. 70-5308
Citation404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418
Party NameWilwording v. Swenson
Case DateDecember 14, 1971
CourtUnited States Supreme Court

Page 249

404 U.S. 249 (1971)

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

Wilwording

v.

Swenson

No. 70-5308

United States Supreme Court

Dec. 14, 1971

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Syllabus

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.

Held:

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.

PER CURIAM.

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

Page 250

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.

I

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.

Page 251

II

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

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877 practice notes
  • 344 F.Supp. 226 (W.D.Mo. 1972), 19515-4, Hegwood v. Swenson
    • United States
    • Federal Cases United States District Courts 8th Circuit Western District of Missouri
    • June 7, 1972
    ...motions in the Supreme Court of Missouri for rehearing or for transfer of his appeal to the Supreme Court en banc. Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed. 418 (1971); Robinson v. Swenson, 331 F.Supp. 483 (W.D.Mo.1971); Harris v. Swenson, Civil Case No. 19,703-3 (W.D.Mo.1......
  • 364 F.Supp. 1192 (M.D.Fla. 1973), 72-604, Fain v. Duff
    • United States
    • Federal Cases United States District Courts 11th Circuit Middle District of Florida
    • January 15, 1973
    ...has had this initial opportunity, the exhaustion requirement of 28 U.S.C. § 2254(b) has been satisfied. Accord Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 The respondents have taken the position that, conceding jurisdiction in some federal district court, the only dist......
  • 394 F.Supp. 76 (W.D.Mo. 1973), Civ. A. 73CV55-W-3, Wilwording v. Swenson
    • United States
    • Federal Cases United States District Courts 8th Circuit Western District of Missouri
    • October 19, 1973
    ...corpus concerning conditions of confinement was filed in this Court which was denied in Wilwording v. Swenson, 331 F.Supp. 1188, reversed 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 Petitioner states that he is 'not certain' whether he was represented by counsel at his arraignment and plea b......
  • 592 F.Supp. 729 (N.D.Ill. 1984), 83 C 3454, United States ex rel. Brown v. McGinnis
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Illinois
    • February 28, 1984
    ...(7th Cir. 1978). Moreover, where the state remedy is conjectural, a petitioner may not be required to exhaust it. Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 30 L.Ed.2d 418 (1971). However, the exhaustion requirement of § 2254(b) and (c) does not compel the court to predict......
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875 cases
  • 344 F.Supp. 226 (W.D.Mo. 1972), 19515-4, Hegwood v. Swenson
    • United States
    • Federal Cases United States District Courts 8th Circuit Western District of Missouri
    • June 7, 1972
    ...motions in the Supreme Court of Missouri for rehearing or for transfer of his appeal to the Supreme Court en banc. Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed. 418 (1971); Robinson v. Swenson, 331 F.Supp. 483 (W.D.Mo.1971); Harris v. Swenson, Civil Case No. 19,703-3 (W.D.Mo.1......
  • 364 F.Supp. 1192 (M.D.Fla. 1973), 72-604, Fain v. Duff
    • United States
    • Federal Cases United States District Courts 11th Circuit Middle District of Florida
    • January 15, 1973
    ...has had this initial opportunity, the exhaustion requirement of 28 U.S.C. § 2254(b) has been satisfied. Accord Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 The respondents have taken the position that, conceding jurisdiction in some federal district court, the only dist......
  • 394 F.Supp. 76 (W.D.Mo. 1973), Civ. A. 73CV55-W-3, Wilwording v. Swenson
    • United States
    • Federal Cases United States District Courts 8th Circuit Western District of Missouri
    • October 19, 1973
    ...corpus concerning conditions of confinement was filed in this Court which was denied in Wilwording v. Swenson, 331 F.Supp. 1188, reversed 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 Petitioner states that he is 'not certain' whether he was represented by counsel at his arraignment and plea b......
  • 592 F.Supp. 729 (N.D.Ill. 1984), 83 C 3454, United States ex rel. Brown v. McGinnis
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Illinois
    • February 28, 1984
    ...(7th Cir. 1978). Moreover, where the state remedy is conjectural, a petitioner may not be required to exhaust it. Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 30 L.Ed.2d 418 (1971). However, the exhaustion requirement of § 2254(b) and (c) does not compel the court to predict......
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