Brown v. Rose, Civ. A. No. 2972.

• Decision Date: 18 January 1973
• Docket Number: Civ. A. No. 2972.
• Citation: 362 F. Supp. 1003
• Parties: James Sonny BROWN, Petitioner, v. Jim ROSE, etc., Respondent. William Terry JOHNSON, Petitioner, v. Jim ROSE, etc., Respondent.
• Court: U.S. District Court — Eastern District of Tennessee

362 F. Supp. 1003

James Sonny BROWN, Petitioner, v. Jim ROSE, etc., Respondent.

William Terry JOHNSON, Petitioner, v. Jim ROSE, etc., Respondent.

Civ. A. No. 2972.

United States District Court, E. D. Tennessee, Northeastern Division.

January 18, 1973.

William Terry Johnson, pro se.

R. Jackson Rose, Asst. Atty. Gen., Nashville, Tenn., for respondent.

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

A writ of habeas corpus was granted in each of these proceedings, when the respondent failed to make timely response to respective orders therein to show cause why the writ should not issue. See memorandum opinion and order herein of December 29, 1972. On January 5, 1973, the respondent moved that the writs be discharged because of the failure of each respective petitioner to exhaust available state remedies. It is contended that the questions here presented had not been presented to, and ruled upon, by the courts of Tennessee.

In civil action no. 2971, this Court ruled that the petitioner Mr. Brown was entitled to no relief on his claim that he was denied his federal right to due process of law by not being furnished in advance of his trial a copy of the panel of the jury which convicted him, T.C.A. § 40-2025. See memorandum opinion and order therein of November 9, 1972. Mr. Brown claimed also that he was denied his federal right to the assistance of counsel during his arraignment in such criminal action. He does not appear to have presented this latter question to the Tennessee courts. In civil action no. 2972, the petitioner Mr. Johnson claims that he was denied his federal right to the assistance of counsel at a critical stage of the criminal proceeding against him in which he was convicted. He does not appear to have presented this question to the Tennessee courts.

In both of these actions, this Court reserved the question of whether each respective petitioner had exhausted his available state remedies. See memoranda and order of November 9, 1972 in each thereof. The problem thus presented is, whether, after the federal writ of habeas corpus has been granted and it is made to appear that available state remedies have not been exhausted, a federal court should abstain from hearing and deciding the merits of a state prisoner's claims for relief until state courts are afforded an opportunity to make such determinations.

This Court is required to dispose of such matters "* * * as law and justice require." 28 U.S.C. § 2243. It has been stated that our disposition of such matters must be consistent with the principles of exhaustion of available state corrective process. Donnell v. Swenson, D.C.Mo. (1969), 302 F.Supp. 1024, 1029 2. It has been stated further in the same vein:

* * * * * *

The federal courts may not, with propriety, impinge upon the prerogatives of the state courts. The rules of comity require us to stay our hands in situations of this kind in order to allow the state courts every opportunity to administer their criminal laws and procedure in a light becoming to the current constitutional standards applicable to the states under the Fourteenth Amendment to the United States Constitution. * * *

Thompson v. Tahash, D.C.Minn. (1968), 286 F.Supp. 663, 665 3. The Supreme Court has admonished us that federal courts must be ever mindful that the rule requiring state court remedies to be exhausted is grounded primarily upon the respect which federal courts have for the state judicial processes and upon the administrative necessities of the federal judiciary. Wade v. Mayo (1948), 334 U.S. 672, 679, 68 S.Ct....