Ekberg v. McGee, 12709.
Citation | 191 F.2d 625 |
Decision Date | 25 October 1951 |
Docket Number | No. 12709.,12709. |
Parties | EKBERG v. McGEE, Director, California Department of Corrections et al. |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
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.
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, requires its consideration in either of the following situations:
The district court declined so "to review the state proceedings," giving as its reasons:
We think the district court erred in holding exceptional circumstances must be shown before the federal court or judge may be called upon to exercise the discretion described in Huffman v. Smith, supra, 172 F.2d 130. The applicable statute is 28 U.S.C. § 2254, providing:
The italicized alternatives after the word "or" have not application where, as here, there is an effective state remedy of which the applicant has availed himself....
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Brown v. Allen Speller v. Allen Daniels v. Allen
...of Senior Circuit Judges, 1947, pp. 17—20. The second paragraph of § 2254 has been construed by several courts of appeals. In Ekberg v. McGee, 191 F.2d 625, the Ninth Circuit refused to consider that the statute meant to deny a federal forum where state procedures were inexhaustible. The Th......
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Grandsinger v. Bovey
...Senior Circuit Judges, 1947, pp. 17-20. "The second paragraph of § 2254 has been construed by several courts of appeals. In Ekberg v. McGee, 9 Cir., 191 F.2d 625, the Ninth Circuit refused to consider that the statute meant to deny a federal forum where state procedures were inexhaustible. ......