Ex parte Darr

• Citation: 77 F. Supp. 553
• Decision Date: 22 April 1948
• Docket Number: Civ. No. 2291.
• Parties: Ex parte DARR.
• Court: U.S. District Court — Eastern District of Oklahoma

77 F. Supp. 553

Ex parte DARR.

Civ. No. 2291.

District Court, E. D. Oklahoma.

April 22, 1948.

John J. Carney, of Oklahoma City, Okl., for petitioner.

Sam Lattimore, Asst. Atty. Gen., for respondent.

RICE, District Judge.

Petitioner's application for a writ of habeas corpus; the response of the Warden of the State Penitentiary to whom the writ was directed; and the evidence introduced upon a hearing in open court all disclose that petitioner is now imprisoned and held in the State Penitentiary pursuant to two judgments and sentences of the District Court of Lincoln County, Oklahoma. He received one sentence after trial and conviction by a jury on a charge of robbery with firearms. The jury by its verdict fixed his penalty at imprisonment for a term of forty years. His other sentence was upon a plea of guilty to a charge of robbery with firearms, and the court assessed the punishment at imprisonment for a term of forty years. Both sentences were pronounced by the court on the same day. Petitioner's conviction by a jury in one case preceded his plea of guilty in the other case. The judge made no provision for the two sentences to be served concurrently. Under the circumstances and according to Oklahoma law, they must be served consecutively, the sentence on the jury verdict being served first. 21 O.S.A. § 61; Ex parte Gilbert, 52 Okl.Cr. 260, 4 P.2d 695. Approximately seven and one-half years have been served.

It would serve no useful purpose herein to relate the facts and circumstances leading up to petitioner's trial and conviction by a jury in one case, or to relate the circumstances which he asserts induced him to plead guilty in the other case. Sufficient it is to say that his petition was adequate to invoke the jurisdiction of this Court to issue the writ. 28 U.S.C.A. § 453. Whether or not this Court may grant relief is another matter.

At the threshold of this case petitioner is confronted with the long and well established rule that a Federal Court will not ordinarily interfere by habeas corpus with the regular course of proceedings under state authority but will leave the applicant for a writ of habeas corpus to exhaust the remedy afforded by the state for determining whether he is illegally restrained of his liberty. Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868; Urquahart v. Brown, 205 U.S. 179, 27 S.Ct. 459, 51 L.Ed. 760; Ex parte Spencer, 228 U.S. 652, 33 S.Ct. 709, 57 L.Ed. 1010.

Repeatedly the Federal Courts have said it is only in special cases of peculiar urgency that the due and orderly administration of justice in a state court will be interfered with. In the absence of such circumstances comity and due regard for state jurisdiction demand that relief by the writ of habeas corpus be left to the state courts who are equally charged with the courts of the United States with recognizing and protecting constitutional rights. Not only must a state prisoner resort to the state court, he must exhaust his remedy there before applying to a Federal Court. And included in the concept of exhausting his remedy in the state court are such remedies as he may have by way of appeal or application for a writ of certiorari to the Supreme Court of the United States. Ex parte Royall, supra; Urquahart v. Brown, supra; Ex parte Spencer, 228 U.S. 652, 33 S.Ct. 709, 57 L.Ed. 1010; Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572; United States ex rel. Murphy v. Murphy, 2 Cir., 108 F.2d 861, certiorari denied Murphy v. Warden of Clinton State Prison, 309 U. S. 661, 60 S.Ct. 583, 84 L.Ed. 1009, Id., 309 U.S. 696, 60 S.Ct. 609, 84 L.Ed. 1036; Hall v. People of California, 9 Cir., 79 F.2d 132; McCauley v. Goldberg, 9 Cir., 91 F.2d 1016, certiorari denied Goldberg v. McCauley, 303 U.S. 636, 58 S.Ct. 522, 82 L.Ed. 1097; United States ex rel. Rogalski v. Jackson, 2 Cir., 146 F.2d 251, certiorari denied 324 U.S. 873, 65 S.Ct. 1011, 89 L.Ed. 1427; Guy v. Utecht, 8 Cir., 144 F.2d 913; Gordon v. Scudder, 9 Cir., 163 F.2d 518, certiorari denied 68 S.Ct. 208; United States ex rel. Jackson v. Brady, 4 Cir., 133 F.2d 476, certiorari denied 319 U.S. 746, 63 S.Ct. 1029, 87 L.Ed. 1702. The rule enunciated above does not apply if the state courts deny at all times all remedies to prisoners imprisoned in violation of the Constitution. Woods v. Nierstheimer, 328 U.S. 211, 66 S.Ct. 996, 90 L.Ed. 1177. But petitioner does not contend that the state courts do not afford him a remedy. Indeed, he could not make such a contention in view of the following: Ex parte Snow, Okl.Cr.App., 183 P.2d 588; Ex parte Clyde Meadows, 70 Okl.Cr. 304, 106 P.2d 139; In re John R. Cook, Okl.Cr.App., 183 P.2d 595; In re Stevens, Okl.Cr.App., 160 P.2d 415; Ex parte Barnett, 67 Okl.Cr. 300, 94 P.2d 18; Ex parte Darr, Okl.Cr.App., 182 P.2d 523. Petitioner, however, does make the allegation that he has exhausted his state remedies. In support of this conclusion he relies upon Ex parte Darr, supra, without any showing or contention that he applied to the Supreme Court for certiorari after the adverse decision upon the federal question involved therein.

A State Court may in a habeas corpus proceeding determine the question of whether or not petitioner's incarceration is in violation of the Federal Constitution. Smith v. O'Grady, Warden, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859. In the early case of Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 342, 79 L.Ed. 791, 98 A.L.R. 406, the Supreme Court said: "Upon the state courts, equally with the courts of the Union, rests the obligation to guard and enforce every right secured by that Constitution". A final judgment of a state court denying release under a writ of habeas corpus is reviewable by certiorari in the Supreme Court of the United States if the decision of the State court is based upon a federal question. Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 637; White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L. Ed. 1348; Canizio v. New York, 327 U.S. 82, 66 S.Ct. 452, 90 L.Ed. 545; Woods v. Nierstheimer, supra. In White v. Ragen, supra 324 U.S. 760, 65 S.Ct. 981, the Supreme Court said: "Where the highest state court in which a decision could be had, considers and adjudicates the merits...