Ex parte Hawk. No. —
| Court | United States Supreme Court |
| Writing for the Court | PER CURIAM |
| Citation | 321 U.S. 114,64 S.Ct. 448,88 L.Ed. 572 |
| Parties | Ex parte HAWK. No. —-. On Rule to Show Cause and Return |
| Decision Date | 11 January 1944 |
On Rule to Show Cause and Return
Mr. Henry Hawk, pro se.
Mr. Walter R. Johnson, of Lincoln, Neb., for respondent.
On Rule to Show Cause and Return.
PER CURIAM.
This case comes here on petitioner's application for leave to file in this Court his petition for writ of habeas corpus. Petitioner is confined in the Nebraska State Penitentiary under sentence for murder imposed by the Nebraska District Court.
His present proceeding has been prefaced by several earlier applications to both state and federal courts. His petition for habeas corpus was denied without a hearing
Page 115
by the Nebraska District Court whose decision was affirmed by the Nebraska Supreme Court, Hawk v. O'Grady, 137 Neb. 639, 290 N.W. 911. This Court denied certiorari, 311 U.S. 645, 61 S.Ct. 11, 85 L.Ed. 412. Petitioner then filed in the United States District Court for Nebraska a petition for habeas corpus, alleging matters not previously brought to the attention of the state courts. This application was denied without a hearing, and the Circuit Court of Appeals for the Eighth Circuit affirmed on the ground that petitioner had not exhausted his state remedies, Hawk v. Olson, 130 F.2d 910. We denied certiorari. 317 U.S. 697, 63 S.Ct. 435. Petitioner then urged his present contentions upon the Nebraska Supreme Court in a petition for writ of habeas corpus which that Court denied without opinion. We denied his petition for habeas corpus upon like allegations but without prejudice to presentation of the matters alleged to the United States District Court, Ex parte Hawk, 318 U.S. 746, 63 S.Ct. 979.
Petitioner accordingly renewed his petition for writ of habeas corpus to the United States District Court for Nebraska and filed a like petition with the senior Circuit Judge for the Eighth Circuit; both petitions have been denied, and leave to appeal to the Circuit Court of Appeals for the Eighth Circuit has been denied by the senior Circuit Judge of that circuit. Petitioner thereupon filed the present application in this Court.
In the application now before us, and in those filed with the United States District Court and the senior Circuit Judge of the Eighth Circuit, petitioner alleges, among other things, that the state court forced him into trial for a capital offense, Neb.Comp.Stat. § 28-401, with such expedition as to deprive him of the effective assistance of counsel, guaranteed by the due process clause of the Fourteenth Amendment, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; see Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859; compare Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, and that his conviction was based in part on the intro-
Page 116
duction at the trial of evidence known by the prosecution to be perjured, Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406.
From our examination of the papers presented to us we cannot say that he is not entitled to a hearing on these contentions, Walker v. Johnston, 312 U.S. 275, 284—287, 61 S.Ct. 574, 578, 579, 85 L.Ed. 830; Holiday v. Johnston, 313 U.S. 342, 350, 550, 61 S.Ct. 1015, 1017, 85 L.Ed. 1392; Waley v. Johnston, 316 U.S. 101, 104, 105, 62 S.Ct. 964, 965, 966, 86 L.Ed. 1302; Cochran v. Kansas, 316 U.S. 255, 258, 62 S.Ct. 1068, 1070, 86 L.Ed. 1453. But, as was pointed out by the District Court and Circuit Judge, petitioner has not yet shown that he has exhausted the remedies available to him in the state courts, and he is therefore not at this time entitled to relief in a federal court or by a federal judge.
So far as appears, petitioner's present contentions have been presented to the state courts only in an application for habeas corpus filed in the Nebraska Supreme Court, which it denied...
To continue reading
Request your trial
-
Edwards v. Schmidt, No. 70-C-97.
...has been with friction between themselves and state courts in the administration of criminal law. This was explicit in Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572 (1944),5 where the Court "The denial of relief to petitioner by the federal courts and judges in this, as in a numbe......
-
Burns v. Lovett, No. 11419
...United States ex rel. Innes v. Hiatt, supra note 26, 141 F.2d at page 666. 30 1947, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982. 31 1944, 321 U.S. 114, 116-117, 64 S.Ct. 448, 88 L.Ed. 32 See Frank v. Mangum, 1915, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969; Moore v. Dempsey, 1923, 261 U.S. 86,......
-
Carter v. Estelle, No. 80-1981
...of the claim presented; state remedies held not exhausted where claim could be raised on normal post-trial direct appeal); Ex parte Hawk, 321 U.S. 114, 116, 64 S.Ct. 448, 449, 88 L.Ed. 572 (1944) (application for extraordinary writ did not serve to exhaust state remedies where normal state ......
-
United States ex rel. Townsend v. Twomey, No. 71-1074.
...Baldwin, supra. Here, however, we find those considerations overcome by the "exceptional circumstances" of this case. See Ex parte Hawk, 321 U.S. 114, 117, 64 S.Ct. 448, 88 L.Ed. 572 The Townsend case has been in both state and federal courts for over sixteen years. During all of those year......
-
Edwards v. Schmidt, No. 70-C-97.
...has been with friction between themselves and state courts in the administration of criminal law. This was explicit in Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572 (1944),5 where the Court "The denial of relief to petitioner by the federal courts and judges in this, as in a numbe......
-
Burns v. Lovett, No. 11419
...United States ex rel. Innes v. Hiatt, supra note 26, 141 F.2d at page 666. 30 1947, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982. 31 1944, 321 U.S. 114, 116-117, 64 S.Ct. 448, 88 L.Ed. 32 See Frank v. Mangum, 1915, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969; Moore v. Dempsey, 1923, 261 U.S. 86,......
-
Carter v. Estelle, No. 80-1981
...of the claim presented; state remedies held not exhausted where claim could be raised on normal post-trial direct appeal); Ex parte Hawk, 321 U.S. 114, 116, 64 S.Ct. 448, 449, 88 L.Ed. 572 (1944) (application for extraordinary writ did not serve to exhaust state remedies where normal state ......
-
United States ex rel. Townsend v. Twomey, No. 71-1074.
...Baldwin, supra. Here, however, we find those considerations overcome by the "exceptional circumstances" of this case. See Ex parte Hawk, 321 U.S. 114, 117, 64 S.Ct. 448, 88 L.Ed. 572 The Townsend case has been in both state and federal courts for over sixteen years. During all of those year......
-
The Supreme Court as Protector of Civil Rights: Criminal Justice
...by they highest that Hawk had not followed the correct state court of that state.2 2 Even when procedure ( Ex grave parte Hawk, 321 U. S. 114- constitutional issues 1944) and then, when he adopted its are involved in a tion, ruled that he was entitled to a hearing case which arises in a sta......