Hawk v. Olson

• Decision Date: 05 June 1946
• Docket Number: Civil Action No. 549.
• Citation: 66 F. Supp. 195
• Parties: HAWK v. OLSON, Warden.
• Court: U.S. District Court — District of Nebraska

66 F. Supp. 195

HAWK v. OLSON, Warden.

Civil Action No. 549.

District Court, D. Nebraska, Lincoln Division.

June 5, 1946.

C. E. Sanden, of Lincoln, Neb., for petitioner, by appointment of the court.

Walter R. Johnson, Atty. Gen. of Nebraska, Robert A. Nelson, Asst. Atty. Gen. of Nebraska, and H. Emerson Kokjer, Deputy Atty. Gen. of Nebraska, for respondent.

DELEHANT, District Judge.

The vital question of this court's jurisdiction is the subject of this memorandum in a proceeding instituted here by the petitioner to obtain his release from the Nebraska state penitentiary in which he is, and for nearly ten years has been, confined under state process pursuant to a sentence and commitment of the District Court of Douglas County, Nebraska. His petition, tendered to the court somewhat earlier, was filed on March 26, 1946, in accordance with an order granting him leave to proceed in this court in forma pauperis and designating counsel to represent him.

Reflecting an acknowledged doubt on the court's part, respecting jurisdiction, that order directed that cause be shown why a writ should not issue, and contained the following paragraph:

"That the respondent be and he hereby is ordered to show cause in writing duly served on the attorney for the petitioner and filed herein on or before April 15, 1946 (or if an amended petition be filed by the petitioner, in pursuance of the permission foreshadowed by the last preceding paragraph, then on or before the 14th day after the filing herein of said amended petition) why a Writ of Habeas Corpus should not be issued as prayed, setting out in his return hereto an adequate showing as to the legal authority, if any, under which the petitioner is held in custody with any pertinent facts showing the lawful justification for such custody; that in and as a part of said showing of cause, the respondent is ordered specifically, but not exclusively or by way of limitation, to address himself to the question of this court's jurisdiction insofar as, and to the extent that, such jurisdiction is dependent upon the exhaustion by the petitioner of the remedies accorded to him under the laws of the state of Nebraska, and, if in that behalf the respondent shall contend that the petitioner has not exhausted the remedies available to him in the state courts of Nebraska, to set out specifically what procedure or remedy is available to the petitioner which he has not exhausted; and if the respondent shall contend that the writ of error coram nobis is available to the petitioner, to allege and set out whether, under the laws and in the procedure of the state of Nebraska, the statute of limitations bars the petitioner from obtaining relief in the way of such writ;"

The Attorney General of Nebraska as counsel for the respondent, by way of response, tendered a showing of cause dealing solely with the merits of the petitioner's claim, and taking no position upon the issue of jurisdiction or upon the underlying question of the petitioner's previous exhaustion of the remedies available to him under the laws of Nebraska. That action on his part was not censurable, regardless of the opinion, if any, upon the jurisdictional question which he may have entertained.

The court, thereupon, being satisfied, first, that Hawk v. Olson, 66 S.Ct. 116, 90 L.Ed. ___, had conclusively determined in the petitioner's favor, the adequacy of his averments in his present petition (essentially indistinguishable from those before the Supreme Court of the United States in Hawk v. Olson, supra) to support a hearing upon their merits in the proper court; and secondly, that Hawk v. Olson, Neb., 22 N.W.2d 136, with equal finality had determined that habeas corpus is not the proper remedy within the Nebraska practice to present the issues on which he basically relies; and, being tentatively of the opinion (vide infra) that, in the light of the probably pertinent decisions of Nebraska's Supreme Court, the petitioner was necessarily beyond the protection of the writ of error coram nobis, or of a statutory application for a new trial after adjournment of the term in which he was convicted (neither of which the petitioner claims ever to have sought in the state courts), resolved in the petitioner's favor its then existing doubts upon the last point and granted a writ returnable at 9:30 a. m., on April 29, 1946. Imperative commitments of the court and counsel prompted counsel to request, and the court to confirm, June 12, 1946, as the date for the trial upon the merits of the writ. No other presently essential feature is involved in the several filings in the case itself.

But an intervening deliverance by the Supreme Court of the United States, Woods v. Neirstheimer, 66 S.Ct. 996, sharply challenged the validity of this court's thinking especially upon the inevitable unavailability to the petitioner of a remedy by way of a writ of error coram nobis and the impact upon present jurisiction of his failure to seek such relief; and prompted this court on May 29, 1946, first informally, and then by formal order, to invite written briefs, and order oral argument, upon that question. Such briefs have been filed and examined; and the argument has been had and fully considered.

It is wholly unnecessary in the present setting to review the long and perplexing record of the petitioner's efforts to obtain release from his current imprisonment. Nor would it be instructive. The ensuing discussion will mention only those recent rulings in his behalf which seem to have direct bearing upon the now narrowed issue of jurisdiction.

The United States District Court has such jurisdiction only as has been committed to it by statute. Accordingly, its first inquiry in a suit is usually into its own jurisdiction. All too frequently, the failure earnestly and accurately to prosecute that inquiry results in embarrassing and expensive dismissals by the Circuit Court of Appeals or even the Supreme Court for a fatal want of jurisdiction in the court of first impression. And it is not otherwise in proceedings for writs of habeas corpus. Hawk v. Olson, 8 Cir. 130 F.2d 910; Ex parte Hawk 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572.

In Ex parte Hawk, supra, the Supreme Court of the United States denied an application by the present petitioner for leave to file in that court an original petition for writ of habeas corpus. It placed its denial primarily upon the ground that he had not yet shown that he had exhausted the remedies available to him in the state courts. But it went even farther and declared that in default of such a showing he was not at that time (i. e. as of January 31, 1944) entitled to relief in a federal court or by a federal judge (321 U.S. at page 116, 64 S.Ct. 448, 88 L.Ed. 572). The court thereby denied not only the then sought immediate recourse to itself, but also the existence of the procedural history prerequisite to the valid jurisdiction of this court. It reiterated that position in the following language:

"Ordinarily an application for habeas corpus by one detained under a state court judgment of conviction for crime will be entertained by a federal court only after all state remedies available, including all appellate remedies of the state courts and in this Court by appeal or writ of certiorari, have been exhausted." 321 U.S. at pages 116, 117, 64 S.Ct. at pages 450, 88 L.Ed. 572.

The high court also set out what it then conceived to be the remedies of which the petitioner might — and should — avail himself under the laws of Nebraska. It said, also on page 116 of Vol. 321 U.S., on page 449 of 64 S.Ct., 88 L.Ed. 572:

"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 without opinion. From other opinions of that court it appears that it does not usually entertain original petitions for habeas corpus, but remits the petitioner to an application to the appropriate district court of the state, from whose decision an appeal lies to the state Supreme Court, Williams v. Olson, 143 Neb. 115, 8 N.W.2d 830, 831; see In re White, 33 Neb. 812, 814, 815, 51 N.W. 287. From that court the cause may be brought here for review if an appropriate federal question is properly presented.

"Of this remedy in the state court petitioner has not availed himself. Moreover, Nebraska recognizes and employs the common law writ of error coram nobis which, in circumstances in which habeas corpus will not lie, may be issued by the trial court as a remedy for infringement of constitutional right of the defendant in the course of the trial, Carlsen v. State, 129 Neb. 84, 94-99, 261 N.W. 339. Until that remedy has been sought without avail we cannot say that petitioner's state remedies have been exhausted."

Omitting now a petition shortly thereafter addressed to this court, which was immediately rejected upon the authority of the language of the Supreme Court already quoted, the petitioner next sought relief by way of habeas corpus in the District Court of Lancaster County, Nebraska, within which county he is confined. Upon dismissal of his petition without the issuance of a writ, he appealed to the Supreme Court of Nebraska, which affirmed the dismissal. Hawk v. Olson, 145 Neb. 306, 16 N.W.2d 181. By certiorari, Hawk v. Olson, 324 U.S. 839, 65 S.Ct. 1021, 89 L.Ed. 1402, he obtained a review of that affirmance by the Supreme Court of the United States.

On November 13, 1945, the United States Supreme Court, still considering that, in the Nebraska courts, habeas corpus was an appropriate remedy for the redress of the petitioner's alleged wrongs, reversed the Nebraska Supreme Court's ruling and remanded the case for hearing upon its merits in Nebraska's trial court. Hawk v. Olson, 66 S.Ct. 116, 120, 90 L.Ed. ___. It did not then concern itself directly with federal jurisdiction except by way of certiorari, for it was reviewing a...