Herzog v. Colpoys

• Decision Date: 11 May 1944
• Docket Number: No. 8701.,8701.
• Parties: HERZOG v. COLPOYS
• Court: U.S. Court of Appeals — District of Columbia Circuit

79 US App. DC 81, 143 F.2d 137 (1944)

HERZOG v. COLPOYS

No. 8701.

United States Court of Appeals District of Columbia.

Decided May 11, 1944.

Mr. James J. Laughlin, of Washington, D. C., for appellant.

Mr. Charles B. Murray, Assistant United States Attorney, of Washington, D. C., with whom Messrs. Edward M. Curran, United States Attorney, and John L. Ingoldsby, Jr., Assistant United States Attorney, both of Washington, D. C., were on the brief, for appellee.

Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices.

MILLER, Associate Justice.

In 1934, appellant was convicted of robbery in Maryland and sentenced to serve ten years in the penitentiary of that State. In 1937, the Governor released him, in custody of the State Parole Commissioner, upon a conditional pardon. In 1942, the Governor revoked the pardon and ordered appellant recommitted. In August, 1943, appellant filed a petition for writ of habeas corpus in the Circuit Court for Prince Georges County, Maryland; which writ was granted; appellant was discharged; and the law of Maryland under which he had been recommitted was held, by that court, to be unconstitutional. On November 10, 1943, the Maryland Court of Appeals reversed the decision of the Circuit Court. In the meantime, on September 24, 1943, appellant had been taken into custody by District of Columbia police officers for violation of laws of the District. On November 4, 1943, a warrant was issued by the Governor of Maryland for the arrest of appellant. On November 15, 1943, appellant was arrested in the District of Columbia upon a fugitive warrant pursuant to the law of the District.¹ Thereupon he sought a writ of habeas corpus in the District Court; his petition was dismissed and this appeal followed. Here he seeks to challenge the power of Maryland's Governor to revoke the conditional pardon. He contends that the Maryland statute, which makes the Governor sole judge whether the conditions of a conditional pardon have been violated, and without notice or hearing, is unconstitutional. He contends, further, that he has exhausted the remedies available to him in the Maryland courts; hence that he is entitled to relief in the federal courts.

Appellant's contentions are without merit. The Maryland Court of Appeals has decided that the applicable statute is constitutional.² We are bound by that decision³ at least to the extent that the contention concerns the Maryland Constitution. On the other hand, to the extent that it hypothesizes a violation of the United States Constitution, his remedy was to challenge the Maryland court's decision in the Supreme Court of the United States. Ordinarily, an application for habeas corpus, by one detained under a state court judgment of conviction of crime, will be entertained by a federal court only after all state remedies available, including all appellate remedies in the state courts and in the Supreme Court of the United States, have been exhausted.⁴ In Wright v. Herzog,⁵ the Maryland Court of Appeals stated that the action of the Governor, in revoking a conditional pardon, can be challenged by a showing of capriciousness and arbitrariness, and spelled out specifically just how such a showing can be made in a habeas corpus proceeding. In the present case, no showing has been made that the remedies available in Maryland under that decision have been exhausted. For both the foregoing reasons, therefore, appellant had no standing in the District Court. Under the circumstances, his detention by appellee pending receipt of a requisition from the Governor of Maryland was fully authorized and the District Court properly dismissed his petition.

Affirmed.

1 D.C.Code (1940) § 23 — 403, 45 Stat. 440, § 1.

2 Wright v. Herzog, ___ Md. ___, 34 A.2d 460.

3 Erie R. R. v. Tompkins, 304 U.S. 64, 71, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; West v. American Tel. & Tel. Co., 311 U.S. 223, 228, 61 S.Ct. 179, 85 L.Ed. 139, 132 A.L.R. 956; Post v. Supervisors, 105 U.S. 667, 669, 26 L.Ed. 1204; Buchanan v. Blitch, 5 Cir., 57 F.2d 668; Meredith v. Board of Public Instruction, 5 Cir., 112 F.2d 914; In re Mifflinburg Body Co., 3 Cir., 127 F.2d 59, 142 A.L.R. 1153.

4 Ex parte Hawk, 321 U.S. 114, 118, 64 S.Ct. 448, 450, and authorities there cited: "Where the state courts have considered and adjudicated the merits of his contentions, and this Court has either reviewed or declined to review the state court's decision, a ...