Kelly v. Dowd

Decision Date06 March 1944
Docket Number8377.,No. 8376,8376
Citation140 F.2d 81
PartiesKELLY v. DOWD, Warden (two cases).
CourtU.S. Court of Appeals — Seventh Circuit

Garfield J. Kelly, in pro. per.

James A. Emmert, Atty. Gen., Frank Hamilton, Cleon H. Foust, Frank E. Coughlin, and Joseph W. Hutchinson, Asst. Attys. Gen., for appellee.

Before SPARKS and MAJOR, Circuit Judges, and LINDLEY, District Judge.

Writ of Certiorari Denied March 6, 1944. See 64 S.Ct. 639.

LINDLEY, District Judge.

Petitioner's contention in cause 8377, that the District Court improperly dismissed his petition for a writ of habeas corpus, we think, can not be upheld. Despite his voluminous citation of authority and zealous argument, we see no escape from the rule announced by the Supreme Court in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764; Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927; Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; Beal v. Missouri Pac. R. R. Corp., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577; Reid v. Jones, 187 U.S. 153, 23 S.Ct. 89, 47 L.Ed. 116; Drury v. Lewis, 200 U.S. 1, 26 S.Ct. 229, 50 L.Ed. 343; Urquhart v. Brown, 205 U.S. 179, 27 S.Ct. 459, 51 L.Ed. 760 and followed by this court in such cases as Achtien v. Dowd, Warden, 7 Cir., 117 F.2d 989; Botwinski v. Dowd, Warden, 7 Cir., 118 F. 2d 829; Davis v. Dowd, Warden, 7 Cir., 119 F.2d 338.

Under the established doctrine of those cases it was petitioner's duty to present his application for relief from allegedly illegal restraint of liberty because of a conviction for kidnapping and robbery in the state court to the judicial formus of that state. Though federal courts have authority under existing statutes to discharge upon habeas corpus one held in custody by state authority in violation of the Constitution of the United States, they are under obligation to exercise discretion as to the time and manner in which the power shall be exerted. They will not ordinarily interfere with the normal course of procedure under state authority but rather will leave the applicant to exhaust the remedies afforded by the state for determining whether he is illegally imprisoned. Federal jurisdiction is to be exerted only in exceptional cases involving such an emergency or great urgency as necessitate action to prevent irreparable injury. The jurisdiction to interfere with the proceedings of state governmental bodies charged with the prosecution and punishment of offenders is an exceedingly delicate one to be exercised with the greatest of care and nicest sense of propriety. In the absence of the exceptional circumstances mentioned, a sense of comity and due regard for state jurisdiction demand that the applicant be left to his remedies with the state courts who, no less than those of the United States, are charged with the obligation to recognize and protect his constitutional rights.

But petitioner says that he has lately been denied a writ by the Circuit Court of Vigo County and again by the Circuit Court of LaPorte County and again by the Supreme Court of Indiana, to whom he made application as a court of original jurisdiction. Whether the latter tribunal denied the writ because of lack of jurisdiction to entertain it, is not disclosed. At any rate petitioner has not appealed from either of the Circuit Court decisions, or applied for writ of certiorari from the decision of the Supreme Court of Indiana to the Supreme Court of the United States.

In cause 8376, on March 17, 1943, petitioner filed his petition for a mandatory injunction against the Warden praying that he "be granted his right to receive from an established religion, the Watch Tower Bible and Tract Society, such Bible study helps as are published by said Society so that petitioner can study and determine the will of Jehovah God." His complaint was wholly without averment of fact, contained no statement that he had asked for and been denied the privilege of receiving literature and...

To continue reading

Request your trial
49 cases
  • Roberts v. Pepersack
    • United States
    • U.S. District Court — District of Maryland
    • June 29, 1966
    ...Mo.1964)); if the acts of prison officials are not "reasonably necessary to effectuate the purposes of imprisonment" (Kelly v. Dowd, 140 F.2d 81, 83 (7th Cir. 1944), cert. denied, 321 U.S. 783, 64 S.Ct. 639, 88 L.Ed. 1075 (1944)); "violation of a legal right or an abuse of discretion by pri......
  • Weller v. Dickson
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 29, 1963
    ...1961, 111 U.S.App. D.C. 184, 295 F.2d 171). There is also one case in which a suit by a state prisoner was dismissed. (Kelly v. Dowd, 7 Cir., 1944, 140 F.2d 81). One ground, however, was that suit should have been in the state court, a ground not available in a civil rights case. Taylor v. ......
  • Butler v. Bensinger
    • United States
    • U.S. District Court — Northern District of Illinois
    • June 14, 1974
    ...Morris v. Radio Station WENR, 209 F. 2d 105, 107 (7th Cir. 1953); Siegel v. Ragen, 180 F.2d 785, 788 (7th Cir. 1950); Kelly v. Dowd, 140 F.2d 81, 82 (7th Cir. 1944). We appropriately decline to hear this Allegation B Plaintiff complains that as an outspoken critic of prison abuse, he has be......
  • Gilmore v. People of California
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 4, 2000
    ...F.2d 850, 851-52 (9th Cir.), cert. denied, 342 U.S. 829 (1951); accord Sarshik v. Sanford, 142 F.2d 676 (5th Cir. 1944); Kelly v. Dowd, 140 F.2d 81, 82 (7th Cir. 1944). And as the Supreme Court summed up the Traditionally, federal courts have adopted a broad hands-off attitude toward proble......
  • Request a trial to view additional results
2 books & journal articles
  • The jurisprudence of the PLRA: inmates as "outsiders" and the countermajoritarian difficulty.
    • United States
    • Journal of Criminal Law and Criminology No. 2001, September 2001
    • September 22, 2001
    ...function of federal courts to interfere with the conduct of state officials in carrying out such duties under state law"); Kelly v. Dowd, 140 F.2d 81, 83 (7th Cir. 1944) (commenting that the disputes over the management of state prisons "are questions peculiarly fit to be determined in the ......
  • RLUIPA at four: evaluating the success and constitutionality of RLUIPA'S prisoner provisions.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 28 No. 2, March 2005
    • March 22, 2005
    ...B. MUSHLIN, RIGHTS OF PRISONERS 255 (2d ed. 1993). (12.) Adams v. Ellis, 197 F.2d 483, 485 (5th Cir. 1952). See also Kelly v. Dowd, 140 F.2d 81, 83 (7th Cir. 1944) (holding that because prisoner was incarcerated in a state prison, the reasonableness of the refusal to provide religious mater......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT