Pate v. Holman, 21428.

• Decision Date: 31 March 1965
• Docket Number: No. 21428.,21428.
• Citation: 343 F.2d 546
• Parties: Aubrey PATE, Appellant, v. William C. HOLMAN, Warden, Kilby Prison, Alabama, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

343 F.2d 546 (1965)

Aubrey PATE, Appellant, v. William C. HOLMAN, Warden, Kilby Prison, Alabama, Appellee.

No. 21428.

United States Court of Appeals Fifth Circuit.

March 31, 1965.

Nicholas S. Hare, Montgomery, Ala., for appellant.

Richmond Flowers, Atty. Gen., John C. Tyson, III, Asst. Atty. Gen., Montgomery, Ala., for appellee.

Before RIVES, WISDOM and BELL, Circuit Judges.

WISDOM, Circuit Judge.

The Court has carefully considered the petition for rehearing and its supporting brief. The petition makes an important point with regard to the doctrine of exhaustion of remedies that requires modification of our original decision:

"Perhaps most important of all, and as recognized by this Honorable Court in its opinion of February 16, 1965, the first time the appellant squarely presented the issue of the denial of counsel on original direct appeal within the meaning of Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed. 2d 811, supra, was in the District Court. This was an issue, not passed upon by the United States District Court in its order of December 1963, denying habeas corpus, because it had not been presented in State Court on petition for writ of error coram nobis. * * *"

As a general issue, the effect of the prisoner's lack of appellate counsel was presented in the coram nobis hearing. But the particularized factual issue of indigency and the particularized legal issue of the effect of recent Supreme Court decisions were not raised until the case was in the district court.

The Court remanded the case to the district court for an evidentiary hearing on the following questions:

(1) Was the petitioner an indigent during the period Alabama allows for perfecting an appeal?

(2) If petitioner was indigent, was the indigency the cause of his not obtaining appellate counsel?

(3) Did the petitioner inform the trial judge, the State Attorney General, or the county solicitor, or any other responsible State official of his inability to obtain appellate counsel because of his indigency?

All of the Pate proceedings in the state courts were prior to Douglas v. People of State of California, 372 U.S. 353, 83 S. Ct. 814, 9 L.Ed.2d 811, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, and the other March 18, 1963, decisions of the United States Supreme Court; and prior to Norvell v. State of Illinois, May 27, 1963, 373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456. The petitioner calls to our attention also that the Pate proceedings in the state courts were before the Alabama legislature adopted, in September 1963, a comprehensive post-conviction statute based on the March 18, 1963 decisions. Title 15, sections 380(14)-380(25), Code of Alabama, as Recompiled 1958, as amended 1963, and Title 15, Sections 318(1)-318(11). Code of Alabama, Recompiled 1958, as amended 1963.

In Blair v. People of State of California, 9 Cir. 1965, 340 F.2d 741, the essential facts parallel the facts in the instant case. One of the grounds on which Blair's habeas corpus petition was based was his contention that he was denied appellate counsel. In proper person, he had raised this question, to no avail, on appeal to the California District Court of Appeal and to the California Supreme Court. Judge Hamley, for the Ninth Circuit, pointed out that the decisions of the California courts were prior to Douglas, and that "a procedure is now available to Blair whereby he can have his contention reexamined by the courts of California in the light of the Douglas decision". Accordingly, the court reversed the judgment of the district court and remanded the cause with directions to enter an order holding the proceedings in abeyance to afford Blair a reasonable opportunity, not exceeding ninety days, to apply to the California courts for relief.

The doctrine requiring a state prisoner to exhaust all state remedies as a prerequisite to federal habeas corpus relief is a judge-made doctrine founded on comity and a proper regard for the position of the states in American federalism. Section 2254 of Title 28 is a congressional limitation on federal habeas corpus.¹ It is not an absolute limitation. It is no limitation at all, if "there is either an absence of available state corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." The exhaustion doctrine should not, therefore, be applied mechanically without regard to factual setting. In the circumstances of this case, since there is now available to the prisoner an effective...