Schwein v. Olson, Civil Action No. 251.

• Decision Date: 10 October 1944
• Docket Number: Civil Action No. 251.
• Citation: 56 F. Supp. 993
• Parties: SCHWEIN v. OLSON, Warden.
• Court: U.S. District Court — District of Nebraska

56 F. Supp. 993

SCHWEIN v. OLSON, Warden.

Civil Action No. 251.

District Court, D. Nebraska, Lincoln Division.

October 10, 1944.

Carl Schwein, petitioner, pro se.

DELEHANT, District Judge.

The petitioner, who has been allowed to file his pleadings and to proceed here in forma pauperis, seeks from this court a writ of habeas corpus for his release from the Nebraska state penitentiary in which he alleges that he is serving a sentence under judgment and commitment of the District Court of Douglas County, Nebraska, made and given upon his plea of guilty to a charge against him of grand larceny. His petition must be denied without either the issuance of a writ or the entry of an order to show cause against such issuance. For it appears from the petition itself that he is not presently entitled to the relief he seeks. 28 U.S.C.A. § 455.

It is true that in his pleading the petitioner charges certain misconduct towards him on the part of the public authorities antedating and underlying his plea of guilty, in consequence of which, as well as for other reasons, he contends that the sentencing state court was without jurisdiction over him. Whether the alleged facts, in another procedural context, might support the issuance of a writ, need not be considered, and should not, and will not, be discussed. The petitioner does not claim in his petition that he has ever sought the aid of the state courts of Nebraska for his present purpose. Not content with silence upon that point, which would be fatal to his petition, he explicitly negatives recourse by him to the state courts, and attempts to justify the omission by this language: "Petitioner is excused from his failure to exhaust his remedies in the state courts for the reason that no remedies are afforded him under the decisions of the Supreme Court of Nebraska, and being remediless in the state courts, such exceptional circumstances of peculiar urgency exist as to require the intervention of the Federal Courts. Ex parte Henry Hawk, 321 U.S. 114 64 S.Ct. 448."

But Ex parte Henry Hawk, 321 U.S. 114, 116, 117, 64 S.Ct. 448, 88 L.Ed. ___, upon which he thus relies, emphatically rejects the petitioner's claim upon this court's action. It both points out accurately the procedural steps available to him in Nebraska's jurisprudence, and emphasizes the imperative necessity that they be pursued in such a case as this as a condition prerequisite to recourse to this forum. The asserted unavailability of the writ of habeas corpus in the state courts of Nebraska is simply untrue and unfounded. It is true that many persons, in consequence of thwarting factual settings have sought the writ there unsuccessfully. But their failure was never attributable to the failure of Nebraska law to provide for the writ. See Chapter 29, Article 28 C.S.Neb.1929.

Upon the relief available to the petitioner in the state courts, the Supreme Court of the United States in Ex parte Henry Hawk, supra, said, 321 U.S. at page 116, 64 S.Ct. at page 449, "* * * it (the Nebraska Supreme Court) does not usually entertain original petitions for habeas corpus, but remits the...