United States v. Ruthazer, 191

• Decision Date: 17 March 1950
• Docket Number: Docket 21612.,No. 191,191
• Parties: UNITED STATES ex rel. JACKSON v. RUTHAZER, Warden.
• Court: U.S. Court of Appeals — Second Circuit

181 F.2d 588 (1950)

UNITED STATES ex rel. JACKSON v. RUTHAZER, Warden.

No. 191, Docket 21612.

United States Court of Appeals Second Circuit.

Argued March 1, 1950.

Decided March 17, 1950.

Writ of Certiorari Denied June 5, 1950.

Curtis F. McClane, New York City, for appellant.

Frank S. Hogan, Dist. Atty. of New York County, New York City, Whitman Knapp, Peyton Moss, Asst. Dist. Attys., New York City, of counsel, for appellee.

Before L. HAND, Chief Judge, and GOODRICH and FRANK, Circuit Judges.

Writ of Certiorari Denied June 5, 1950. See 70 S.Ct. 1027.

GOODRICH, Circuit Judge.

This is an appeal in a habeas corpus case in which the relator has unsuccessfully appealed to a federal court for a discharge from custody. Jackson, the relator, is an escaped convict from Georgia. He was apprehended in New York State and upon the customary request from Georgia's Governor has been, by the Governor of New York, ordered turned over to the custody of Georgia officers. His appeal for help from a federal court is based upon the allegation that his treatment as a Georgia prisoner was of such brutality as to deprive him of his constitutional rights.

Jackson relies upon the decision of the Court of Appeals for the Third Circuit in Johnson v. Dye, 1949, 175 F.2d 250. The Supreme Court reversed Johnson v. Dye in a summary order. 1949, 338 U.S. 864, 70 S. Ct. 146. We interpret the reversal to indicate that the Supreme Court thought that the relator in that case had not exhausted his state remedies, since Ex parte Hawk, 1944, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572, was cited and the cited opinion bears only on that phase of the case.¹

In this case, however, it appears that relator has exhausted all his state remedies. He applied for habeas corpus in the state courts. After hearing and decision by the trial judge² he appealed to the Appellate Division, which affirmed³ the decision adverse to him in the court below. The Court of Appeals denied him to leave to appeal.⁴ Then he unsuccessfully sought a stay from all the Justices of the Appellate Division of the Supreme Court of New York, First Judicial Department, and, likewise, all of the Justices of the United States Supreme Court who were available. We think the refusal of the stay as described completed the exhaustion of state remedies because, unless a stay was granted by someone having authority to grant it, the relator would certainly have been returned to Georgia and his case would have become moot so far as New York State was concerned.

The case before us does not require us to agree with or disagree with Johnson v. Dye and our decision here is not to be interpreted as a refusal to follow the Third Circuit doctrine expressed in that decision. We have here, however, a perfectly clear distinction between Johnson's case and that of Jackson. For the purpose of this decision we may assume that Johnson v. Dye, except for the exhaustion of state remedies point, was correctly decided.

In this case the relator was given a full hearing on the merits in a court of the State of New York. He told his story at length; he was represented by able counsel. That counsel cross-examined the witnesses for the State of Georgia who appeared and gave their testimony. We find nothing in what is pressed upon us now to indicate that the New York State hearing was not full and fair. We think it was.

In an elaborate opinion the trial judge decided against the relator....