Warren v. Connor
| Citation | 365 F.2d 590 |
| Decision Date | 29 August 1966 |
| Docket Number | No. 21853.,21853. |
| Parties | James WARREN et al., Appellants, v. Richard A. CONNOR, Sheriff, City Court of Savannah, et al., Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Howard Moore, Jr., Atlanta, Ga., Jack Greenberg, Charles H. Jones, Jr., New York City, James M. Nabrit, III, New York City, Sheila Rush, New York City, of counsel, for appellants.
Peyton S. Hawes, Jr., Albert Sidney Johnson, Asst. Attys. Gen., Atlanta, Ga., John W. Sognier, Savannah, Ga., Eugene Cook, Atty. Gen., Atlanta, Ga., for appellees.
Before BROWN, WISDOM, and THORNBERRY, Circuit Judges.
The only significant procedural difference between this case and Tolg v. Grimes, 5 Cir., 1966, 355 F.2d 92, cert. denied, 384 U.S. 988, 86 S.Ct. 1887, 16 L.Ed.2d 1005 June 13, 1966, is that here, instead of assuming jurisdiction to decide the substantive legal and factual issues presented by Appellants' petitions for habeas corpus, the District Court, adopting the contention of the State authorities, dismissed the petitions on the ground that Appellants had failed to exhaust available State remedies. In Tolg we held that "the passage of the Civil Rights Act of 1964, given the retroactive effect that was given it by Hamm v. City of Rock Hill, South Carolina, 1964, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300, required the invalidation by a Federal Court on petition for habeas corpus of a State Court conviction under an anti-trespass statute, invoked by a proprietor for the purpose of preventing access to his restaurant by persons on account of race." Before reaching this result, however, we considered the matter of exhaustion of state remedies and concluded that the District Court there had properly assumed jurisdiction to pass on the merits of the petition. The circumstances which compelled us to this conclusion are likewise present here, including the State's waiver of the failure to exhaust state remedies, or more appropriately, the State's candid recognition of the uncertainty of the availability of state remedies. Although in its brief and oral argument before the Court in this case the State vigorously asserted Appellants' failure to exhaust state remedies, the State Attorney General, in a formal postsubmission communication to the Court, responded to a specific inquiry from the bench as to what would occur were we to affirm thus sending petitioner back to the State Court. He frankly stated that "in both Tolg and Warren, we could not...
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