White v. Rhay

• Decision Date: 19 February 1965
• Docket Number: No. 37866,37866
• Court: Washington Supreme Court
• Parties: Application for Writ of Habeas Corpus of Don Anthony WHITE, Petitioner, v. B. J. RHAY, as Superintendent of The Washington State Penitentiary at Walla Walla, Washington, Respondent.

Page 711

65 Wn.2d 711

399 P.2d 522

Application for Writ of Habeas Corpus of Don Anthony WHITE, Petitioner, v. B. J. RHAY, as Superintendent of The Washington State

Penitentiary at Walla Walla, Washington, Respondent.

No. 37866.

Supreme Court of Washington, En Banc.

Feb. 19, 1965.

Appeal from Original Proceeding in this Court, En Banc.

David A. Weyer, James C. Young, Seattle, R. Max Etter, Spokane, for petitioner.

John J. O'Connell, Atty. Gen. Stephen C. Way, Asst. Atty. Gen., Olympia, for respondent.

DONWORTH, Judge.

The history of petitioner's resort to his state remedies in regard to his conviction on two counts of murder is exhaustively and accurately recorded in Judge Hale's separate opinion in this proceeding. We have no disagreement with the factual statements contained therein.

However, a majority of the court is of the opinion that, in view of the unusual circumstances (described below) under which this petition for habeas corpus comes before us, this court presently has no jurisdiction of the subject matter of this proceeding.

We are also of the opinion that, assuming arguendo that this court does have such jurisdiction, it should decline to exercise it because it would be merely rendering an advisory opinion.

I.

Briefly reviewing the procedure in the present case subsequent to our denial of the petitioner's petition for rehearing on March 13, 1963 (with respect to this court's affirmance of his conviction in State v. White, 60 Wash.2d 551, 374 P.2d 942 (1962)), the petitioner:

(1) Petitioned the United States Supreme Court for a writ of certiorari to review our affirmance of his conviction. His petition was denied October 21, 1963, in White v. Washington, 375 U.S. 883, 84 S.Ct. 154, 11 L.Ed.2d 113;

(2) Petitioned this court for a writ of habeas corpus which, after a hearing en banc, was denied on March 19, 1964, in In re White v. Rhay, 64 Wash.Dec.2d 14, 390 P.2d 535;

(3) On March 25, 1964, petitioned the United States District Court for the Eastern District of Washington, Southern Division, fro a writ of habeas corpus, pursuant to 28 U.S.C.A. § 2241 et seq., in which he challenged the validity of the judgment and sentence which had been affirmed by this court in State v. White, supra. The respondent named in the petition was the Superintendent of the Washington State Penitentiary who held the petitioner in his custody. An order to show cause, directed to respondent in the petition, was issued on the same date, March 25, 1964. He appeared in the proceeding through an assistant attorney general and moved to dismiss the petition on the ground that the petitioner had failed to exhaust his state remedies. Of course, all the previously mentioned state proceedings had ended, and no state proceeding was currently pending or in progress. This motion was heard by the Federal District Court on July 31, 1964.

On August 12, 1964, the United States District Court entered an order reading, in part:

'* * * The court having heard the arguments in support of the respondent's motion to dismiss for failure to exhaust state remedies pursuant to 28 USC 2254, and the arguments of the petitioner in opposition thereto; and having read and considered the memoranda of authorities submitted by the respective parties and having reviewed the files and records herein; And the petitioner and the respondent, by and through their respective attorneys, Having agreed that the petitioner be granted the opportunity to make application for a writ of habeas corpus to the Supreme Court of the State of Washington Setting forth such issues therein as are challenged in this cause by the respondent upon the grounds of failure to exhaust state remedies pursuant to 28 USC 2254, as the petitioner shall deem to be appropriate, to be filed in the Supreme Court of the State of Washington not later than August 17, 1964; now, therefore,

'IT IS HEREBY ORDERED, ADJUDGED AND DECREED that all further proceedings in this cause be held in abeyance, subject to the filing by the petitioner, DON ANTHONY WHITE, not later than August 17, 1964 of an application for a writ of habeas corpus in the Supreme Court of the State of Washington and pending the final disposition of the issues therein by the Supreme Court of the State of Washington And subject to the further order of this court.' (Italics ours.)

(The order also stayed the execution of the sentence imposed by the Superior Court for King County until further order of the United States District Court.)

The petitioner then filed a new petition for a writ of habeas corpus in this state supreme court, alleging therein substantially the same matters as were alleged in his petition filed in the district court on March 25, 1964. This petition was heard en banc by this court on October 9, 1964.

Our reasons for stating that this court has no jurisdiction of the subject matter of this proceeding are based principally upon 28 U.S.C.A. § 2243, which directs the manner in which the federal district court is to entertain a petition for a writ of habeas corpus, and 28 U.S.C.A. § 2254, which directs that, in order to entertain the petition in the manner provided for in § 2243, the federal district court shall first decide whether the petitioner has exhausted his state remedies. The requirements of these two statutory sections are discussed in two recent decisions of the United States Supreme Court, interpreting the powers of the federal district court in habeas corpus proceedings under 28 U.S.C.A. § 2241 et seq., with respect to persons convicted of felonies in state courts. They are Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

In Noia, the petitioner had failed to appeal to the highest court in his state from a conviction of murder. His two codefendants had appealed and their convictions were affirmed but they were subsequently freed through federal habeas corpus proceedings because it was found that their confessions had been coerced, and hence their admission in evidence violated their federal constitutional rights.

Noia, in a federal habeas corpus proceeding, was denied relief by the district court because, having failed to appeal his conviction to the state appellate court, he had not exhausted his state remedies under 28 U.S.C.A. § 2254, which provides:

'An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State cour shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State * * *.'

On appeal, the federal court of appeals reversed the district court's order and granted him the relief sought. The United States Supreme Court granted certiorari, and, after an exhaustive review of the history of the writ of habeas corpus in England and in the United States, affirmed the court of appeals.

The majority opinion in Noia is so long that extensive quotation is impractical. We, therefore, will attempt to state in substance the pertinent parts of the decision which seem to us to delineate the powers and duties of federal district courts in passing upon petitions for habeas corpus filed by state prisoners.

(1) The question of whether a state prisoner has exhausted the remedies available to him in the courts of the state is to be determined by the federal district court. The powers of the federal courts in habeas corpus proceedings are based upon the supremacy clause of the United States Constitution and the Act of 1867, as amended (28 U.S.C.A. § 2241 et seq.).

In Noia, it was said, 372 U.S. at page 398, 83 S.Ct. at page 827:

'* * * (1) Federal courts have Power under the federal habeas statute to grant relief despite the applicant's failure to have pursued a state remedy not available to him at the time he applies; the doctrine under which state procedural defaults are held to constitute an adequate and independent state law ground barring direct Supreme Court review is not to be extended to limit the power granted the federal courts under the federal habeas statute. (2) Noia's failure to appeal was not a failure to exhaust 'the remedies available in the courts of the State' as required by § 2254; that requirement refers only to a failure to exhaust state remedies still open to the applicant at the time he files his application for habeas corpus in the federal court. * * *'

(2) Once the federal district court assumes jurisdiction, the jurisdiction is exclusive, under 28 U.S.C.A. § 2243, which reads:

'A court, justice or judge entertaining an application for a writ of habeas corpus Shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, Unless it appears from the application that the applicant or person detained is not entitled thereto. * * * (Then follow paragraphs relevant to the appropriate subject of the order to show cause, the return, and the hearing.)

'The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.' (Italics ours.)

The statute clearly provides only two alternatives. Either the federal district court shall take jurisdiction of the subject matter and hold its hearing so as to try the matter, or it shall dismiss the matter. Nowhere in the statute is there a provision that the federal district court can hold jurisdiction of the subject matter while the parties return any questions raised by the petition to the state supreme court by stipulation of the parties. The statute does not provide for any form of remand of questions to the state supreme court, directly or indirectly.

(3) In the hearing that is required under 28 U.S.C.A. § 2243, the federal district court has the power to take testimony and try the facts anew in order to decide whether a state prisoner has been deprived of a federal constitutional right. The last paragraph of § 2243, as emphasized above,...