White v. Swenson

• Decision Date: 17 November 1966
• Docket Number: No. 1135.,1135.
• Citation: 261 F. Supp. 42
• Parties: Charles Herbert WHITE, Petitioner, v. Harold SWENSON, Warden, Respondent.
• Court: U.S. District Court — Western District of Missouri

261 F. Supp. 42

Charles Herbert WHITE, Petitioner, v. Harold SWENSON, Warden, Respondent.

No. 1135.

United States District Court W. D. Missouri, Central Division En Banc.

November 2, 1966.

Addendum November 17, 1966.

COPYRIGHT MATERIAL OMITTED

Charles Herbert White, pro se.

Norman Anderson, Atty. Gen., for defendant.

Before WILLIAM H. BECKER, Chief Judge and JOHN W. OLIVER, WILLIAM R. COLLINSON and ELMO B. HUNTER, District Judges.

MEMORANDUM OPINION OF COURT EN BANC AND ORDER

JOHN W. OLIVER, District Judge.

This habeas corpus petition, filed by a state convict in the Missouri Penitentiary, vividly illustrates the need of understanding when this Court may do anything except deny a petition for federal habeas corpus without prejudice in order that a particular state prisoner may exhaust his post conviction remedies available in the courts of Missouri.

Because various facets of the general problem of state and federal court jurisdiction are frequently presented to this Court we shall state in some detail in this memorandum opinion of this Court en banc the principles that control the exercise of our federal habeas corpus jurisdiction.

I. Doctrine of Federal Abstention as Codified in Section 2254, Title 28, United States Code.

Section 2254, of Title 28, United States Code, expressly provides that:

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

An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.

That section must be read in light of the Judiciary Act of February 5, 1867, "which first extended federal habeas corpus to state prisoners generally, and which survives, except for some changes in wording, in the present statutory codification," Fay v. Noia, 372 U.S. 391 at 415, 83 S.Ct. 822, 836, 9 L.Ed.2d 837 (1963). The history and development of federal habeas corpus is reviewed in infinite detail on pages 415 to 426 of 372 U.S. of that case.

Fay v. Noia stated that there was "nothing to suggest that the Federal District Court lacked the power to order Noia a State convict discharged because of a procedural forfeiture he may have incurred under state law" (372 U.S. at 426, 83 S.Ct. at 842, emphasis the Court's). That case added: "On the contrary, the nature of the writ at common law, the language and purpose of the Act of February 5, 1867, and the course of decisions in this Court extending over nearly a century are wholly irreconcilable with such a limitation" (372 U.S. at 426, 83 S.Ct. at 842). In summation, the Supreme Court held:

Congress in 1867 sought to provide a federal forum for state prisoners having constitutional defenses by extending the habeas corpus powers of the federal courts to their constitutional maximum. Obedient to this purpose, we have consistently held that federal court jurisdiction is conferred by the allegation of an unconstitutional restraint and is not defeated by anything that may occur in the state court proceedings. State procedural rules plainly must yield to this overriding federal policy. (372 U.S. at 426-427, 83 S.Ct. at 842).

Fay v. Noia included a full discussion of the entirely different question of when and under what circumstances such unquestioned power should be exercised. That case carefully traced the development of the doctrine of federal abstention, now codified in Section 2254. It pointed out that at least as early as 1886 the Supreme Court had unanimously held in Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that while there could be no question but that "the federal courts had the power to discharge a state prisoner restrained in violation of the Federal Constitution, * * * that ordinarily the federal court should stay its hand on habeas pending completion of the state court proceedings" (372 U.S. at 418, 83 S.Ct. at 837, emphasis the Court's).

Ex parte Royall established eighty years ago that the Congressional command that federal courts hear a habeas corpus case summarily "does not deprive the court of discretion as to the time and mode in which it will exert the powers conferred upon it" (117 U.S. at 251, 6 S.Ct. at 740). Mr. Justice Harlan, writing for a unanimous court in 1886, added:

That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the states, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the constitution. (117 U.S. at 251, 6 S.Ct. at 740).

Fay v. Noia also quoted from Cook v. Hart, 146 U.S. 183 at 194, 13 S.Ct. 40, 36 L.Ed. 934, decided in 1892, to the effect that "while the federal courts have the power and may discharge the accused * * * if he is restrained of his liberty in violation of the federal constitution or laws * * * the practice of exercising such power before the question has been raised or determined in the state court is one which ought not be encouraged" (372 U.S. at 418, 83 S.Ct. at 838). Numerous other Supreme Court decisions to the same effect are cited in footnote 28 on page 419 of 372 U.S., 83 S.Ct. 822.

Fay v. Noia, in direct line with the cases just cited, held:

These decisions fashioned a doctrine of abstention whereby full play would be allowed the States in the administration of their criminal justice without prejudice to federal rights enwoven in the state proceedings. * * With refinements, this doctrine requiring the exhaustion of state remedies is now codified in 28 U.S.C. § 2254. (372 U.S. at 419, 83 S.Ct. at 838).

And see further page 437-438 of 372 U.S., page 848 of 83 S.Ct., where Fay v. Noia held:

The requirement that the habeas petitioner exhaust state court remedies available to him when he applies for federal habeas corpus relief gives state courts the opportunity to pass upon and correct errors of federal law in the state prisoner's conviction.

The fact that a federal court under Section 2254 may exercise broad discretion as to the time and mode of the exercise of its habeas corpus power does not mean that a particular petitioner may not later return to the federal court after his available state court remedies have in fact been exhausted. He may also invoke federal habeas corpus jurisdiction upon a factual showing, in the express language of Section 2254, that "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." As stated in Fay v. Noia:

The reason of Ex parte Royall and its progeny suggested that after the state courts had decided the federal question on the merits against the habeas petitioner, he could return to the federal court on habeas and there relitigate the question, else a rule of timing would become a rule circumscribing the power of the federal courts on habeas, in defiance of unmistakable congressional intent. (372 U. S. at 420, 83 S.Ct. at 839, emphasis ours).

II. Circumstances Under Which Exercise of Federal Habeas Corpus Jurisdiction Is Mandatory.

All that has been said in regard to Section 2254 must be read in light of the teaching of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770, another of the trilogy decided in 1963. No discretion whatever is vested in a federal court to refuse a full evidentiary hearing in a state prisoner habeas corpus case under particular factual circumstances.

Townsend v. Sain held that "where an applicant for a writ of habeas corpus alleges facts which, if proved would entitle him to relief, the federal court to which the application is made has the power to receive evidence and try the facts anew" (372 U.S. at 312, 83 S.Ct. at 757, emphasis ours). Indeed, as part III of that opinion makes crystal clear, a federal district court has no choice in particular factual situations involving state prisoner habeas cases; it is placed under mandatory duty to act. The Supreme Court held:

We turn now to the considerations which in certain cases may make exercise of that power mandatory. The appropriate standard * * * is this: Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state court trier of fact has after a full hearing reliably found the relevant facts. (372 U.S. at 312-313, 83 S.Ct. at 757, emphasis ours).

On page 313 of 372 U.S., page 757 of 83 S.Ct., the Supreme Court added:

We hold that a federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.

Each of those six factual situations are developed in detail on pages 313 to 318 of 372...