Wilwording v. Swenson 8212 5308, No. 70

CourtUnited States Supreme Court
Writing for the CourtPER CURIAM; BLACKMUN; BURGER
Citation404 U.S. 249,30 L.Ed.2d 418,92 S.Ct. 407
PartiesAlan Daniel WILWORDING et al. v. Harold R. SWENSON, Warden. —5308
Docket NumberNo. 70
Decision Date14 December 1971

404 U.S. 249
92 S.Ct. 407
30 L.Ed.2d 418
Alan Daniel WILWORDING et al.

v.

Harold R. SWENSON, Warden.

No. 70—5308.
Dec. 14, 1971.

PER CURIAM.

On the ground that they challenged only their living conditions and disciplinary measures while confined in maximum security at Missouri State Penitentiary, and did not seek their release, petitioners' state habeas corpus petitions were dismissed. The Missouri Supreme Court affirmed. Petitioners then sought federal habeas corpus in the District Court for the Western District of Missouri. The District Court dismissed the petitions, 331 F.Supp. 1188, and the Court of Appeals for the Eighth Circuit affirmed, 439 F.2d 1331. Although petitioners had exhausted state habeas relief the Court of Appeals agreed with the District Court that the requirements of 28 U.S.C. § 2254 had not been satisfied because petitioners had not invoked any of a number of possible alternatives to state habeas including 'a suit for injunction, a writ

Page 250

of prohibition, or mandamus or a declaratory judgment in the state courts,' or perhaps other relief under the State Administrative Procedure Act. Id., at 1336.

I

Section 2254 does not erect insuperable or successive barriers to the invocation of federal habeas corpus. The exhaustion requirement is merely an accommodation of our federal system designed to give the State an initial 'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights. Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837 (1963). Petitioners are not required to file 'repetitious applications' in the state courts. Brown v. Allen, 344 U.S. 443, 449 n. 3, 73 S.Ct. 397, 403, 97 L.Ed. 469 (1953). Nor does the mere possibility of success in additional proceedings bar federal relief. Roberts v. LaVallee, 389 U.S. 40, 42—43, 88 S.Ct. 194, 196—197, 19 L.Ed.2d 41 (1967); Coleman v. Maxwell, 351 F.2d 285, 286 (CA6 1965). Whether the State would have heard petitioner's claims in any of the suggested alternative proceedings is a matter of conjecture; certainly no available procedure was indicated by the State Supreme Court in earlier cases. See McMichaels v. Hancock, 428 F.2d 1222, 1223 (CA1 1970). Furthermore, we are not referred to a single instance, regardless of the remedy invoked, in which the Missouri courts have granted a hearing to state prisoners on the conditions of their confinement. In these circumstances § 2254 did not require petitioners to pursue the suggested alternatives as a prerequisite to taking their claims to federal court. As Mr. Justice Rutledge stated in his concurrence in Marino v. Ragen, 332 U.S. 561, 568, 68 S.Ct. 240, 244, 92 L.Ed. 170 (1947):

'The exhaustion-of-state-remedies rule should not be stretched to the absurdity of requiring the exhaustion of * * * separate remedies when at the outset a petitioner cannot intelligently select the proper way, and in conclusion he may find only that none of the (alternatives) is appropriate or effective.'

Page 251

II

Moreover, although cognizable in federal habeas corpus, see Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), petitioners' pleading may also be read to plead causes of action under the Civil Rights Acts, 42 U.S.C. § 1983, and 28 U.S.C. §§ 1343(3) and 1343(4), for deprivation of constitutional rights by prison officials. As to like actions, in an exhaustive opinion in Jackson v. Bishop, 404 F.2d 571 (CA8 1968), Mr. Justice (then Judge) Blackmun stated:

'These actions were instituted in 1966 by...

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  • Washington v. James, No. 525
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 29, 1993
    ...the trial judge's agency instruction was constitutionally infirm and deprived him of due process of law. See Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 30 L.Ed.2d 418 (1971) (per curiam). Washington's argument both before the Appellate Division and in his application for l......
  • Jackson v. Johnson, No. 97 Civ. 1592(LAK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 23, 1998
    ...Section 1983 action to recover damages for injuries sustained while placed in solitary confinement as a disciplinary measure). 33. 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971) (per curiam) (allowing prisoner's habeas and Section 1983 challenge to disciplinary measures and living condit......
  • Kahane v. Carlson, No. 274
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 26, 1975
    ...1827, the earlier cases cited by him, Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), and Wilwording v. Swenson, 404 U.S. 249, 251, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971), betrayed no uncertainty on Page 499 the point. See also Developments in the Law--Federal Habeas Corpu......
  • Cruz v. Alexander, No. 77 Civ. 5976 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 12, 1979
    ...assertion by Cruz of his rights is sufficient to meet the exhaustion requirement. As the Supreme Court stated in Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 409, 30 L.Ed.2d 418 (1971), "Section 2254 does not erect insuperable or 477 F. Supp. 522 successive barriers to the i......
  • Request a trial to view additional results
1018 cases
  • Washington v. James, No. 525
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 29, 1993
    ...the trial judge's agency instruction was constitutionally infirm and deprived him of due process of law. See Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 30 L.Ed.2d 418 (1971) (per curiam). Washington's argument both before the Appellate Division and in his application for l......
  • Jackson v. Johnson, No. 97 Civ. 1592(LAK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 23, 1998
    ...Section 1983 action to recover damages for injuries sustained while placed in solitary confinement as a disciplinary measure). 33. 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971) (per curiam) (allowing prisoner's habeas and Section 1983 challenge to disciplinary measures and living condit......
  • Kahane v. Carlson, No. 274
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 26, 1975
    ...1827, the earlier cases cited by him, Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), and Wilwording v. Swenson, 404 U.S. 249, 251, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971), betrayed no uncertainty on Page 499 the point. See also Developments in the Law--Federal Habeas Corpu......
  • Cruz v. Alexander, No. 77 Civ. 5976 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 12, 1979
    ...assertion by Cruz of his rights is sufficient to meet the exhaustion requirement. As the Supreme Court stated in Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 409, 30 L.Ed.2d 418 (1971), "Section 2254 does not erect insuperable or 477 F. Supp. 522 successive barriers to the i......
  • Request a trial to view additional results

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