Stibolt, Thomas B.

English

Northwestern University Illinois, School of Law: Scholarly Commons

Journal of Criminal Law and CriminologyVolume 39 | Issue 3 Article 71948Exhaustion of State Remedies as Affecting HabeasCorpus Writs in Federal Courts: A RecentModification of the RequirementThomas B. StiboltFollow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclcPart of the Criminal Law Commons, Criminology Commons, and the Criminology and CriminalJustice CommonsThis Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons.Recommended CitationThomas B. Stibolt, Exhaustion of State Remedies as Affecting Habeas Corpus Writs in Federal Courts: A Recent Modification of theRequirement, 39 J. Crim. L. & Criminology 357 (1948-1949)CRIMINAL LAW COMMENTSstate courts with federal rules of procedure or evidence in criminalcases.27 A further ground for refusing application of the federal ruleof exclusion that the Court could conceivably employ is that that ruleis based in part at least on the privilege against self-incrimination con-tained in the Fifth Amendment,2 8 and it has been recently held that thisprivilege is not granted by the due process clause of the FourteenthAmendment.2 9 In view of these holdings, the court might merely indicatethat the methods of enforcing the protection are to be left to the statecourts.Of course the mere fact that the Supreme Court has granted certiorariin these cases does not mean that they must decide the constitutionalquestion involved in them. It is possible that the court will find that afederal question has not been properly raised in the court below. How-ever, since this problem has never been decided by the court, and theconstitutional issue is the only federal question presented on appeal, theymay be ready to decide this important issue. Of the alternative dispo-sitions discussed, the more probable would seem to be that the court willhold that freedom from unreasonable search and seizure is guaranteedby the due process clause of the Fourteenth Amendment, but that themeans of making that protection effective will be left to the individualstates.DANIEL WALKERExhaustion of State Remedies as Affecting Habeas Corpus Writs inFederal Courts(A Recent Modification of the Requirement)The recent decision of the Supreme Court of the United States in thecase of Wade v. Mayo1 would seem to give new hope to persons who havebeen incarcerated and who are seeking release through the medium of awrit of habeas corpus in the federal courts because of a denial of theirconstitutional rights. Prior to this decision, many persons with possiblemeritorious claims had been denied relief by habeas corpus because ofa failure to exhaust the state remedies available-in particular, a failureto petition for certiorari after the decision of the state supreme court.2The prior rule as to the exhaustion of state remedies, enunciated inEx Parte Hawk,3 was that "Ordinarily an application for habeas corpusby one detained under a state court judgment of conviction for crimewill be entertained by a federal court only after all the state remedies27 Bute v. flinois, 333 U.S. 640, 649-654 (1947) ; Asheraft v. Tennessee, 322 U.S.143 (1944) (Jackson, J., dissenting).28 Boyd v. United States, 116 U.S. 616 (1886); Davis v. United States, 328 U.S.528 (1945); of. Shapiro v. United States, 335 U.S. 1 (1948) (Rutledge, J., dissent-ing). But see, Hale v. Haenkel, 201 U.S. 43 (1905); Silverthora v. United States,251 U.S. 385 (1919); Grant, Constitutional Basis of the Rule Forbidding the Use ofIllegally Obtained Evidence in a National Prosecution (1944) 15 So. Cal. L. Rev. 60.29 Adamson v. California, 332 U.S. 46 (1946).1 - U.S. -, 68 S. Ct. 1270 (1948).2 Gordon v. Scudder, (C.C.A. 9th, 1947), 163 F. (2d) 518; Monsky v. Warden ofClinton State Prison, (C.C.A. 2d, 1947), 163 F. (2d) 978; Stonebreaker v. Smyth(C.C.A. 4th, 1947), 163 F. (2d) 501.3 321 U.S. 114 (1943).1948]CRIMINAL LAW COMMENTSavailable, including all appellate remedies in the state courts and inthis court by appeal or writ of certiorari, have been exhausted."In W1rade v. Mayo, the petitioner, Wade, had been arrested in Floridaon a charge of breaking and entering. At the trial, Wade requested thatthe trial judge appoint counsel to represent him because of his ownfinancial disability. The judge refused, and Wade was sentenced to servefive years in the penitentiary. Wade subsequently obtained counsel, whofiled a petition for a writ of habeas corpus in the Circuit Court of PalmBeach County, on the ground that the refusal of the trial judge toappoint counsel for Wade was in violation of the due process clause ofthe Fourteenth Amendment to the Constitution of the United States.The writ was quashed in that court on the authority of Florida casesholding that under Florida law, a trial judge has no duty to appointcounsel for the accused in non-capital cases. An appeal to the SupremeCourt of Florida was dismissed in that court without opinion. Counselfor Wade did not petition for certiorari to the Supreme Court of theUnited States after that decision, but a year later filed a petition for awrit of habeas corpus in the Federal District Court for the SouthernDistrict of Florida, alleging a denial of due process, and pointing outthat in order to exhaust state remedies, Wade had pursued a writ ofhabeas corpus through the Supreme Court of Florida. The district courtgranted the writ, and, after hearing, discharged the petitioner. The Cir-cuit Court of Appeals for the Fifth Circuit reversed, and the case camebefore the Supreme Court of the United States on certiorari.It is clear that under the rule as set forth in Ex Parte Hawk as to therequirements of exhaustion of state remedies, the failure of Wade topetition the Supreme Court of the United States for certiorari after thedecision of the Supreme Court of Florida dismissing the writ of habeascorpus in the state courts would preclude relief by habeas corpus in thefederal court. Such a petition had been considered a necessity in orderfor the federal courts to entertain a petition for a writ of habeas corpus.4However, in the instant case, the Supreme Court saw fit to re-examinethe rule of Ex Parte Hawk, and modified that rule, largely on groundsof policy. The Court expressed the view that the requirement of ex-haustion of state remedies is not based upon a lack of power in thefederal courts to entertain petitions for habeas corpus before stateremedies had been exhausted, but rather on principles of comity betweenstate and federal judicial systems, and administrative necessity. How-ever, the reasons for the principle cease after the highest state court hasrendered a decision on the merits. The review at that point in the federalcourt is not a part of the state procedure, but an invocation of federalauthority growing out of the supremacy of the Constitution and thenecessity of giving effect to that supremacy where the state courts havefailed to do so. Thus, since there is no longer any danger of collisionbetween state and federal judicial systems after the question has beenpursued through the highest court in the state, the district court shouldthen have discretion to entertain the writ of habeas corpus, even thoughthe petitioner had failed to petition for certiorari after the decision ofthe highest court of the state. The Court then enunciated the rule thatit is within the discretion of the federal court to weigh the reasons for4 Tinsley v. Anderson, 171 U.S. 101 (1898); Urquhart v. Brown, 205 U.S. 179(1906); Mooney v. Holohan, 294 U.S. 103 (1935).[Vol 39

Exhaustion of State Remedies as Affecting Habeas Corpus Writs in Federal Courts: A Recent Modification of the Requirement

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Exhaustion of State Remedies as Affecting Habeas Corpus Writs in Federal Courts: A Recent Modification of the Requirement

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