*1
application
here shown to
call
Atty. Gen.,
Allain,
William A.
Asst.
a different rule than
announced and
Jackson,
appellees.
Miss., for
applied
Rayfield,
5th Cir.
BROWN,
Before JONES and
Circuit
320 F.2d
cert. den. 375
Judges,
Judge.
SHEEHY,
District
11 L.Ed.2d
*2
808,
Wykcoff,
L.Ed.2d
Then in
6 Race
13
In re
S.Ct.
in the case
specifically
VII,
786, 793,
Part
it
is
asserted:
Rel.L.Rep.
discussed
which is
vagrancy
(1)
principles
Mississippi
stat-
Rayfield. The
If the
apply
con-
to
de ute2 is construed
to her
sustain the
in
cases
announced
those
duct,
judg
be
of her “free-
and
it would
violative
court
its
the district
cision of
speech,
dom
and as-
association
ment
XIV),
I,
sembly (U.S.CONST. Amends.
Affirmed.
privilege
of her
to disseminate
pertinent
information
to
Judge
BROWN, Circuit
R.
JOHN
voting
elections, and to
and
in national
(concurring).
Negro
encourage
support
citizens
and
solely
concur,
v.
Brown
I
register
Mississippi
vote
to
and
stands,
long
squarely
Rayfield, so
it
as
(U.S.CONST.,
in national
elections
deference,
But,
this case.
vagrancy
XV),”
(2)
rules
and
Amend.
inadequate
decision,
victim
consti-
construed to save its
statute is
tutionality,
think, wrong
presentation,
is,
and
I
sup-
to
is no
“there
evidence
* * *
ought
consistently
to be reversed.
port
process
(U.S.CONST.,
seeking
with due
law
Hillegas’ petition,
Petitioner
XIV).”3
Amend.
pursuant
corpus relief
federal habeas
alleges
in un-
28
to
U.S.C.A. §
and
It
next
her arrest
asserted that
detailed,
language
factually
equivocal,
purpose
of deter-
detention is
ring
custody in
that she is
in state
held1
exercising
her from
the constitu-
violation of her federal constitutional
rights
mentioned,
previously
and
tional
Gibson,
Conley
right. Applying
Negro
seeking
from
to secure
citizens
99, L.Ed.
S.Ct.
In Part
their constitutional franchise.
must,
2d
as we
this means that
VIII,
pursuant
all of this is said
be
to
prosecution and trial
Court holds that
segregation,
practice
to a
wide
state
by
unconstitution-
state
effectuate
public
all
officials—in-
subscribed to
discrimination is not an “ex-
al race
cluding
judges
popularly
who are
imagine
traordinary”
noth-
I can
case.
candidly
expressly
and
ac-
elected. She
ing
extraordinary.
knowledges
attempt
no
made
petition describe
Parts I-VI of the
maintaining
remedies,
exhaust
Hillegas,
resources,
work
Miss
her
her
light
unnecessary
this to be
in
County
in
for COFO
in assist-
Lowndes
alleged.
facts
voting
ing Negroes
confirming
in
disagreed and,
The District
past
in
discrimination
the face
hearing,
holding
evidentiary
County Registrar
without
color
under
rely-
exhaustion,
for lack of
dismissed
ing
law and constitutional
Ray-
Wycoff
provisions, noting
Brown v.
particularly
on
re
and
supra.
opinion,
Registrar
field,
County
named
in the Court’s
Lowndes
was a
cited
a case for
party
as- Both
those eases held that
massive
Government’s
require-
exception
provisions
practices
to the exhaustion
on
and
sault
these
Mississippi,
had not
28 U.S.C.A.
ment of
in United States v. State
F.Supp.
(3-Judge),
out. From an examination
been made
S.D.Miss.
cases,
particularly
close
925, reversed, 1965,
85 of
these
U.S.
supporting (2)
subsequently
a seri-
on
The authorities
She was
released
bond.
recent-
issue have been
ous
2. Miss.Code Ann.
2666:
ly
Chief Justice Warren
reviewed
following persons are and
“The
shall
Supreme
Court’s
his dissent
* * *
punished
vagrants,
viz.:
Maryland,
hear
refusal
Drews v.
having
“(c)
persons
work,
All
able
1576, 14
L.Ed.
S.Ct.
property
support
them,
no
and who
1965],
2d
[June
no
or known means
visible
fair, honest,
reputable livelihood.
reading
Brown,
sarily
solely
post-conviction
of the briefs filed
relates
apparent
there
that the Court did not
habeas.
same,
have before it
rich historical
petition,
Here
have a
un
on
materials
the intent of
by any
judgment.
cluttered
state court
passing
(the
the Act of
forerunner
Statutory
post-convic
on
restrictions
2241)
early
court decisions
really pertinent.
tion
are not
But
*3
it,
interpreting
of
relative to the extent
Rayfield compli
this is where Brown v.
availability
pre-trial
the
of
cates the matter.
as in
For that
relief,
Appellant’s
habeas
set forth
ap
us,
pre-trial
the one before
involved a
lengthy, scholarly, completely annotated
plication
for an arrest
for habeas relief
Anthony
filed
Am-
brief
Professor
circ
confinement and under similar
sterdam4
any good
Belying,
Court
umstances.5
ought
do,
earnest,
to
on the
histori
Wycoif
got
How
ever
into Brown is a
cally
presentations
incomplete
of counsel
mystery.
mistakenly urged
who
that the case was
Wycoif
Being
simply inapposite.
coming
exception
one
within the
to §
application
post
for
ha-
conviction
only
conviction),
(applicable
post
to
relief,
put
argued
beas
the case was
Wycoif holding
the Court followed
that
as to whether
within
that case came
necessary.
under
exhaustion was
§
exception
require-
the
to the exhaustion
Examining wholly
typical
from the
ex
ment of 2254—“that there is either an
point
stopped
view,
haustion
of
the Court
absence of available State corrective
considering
peti
short
whether the
process or the existence
circumstanc-
proof
tioner should
to
be allowed make
rendering
process
es
such
to
ineffective
allega
hearing
appropriate
in an
of his
protect
prisoner.”
the
the
prosecution
tion that the
instituted
was
nothing
however,
Section
has
racially discriminatory purpose,
for
do
our case. This is
so
get
and that
could
trial.6
he
not
fair
section,
requiring
that
exhaustion as
general rule,
only
to do
points
has
with those
Professor Amsterdam
out the
custody pursuant
“in
judgment
requirement
pre-
exhaustion
relative to
**
a State court
petitions
It neces-
trial
doc-
is court-made
substantially dupli-
infra.)
These materials
Georgia,
Emphasizing
State of
right
cated in
only
Professor
recent
Amsterdam’s
that
the decision went
to the
article,
Affecting
facts,
jurisdictional
Criminal Prosecutions
on
be heard
Federally
Rights:
Guaranteed Civil
Fed-
the Court stated:
Corpus
eral Removal
course,
allegations
and Habeas
Juris-
“Of
must
Trial,
proved
diction to
challenged.
Abort
Consequently,
State Court
re-
if
(1965).
misapplication
U.Pa.L.Rev.
805-912
on
moval based
aof
may
proof.
statute
However,
fail for want of
petition
Bayfield alleged
5. The
only
we deal here
with what
petitioners,
walking single
that
while
file
allegations
prevent
are sufficient
signs
carrying
protesting
segregation,
hearing.”
al-
remand without a
The
“parading
were arrested and detained for
legation
was “that
Code
permit.”
without a
public streets]
2296.5 [obstruction of
quite
approach
This is
from
different
applied
being
against
petition-
[the
regard
taken
this Court with
to re-
purposes
harassment,
ers]
for
in-
moval, U)S.C.A. 1443(1),
whereunder
timidation,
impediment
and as an
allegations
similar
are often made.
their work
the voter
City
Greenwood, Mississip-
Peacock v.
thereby
drive,
equal
depriving
pi, Cir.,
them
F.2d
[June
1965], holding
protection
petition
of the
that a
laws.”
F.2d at
removal
alleging discriminatory application of a
facially
(same
Rachel,
valid state
(after
statute
issue
But
inas
determination
here)
removal,
hearing)
sufficient
enti-
that
case is removable au-
tling
petitioner
tomatically
to establish factual-
resolves the issue
forbids
ly
prosecution
his
allegation
the state criminal
trial. This
racially discriminatory
is,
course,
undertaken
precisely
made in the case
purposes.
(See discussion of Rachel v.
before us.
adequate
Royall,
not
vindication
flowing
parte
tion will
assure
Ex
trine
They suggest
868, of
29 L.Ed.
impairment of
or
that a substantial loss
designed
abuses
to curb
ap-
expression
occur if
convincingly
will
argues
in freedoms
writ. He
Congress, pellants
court’s dis-
Royall
progeny,
must await
spite
and its
position
in this
and ultimate review
in-
passing
Act in
Habeas
any
accorded,
determination.
adverse
sub-
have
tended and
Courts
clearly
allegations,
true,
ir-
pre-
show
These
as a
writ
stantial utilization
* * *
injury.
reparable
Because
remedy
circum-
trial
—in
ex-
therefore,
question,
the
pression,
nature of constitutional
sensitive
The
stances.
required
all of
not
category
Pro-
which
of cases
whether
subject
regulations
advisedly
those
“civil
overbroad
terms
Amsterdam
fessor
rights cases,”
rights.”
risk
to test
perhaps
narrow-
or
contrary
485-486,
at
1120-
ly
is,
85 S.Ct. at
petitioner
those where the
*4
Dombrowski,
1121,
rights,
28. In
L.Ed.2d at
be-
federal constitutional
to his
here,
prosecution
assisting
ing
as
prevented
on-
motive
in the
challenged,
pres-
going
important
and with
factor
interest—
of an
federal
arrest,
allegations
of
ent
in the
the kind
as voter
—is
really part
prosecution
confinement
and
as to which
allowed,
harassment,
prospect
of a
scheme
intended
the courts
in
courts or
This
eventual
state
success
federal
relief.
Supreme
complicated
in
Court is
question,
correction
far
and seri-
inadequate protection
appear
of the constitu-
v.
in Brown
ous than made to
Rayfield,
right
expression.
tional
to free
380 U.S.
answer
a considered
deserves
479,
1116,
29.
85 S.Ct.
14 L.Ed.2d
not in
of that unillumined
the darkness
light
presentation
in the
of these
full
action in
In 1961 we took similar
Unit-
historical-juridical
which
materials
Wood, Cir., 1961,
F.2d
ed
v.
States
though
legal
unper-
classic
literature
772,
alleged as-
where
of the
suasive here.
enjoined
dis-
sailant was
ruptive
of its
seeking
effect on others then
Any such
will
reassessment
demon-
reg-
rights (voter
constitutional
exercise
istration).
at
are work
strate that the same factors
systems
parallel
effective
More
is Rachel
recent
v. State Geor-
against
inspired,
state
redress
caused,
state
involving
Cir.,
gia,
1965,
336,
342 F.2d
permitted,
un-
instances of
rights
statute,
civil
28 U.S.
removal
equal treatment.
“statute”,
con-
C.A.
1443. Since
§
1965,
Pfister,
Dombrowski
380 U.S.
v.
alleged
Court,
to be
strued
this
1116,
479,
22,
in-
85 S.Ct.
L.Ed.2d
discrimination, the
one of the causes
injunction pursuant
volves the role
grounds
traditional
within the
case came
plaintiffs
to 42
1983.
U.S.C.A.
There
Kentucky
removal,
Commonwealth of
sought
enjoin
anticipated
enforce-
387,
Powers, 1906,
1,
v.
S.Ct.
activity
ment
control
of state subversive
Rives,
Virginia
633;
against
expression
v.
ac- 50 L.Ed.
State
statutes
their free
Going
1879,
313,
ggQ der the statute were reasons effected America, UNITED STATES of of racial at discrimination.” 347 F.2d Appellee, 684. given And this was full voice us COLLINS,Defendant-Appellant. Madell Louisiana, Cir., Cox v. June No. Docket granted 29772. 348 F.2d in which we stay pending appeal prevent Appeals United States Court of prosecution charged have been initi- Second Circuit. punish ated to “harass and citizens Argued July exercise ”* * * Aug. 6, Decided F.2d at 752. Pointing congressional to the view receding give Doug- scope City comity las v. concept Jeanette machinery the face of the use of the laws engine denials Dil- racial Riner, Cir., 1965, worth v. 343 F.2d opinion In an extended authored Judge Bell, we declared that the Civil Rights general Act of 1964 overrode the comity statute, 28 U.S.C.A. *5 permit injunctions against prosecu-
tions for .actions which were constitu-
tionally protected. passed
Thus point we have now
where Federal Courts can refuse to hear support factually
evidence in of a detailed
claim that a state criminal racially
has been initiated to effectuate
motivated denial of constitutional
By injunction recog- civil and removal we nize this much interference prosecutions price criminal is the pay Supremacy under the Clause.8 doing so we conclude that the situa- “extraordinary”
tion is and therefore calls for relief. That always Great Writ which is free tech- impediments relegated
nical now surprise. second role class ais All the my surprise
more is hold we can deliberate, purposeful use machinery State criminal its to wreak denials of constitutional is not “extraordinary” case. Rayfield may latest,
Brown v. be the cannot be the last word on this question.
vital recognize Likewise, availability I that with removal and civil devices injunction being peremptory, might, hearing less a Court after a the truth resolve might peti- charges, permit well defer action on some discretion pending tion use of flexible or these devices. denial deferment of the writ.