142 F. Supp. 302 | S.D. Ala. | 1956
Petitioner, for a second time, is seeking to invoke the jurisdiction of this court in a habeas corpus proceeding attacking the validity of a judgment of the circuit court of Houston County, Alabama. It is the contention of petitioner that he is illegally confined in violation of his rights under the Constitution of the United States in that, at the trial resulting in his conviction and sentence, he was denied counsel and the right to witnesses for the defense.
“Before a federal court may exercise the delicate jurisdiction of interfering with state criminal processes, the burden is on the petitioner, under 28 U.S. C.A. § 2254, to show that he 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.”
Petitioner then attempted to take an appeal to the Alabama Court of Appeals. There the appeal was dismissed on the ground that a final judgment was necessary to give jurisdiction on appeal.
Had he petitioned for certiorari to the Alabama Supreme Court (and, if necessary, to the Supreme Court of the United States) on his original appeal from the judgment of conviction, he would not now (as a prerequisite to seeking relief in a United States district court) be required to pursue in the state courts a collateral remedy based on the same evidence and issues he raised on his first appeal. Brown v. Allen, supra. However, petitioner failed to avail himself of his state remedy to obtain a ruling from the Alabama Supreme Court on the constitutional questions decided against him by the Alabama Court of Appeals in 1947-1949.
Though federal and state court decisions are in accord that strict rules of
The procedural tangle in which petitioner finds himself does not conclusively establish his lack of a method of redress in the state courts. Under § 747 of Title 7, Code of Alabama 1940, when an appeal is dismissed, it goes back to the court from which the case was originally removed, and other proceedings may be had thereon as if no appeal had been prosecuted. The dismissal in the State Court of Appeals appears to have been based on petitioner’s failure to avail himself of the right to ask for a non-suit,
In any event, before this court has the authority to consider the constitutional questions which petitioner has sought to raise here, the burden is on him to obtain a ruling (or a refusal to rule) on these questions from the highest state court; or to establish on the face of his sworn petition to this court that there are insurmountable legal barriers or material circumstances which make it impossible for him to obtain such a ruling.
Petition dismissed without prejudice.
. Buchanan v. O’Brien, 1 Cir., 1950, 181 F.2d 601, 605.
. Smith v. State, 34 Ala.App. 194, 38 So.2d 287.
. Although it is true that under the Code of Alabama of 1940, Title 13, § 86, the Alabama Court of Appeals has final appellate jurisdiction of all felonies where the punishment has been fixed' at twenty years or under, nevertheless, on certiorari, all errors of law apparent in judgments and opinions of the Court of Appeals are subject to review by the Alabama Supreme Court. Blackwood v. Maryland Casualty Co., 227 Ala. 343, 150
. Code of Alabama 1940, Title 15, §§ 1-43, and § 369, as amended.
. Citing State ex rel. Wright v. Kemp, 205 Ala. 201, 87 So. 836; Wise v. Spears, 200 Ala. 695, 76 So. 869; “and other cases too numerous to mention.”
. Latham v. State, 262 Ala. 108, 77 So.2d 502, and prior decisions.
. Smith v. State, 34 Ala.App. 194, 34 So. 2d 287.
. Woollomes v. Heinze, 9 Cir., 1952, 198 F.2d 577, citing Buchanan v. O’Brien, supra, 181 F.2d 601.
. Loper v. Ellis, 5 Cir. 1955, 224 F.2d 901, citing Baker v. Ellis, 5 Cir., 194 F.2d 865, 866; Smith v. State, 32 Ala. App. 650, 29 So.2d 436; Kilgore v. State, 261 Ala. 465, 75 So.2d 126.
. Caldwell v. State, 36 Ala.App. 612, 63 So.2d 384; Griffin v. State, 258 Ala. 557, 63 So.2d 682.
. Ex parte Bizzell, 112 Ala. 210, 21 So. 371; Redus v. Williams, 244 Ala. 459, 13 So.2d 561; Griffin v. State, 258 Ala. 557, 63 So.2d 682.
. Porch v. Cagle, 5 Cir., 1952, 199 F.2d 865, citing Johnson v. Wilson, 5 Cir., 1942, 131 F.2d 1.
. Code of Alabama 1940, Title 7 § 819. See also Title 15, § 369, amended June 21, 1955, and § 371 and note thereunder.
. Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572.