decree of a court or judge thereof; or is in custody in violation of the Constitution or of a law or treaty of the United States.' It is thus apparent that jurisdiction in this case is limited to a prisoner in custody in violation of the Constitution or of a law of the United States.
In Mooney v. Holohan, Warden, 294 U.S. 103, 55 S. Ct. 340, 341, 79 L. Ed. 791, 98 A.L.R. 406, Mooney asked leave to file petition for an original writ of Habeas Corpus in the Supreme Court of the U.S. on the ground: ' * * * that the sale basis of his conviction was perjured testimony, which was knowingly used by the prosecuting authorities in order to obtain that conviction, and also that these authorities deliberately suppressed evidence which would have impeached and refuted the testimony thus given against him.'
Mooney had been sentenced by a State Court on a conviction of murder, to life imprisonment. The Supreme Court held that a criminal conviction procured by State prosecuting authorities, solely by the use of perjured testimony known by them to be perjured, and knowingly used by them in order to procure the conviction is without due process of law and in violation of the 14th amendment. In the opinion it is stated: 'Upon the state courts, equally with the courts of the Union, rests the obligation to guard and enforce every right secured by that Constitution.'
The Supreme Court denied the petition without prejudice, stating: 'We do not find that petitioner has applied to the state court for a writ of habeas corpus upon the grounds stated in his petition here. That corrective judicial process has not been invoked, and it is not shown to be unavailable. Despite the many proceedings taken on behalf of the petitioner, an application for the prerogative writ now asserted to be peculiarly suited to the circumstances disclosed by his petition has not been made to the state court. Orderly procedure, governed by principles we have repeatedly announced, requires that before this Court is asked to issue a writ of habeas corpus, in the case of a person held under a state commitment, recourse should be had to whatever judicial remedy afforded by the state may still remain open.' See Pyle v. Kansas et al., 317 U.S. 213, 63 S. Ct. 177, 87 L. Ed. 214; Hawk v. Olson, Warden, 326 U.S. 271, 66 S. Ct. 116.
If the facts in the present case were, as alleged in the first reason assigned by relator for his writ of Habeas Corpus, he would be entitled to the remedy set forth in Mooney v. Holohan, supra. There is no evidence in this case that witnesses, who testified at his trial in the State Court in Georgia, were compelled to do so; there is no evidence that they gave perjured testimony, nor is there any evidence that the State of Georgia or its officers or agents, knew that perjured testimony was used against the relator.
There is evidence that Johnson received cruel treatment after he had been convicted of murder and while he was serving his sentence therefor. However, such treatment would not entitle him to his liberty as it does not constitute a custody of relator in violation of the Constitution or laws of the United States. 28 U.S.C.A. § 453. The 8th Amendment is not a limitation upon the States. Collins v. Johnston, 237 U.S. 502, 503, 510, 511, 35 S. Ct. 649, 59 L. Ed. 1071.
The third reason of relator, that if he is returned to the State of Georgia to complete his unfinished sentence, that his life will be endangered so that he fears he will meet his death by mob violence or be tortured by his jailors so that he will succumb, is not sustained by credible evidence. If Johnson is extradited, he will be in charge of Georgia State Officers. After his return to Georgia, he no doubt would be taken to the Penitentiary to which he had been sentenced to finish his life sentence and hence, would be in charge of State officers. No race question is involved as the relator and the person who was killed, are negroes. The Court of Common Pleas of Allegheny County and the Superior Court of Pennsylvania, seemingly took the same position on this reason, which was refused by said Courts.
For the reasons stated herein, the prayer of the relator for a writ of Habeas Corpus should be refused without prejudice to relator to make application or applications for such a writ in the State of Georgia, and also to seek all other available remedies, including a hearing before the Governor of Pennsyvlania.
Let an order be prepared and submitted in accordance with the above opinion.
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