The opinion of the court was delivered by: BARD
On October 9, 1950 our esteemed colleague, Judge Welsh, granted a rule to show cause why the writ of habeas corpus prayed for in relator's petition should not be granted and ordered a stay of execution. The disposition of this rule is now before us.
In accordance with our established practice, we denied the respondent's petition to convene a full bench. We have never granted such a petition. It has been done only, on a few occasions, at the request of the Judge to whom the matter was originally assigned. In the instant case we have honored Judge Welsh's request so to convene. We heard argument on the legal phases of this matter as they appeared from the relator's petition, the respondent's answer and brief.
We conclude that this petition for writ of habeas corpus must be denied.
The relator is a self-confessed murderer awaiting execution of the death sentence. On November 9, 1949 this Court, also sitting en banc at Judge Welsh's request, in an opinion written by the Chief Judge, discharged a prior petition for writ of habeas corpus for lack of territorial jurisdiction over the person of the relator. United States ex rel. Smith v. Warden of Philadelphia County Prison, D.C., 87 F.Supp. 339, affirmed, 3 Cir., 181 F.2d 847. Judge Welsh dissented 87 F.Supp. 344. In a concurring opinion, 87 F.Supp. 341, the writer of this opinion pointed out that we also lacked jurisdiction for the reason that the relator had failed to exhaust his state remedies.
Since then relator has exhausted his state remedies. The identical petition now before us was denied on January 20, 1950 by the Pennsylvania Supreme Court in a lengthy opinion by the late Chief Justice Maxey, see Commonwealth ex rel. Smith v. Ashe, Warden 364 Pa. 93, 71 S.2d 107, and on October 9, 1950 certiorari was denied by the United States Supreme Court, see 340 U.S. 812, 71 S. Ct. 40.
While it is customary to relate the necessary facts in an opinion of this nature, this case has repeatedly been before the federal and state courts and has taken up more than its fair share of the various legal reports. It is sufficient to point out that these facts surrounding the murder and the relator's arraignment and trial can be found in the following opinions: Commonwealth v. Smith, 362 Pa. 222, 66 A.2d 764; United States ex rel. Smith v. Warden of Philadelphia County Prison, D.C., 87 F.Supp. 339, supra; Commonwealth ex rel. Smith v. Ashe, Warden, 364 Pa. 93, 71 A.2d 107, supra.
Under our form of government, state and federal sovereigns exist side by side. Though the federal government, in the words of Chief Justice Marshall, 'is supreme within its sphere of action', McCulloch v. Maryland, 4 Wheat. 316, 405, 4 L. Ed. 579, it is nevertheless limited in its powers. 'The happy relation of States to Nation- constituting as it does our central political problem- is to no small extent dependent upon the wisdom with which the scope and limits of the federal courts are determined', from 'The Business of the Supreme Court' by Frankfurter and Landis p. 2.
Federal district courts are courts of limited jurisdiction and no presumption of jurisdiction attaches to such courts. A district court should be alert, before assuming jurisdiction in any case, to see that it is within the authority conferred upon it. Mr. Justice Harlan said in a leading case on the subject, Bors v. Preston, 111 U.S. 252, 255, 4 S. Ct. 407, 408, 28 L. Ed. 419, when the inquiry involves the jurisdiction of a federal court 'the presumption, in every stage of the cause, is that it is without their jurisdiction, unless the contrary appears from the record.'
State courts frequently have been zealous to avoid any interference with federal jurisdiction. A celebrated case arose out of this district years ago. In 1855 Judge Kane, one of our predecessors in the District Court in this district, committed one Williamson to jail for contempt of court. Williamson claimed he had acted in accordance with the laws of the state pertaining to slavery. He then appealed to the Pennsylvania Supreme Court to release him from jail through a writ of habeas corpus. The Pennsylvania Supreme Court denied the writ. Passmore Williamson's Case, 26 Pa. 9. The Court held that it was an issue pure and simple of whether the federal court was supreme within its own sphere, or whether a state court had the right to invade the federal domain and overrule decisions of a federal court.
The opinion was written by that famous jurist, Justice Jeremiah S. Black, prior to the time he became a cabinet officer in the federal government. His stirring language is still a beacon clearly illumining the path to be trod by state and federal judges in maintaining the delicately adjusted balance between the federal government and the states. Said justice Black, 26 Pa. at page 17: 'A habeas corpus is not a writ of error. It cannot bring a case before us in such a manner that we can exercise any kind of appellate jurisdiction in it. On a habeas corpus, the judgment even of a subordinate state court cannot be disregarded, reversed, or set aside, however clearly we may perceive it to be erroneous, and however plain it may be that we ought to reverse it if it were before us on appeal or writ of error. We can only look at the record to see whether a judgment exists, and have no power to say whether it is right or wrong. It is conclusively presumed to be right until it is regularly brought up for revision. * * * It applies with still greater force, or at least for much stronger reasons, to the decisions of the federal courts. Over them we have no control at all, under any circumstances, or by any process that could be devised. Those tribunals belong to a different judicial system from ours. They administer a different code of laws and are responsible to a different sovereignty. The District Court of the United States is as independent of us as we are of it- as independent as the Supreme Court of the United States is of either. What the law and the Constitution have forbidden us to do directly on writ of error, we, of course, cannot do indirectly by habeas corpus.'
To subject the judicial acts of the highest state court to review by the lowest federal court in routine cases where no constitutional issues are involved was never contemplated by the framers of the Constitution and no such grant has ever been conferred upon the district courts by the Congress, nor has it ever been sanctioned by any language of the Supreme Court. Nor, unless special circumstances prevail, should the lowest federal court reverse the highest state court in cases where the constitutional issues have been disposed on the merits by the highest state court in an opinion specifically setting forth its reasons that there has been no denial of due process of law, and where the record before the state court and the allegations in the petition for the writ before the federal court fail to disclose that the state in its prosecution departed from constitutional requirements. That is this case.
For this Court to reverse or overthrow the decision of the highest state court, in the instant case- particularly after the Supreme Court has refused to review the state court's decision, meaningless though that denial may be- would make mock of the rights reserved to the states in our Federal Constitution, upon which our system of dual sovereignty is founded.
Too, the language of Judge Phillips, of the Court of Appeals for the Tenth Circuit, in Whitney v. Zerbst, Warden, 62 F.2d 970, at page 972, is pertinent: 'Where one seeks discharge from confinement after conviction for an offense upon a petition for habeas corpus, the sole questions presented are whether petitioner was convicted by a court having jurisdiction of his person and the offense, and whether the sentence pronounced was one within the power of the court. The writ cannot be made a substitute for an appeal. Cardigan v. Biddle, 8 Cir., 10 F.2d 444; McIntosh v. White, 8 Cir., 21 F.2d 934; Knewel v. Egan, 268 U.S. 442, 45 S. Ct. 522, 69 L. Ed. 1036'.
A review by this Court of the state court's decision would place the relator in the preferred status of having two opportunities to litigate the identical question to the United States Supreme Court. As was said by Circuit Judge, now Mr. Justice, Minton: 'Surely, the petitioner has not the right to litigate twice to the Supreme Court of the United States the legality of his detention, by employing the process of two different courts.' See United ...