Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.
This is an appeal from the judgment of the district court dismissing the relator's petition for habeas corpus.
The relator, Elliott, was tried in the Court of Oyer and Terminer, Philadelphia County, Pennsylvania, on the charge of murder. He was represented by counsel throughout the trial and throughout the subsequent proceedings. Indeed, counsel have been very vigilant in looking after his interests. After several days of trial, he changed his plea from not guilty to guilty. Pursuant to Pennsylvania law, three judges determined that the murder was murder of the first degree and then sat to consider the question whether the penalty to be suffered by the prisoner should be life imprisonment or death. As authorized by a Pennsylvania statute, Act of May 2, 1933, P.L. 224, the court called upon a psychiatrist to "guide" it*fn1 with regard to the mental condition of the prisoner. The court appointed Dr. William Drayton, Jr. Dr. Drayton had been chief of the Philadelphia General Hospital psychiatric department since 1926, neuropsychiatrist in the Philadelphia Municipal Court since 1922, and associate professor of neuropsychiatry in the Graduate School of Medicine of the University of Pennsylvania.
To Dr. Drayton was turned over a file containing much of the prisoner's medical, penal and psychiatric history, which the court requested him to interpret.One member of the court stated to defendant's counsel:
"You are putting something [hospital records] on the record that we know we cannot read or interpret * * * I would only agree to the appointment of a psychiatrist by the Court and he professionally would interpret that record and that would be the basis of the history of this man; further that he would come into Court and translate that record into understanding terms."
Dr. Drayton's report, dated July 6, 1950, was unfavorable to the prisoner. He advised the court that Elliott
"is probably no higher mentally than the middle grade moron scale * * *. In addition to being mentally defective in the moron level, it is evident that this man is a fabricator of the first water * * *. He shows no evidence of being mentally ill."
The court sentenced Elliott to death. He took an appeal and the judgment was affirmed, Commonwealth v. Elliott, 1952, 371 Pa. 70, 89 A.2d 782. Subsequently, his petition to the Court of Common Pleas for a writ of habeas corpus was denied and again he appealed to the Supreme Court of Pennsylvania. Again judgment was affirmed, Commonwealth ex rel. Elliott v. Baldi, 373 Pa. 489, 96 A.2d 122, certiorari denied, 1953, 345 U.S. 976, 73 S. Ct. 1125, 97 L. Ed. 1391. He then, through his lawyers, applied to the federal district court for a writ of habeas corpus, which was denied in a thoughtfully considered opinion by Chief Judge Kirkpatrick.
Preliminarily, it is asserted that a writ of coram nobis is still available to relator in the Pennsylvania courts and that, thus, he has not exhausted his state remedies. However, we think that, although only the writ of habeas corpus was before it, the Supreme Court of Pennsylvania in effect disposed of relator's claims to both writs in its second opinion. This is not completely clear. The court speaks of possible remedies, in the situation to which it refers, as being a writ of habeas corpus or a writ of coram nobis, 373 Pa. at page 493, 96 A.2d at page 124. The scope of coram nobis is dealt with by footnote; habeas corpus is discussed more fully. But at the end of the opinion the court, in language quoted later herein, makes an all-inclusive statement to dispose of Elliott's case.
There are, then, two problems before us on this appeal.
One has to do with the constitutionality of this whole proceeding in federal court. The State of Pennsylvania, in a brief joined in by the Attorneys General of forty other states, contends that this whole process of review by inferior federal courts is unconstitutional and, of course, therefore void. This Court is unanimous in rejecting that argument.
The procedure followed in the present case, and others involving habeas corpus applications by persons held in custody after conviction in state courts, is set out in the federal statutes. The Habeas Corpus Act (28 U.S.C. § 2241 and following) gives authority for issuance of a writ when a prisoner "is in custody in violation of the Constitution or laws or treaties of the United States * * *." Present section 2254 provides that an applicant must have first exhausted his state remedies. The provision allowing federal courts to extend the protection of habeas corpus to those in state custody came into the law in 1867.*fn2 "Prior to the Civil War, habeas corpus was available in the United States courts, barring limited exceptions, only for those in federal custody."*fn3 The constitutionality of the wider coverage was very clearly declared by Mr. Justice Harlan, speaking for the Court in Ex parte Royall, 1886, 117 U.S. 241, 249, 6 S. Ct. 734, 739, 29 L. Ed. 868:
"But as the judicial power of the nation extends to all cases arising under the Constitution * * * no doubt can exist as to the power of Congress thus to enlarge the jurisdiction of the courts of the Union * * *. That the petitioner is held under the authority of a State cannot affect the question of the power or jurisdiction of the Circuit Court to inquire into the cause of his commitment, and to discharge him if he be restrained of his liberty in violation of the Constitution."
And in Frank v. Mangum, 1915, 237 U.S. 309, 331, 35 S. Ct. 582, 588, 59 L. Ed. 969, Mr. Justice Pitney said:
"There being no doubt of the authority of the Congress to thus liberalize the common law procedure on habeas corpus in order to safeguard the liberty of all persons within the jurisdiction of the United States against infringement through any violation of the Constitution or a law or treaty established thereunder, it results that under the sections cited a prisoner in custody pursuant to the final judgment of a state court of criminal jurisdiction may have a judicial inquiry in a court of the United States into the very truth and substance of the causes of his detention, although it may become necessary to look behind and beyond the record of his conviction to a sufficient extent to test the jurisdiction of the state court to proceed to judgment against him."
Now the Commonwealth of Pennsylvania attacks the constitutionality of the 1867 extension of the habeas corpus provisions. It minimizes the forthright statement from Ex parte Royall as dictum. With this we disagree. We think it one of the bases of decision. But whether decision or dictum the correctness of its doctrine may of course be challenged again.
The Commonwealth argues that Congress may not empower a federal court to re-examine findings of fact by state tribunals otherwise than by ordering a new trial, and points to the Seventh Amendment.*fn4
We do not find in this proceeding for habeas corpus any re-examination of facts found by a state court. Our problem is to determine whether the things that were done in the state court in prosecuting a man for a criminal offense were so unfair as to deprive him of a right under the Constitution of the United States. A reference to the Seventh Amendment seems to us wide of any mark to be shot at here. This for several reasons.
In the first place no facts were tried by a jury or by the court, for Elliott pleaded guilty. Again, Moore makes it clear that the Seventh Amendment was intended to apply only to civil cases.*fn5 Third, the argument fails to distinguish between review of trial of facts and the question of violation of constitutional rights of one held in custody. Two Supreme Court quotations make this clear.
Thus in 1807 Chief Justice Marshall stated in Ex parte Bollman, 4 Cranch 75, 101, 8 U.S. 75, 101, 2 L. Ed. 554:
"It has been demonstrated at the bar, that the question brought forward on a habeas corpus, is always distinct from that which is involved in the cause itself. The question whether the individual shall be imprisoned, is always distinct from the question whether he shall be convicted or acquitted of the charge on which he is to be tried, and therefore, these questions are separated, and may be decided in different courts."
Many years later, Mr. Justice Frankfurter stated in Watts v. Indiana, 1949, 338 U.S. 49, 50-51, 69 S. Ct. 1347, 1348, 93 L. Ed. 1801:
"On review here of State convictions, all those matters which are usually termed issues of fact are for conclusive determination by the State courts and are not open for reconsideration by this Court. Observance of this restriction in our review of State courts calls for the utmost scruple. But 'issue of fact' is a coat of many colors. It does not cover a conclusion drawn from uncontroverted happenings, when that conclusion incorporates standards of conduct or criteria for judgment which in themselves are decisive of constitutional rights. Such standards and criteria, measured against the requirements drawn from constitutional provisions, and their proper applications, are issues for this Court's adjudication."
We have the same difficulty with the second point urged by counsel for the Commonwealth. He argues that unless the district court be regarded as exercising an appellate revisory jurisdiction over the state courts this is a suit against Pennsylvania and beyond the federal judicial power. It is hardly necessary to say that we have no intention of going beyond constitutional judicial power in sanctioning a suit against the state. But we think to argue that the habeas corpus proceeding is a suit against Pennsylvania is not an accurate way to describe its nature. From the beginning habeas corpus has been the means by which one who claims to have been held in illegal custody of another has the right to have the legality of his custody determined. The writ proceeds against the custodian. If it is found the custody is illegal, the custodian is directed to discharge the person detained. See Ex parte Tom Tong, 1883, 108 U.S. 556, 2 S. Ct. 871, 27 L. Ed. 826; Cross v. Burke, 1892, 146 U.S. 82, 13 S. Ct. 22, 36 L. Ed. 896; McNally v. Hill, 1934, 293 U.S. 131, 55 S. Ct. 24, 79 L. Ed. 238. The discussion of habeas corpus in Blackstone*fn6 shows clearly that author's conception of the writ is not a suit against the crown. Rather "the king is at all times entitled to have an account why the liberty of any of his subjects is restrained" and "the extraordinary power of the crown is called in to the party's assistance."*fn7 Note also the language of Mr. Justice Peckham, speaking for the Court, in Ex parte Young, 1908, 209 U.S. 123, 167-168, 28 S. Ct. 441, 457, 52 L. Ed. 714. He is speaking of the supreme authority which arises from the Constitution:
"This supreme authority * * * is howhere more fully illustrated than in the series of decisions under the Federal habeas corpus statute ( § 753, Rev. Stat.), in some of which cases persons in the custody of state officers of alleged crimes against the State have been taken from that custody and discharged by a Federal court or judge, because the imprisonment was adjudged to be in violation of the Federal Constitution. The right to so discharge has not been doubted by this court, and it has never been supposed there was any suit against the State by reason of serving the writ upon one of the officers of the State in whose custody the person was found. In some of the cases the writ has been refused as matter of discretion, but in others it has been granted, while the power has been fully recognized in all."
And see Mr. Chief Justice Vinson's discussion in Larson v. Domestic & Foreign Commerce Corp., 1949, 337 U.S. 682, 689-690, 69 S. Ct. 1457, 1461, 93 L. Ed. 1628:
"There may be, of course, suits for specific relief against officers of the sovereign which are not suits against the sovereign. If the officer purports to act as an individual and not as an official, a suit directed against that action is not a suit against the sovereign. * * *
"A second type of case is that in which the statute or order conferring power upon the officer to take action in the sovereign's name is claimed to be unconstitutional. Actions for habeas corpus against a warden and injunctions against the threatened enforcement of unconstitutional statutes are familiar examples of this type. Here, too, the conduct against which specific relief ...