The opinion of the court was delivered by: MURPHY
This case is here on remand,
a majority of the Court of Appeals having ruled that opportunity must be afforded relator to prove the allegations in his petition for habeas corpus, insofar as they relate to the alleged atmosphere of hysteria and prejudice prevailing at his trial, including any issues raised by Judge Boyer's asserted visits to the court room.
After a hearing was scheduled
to dismiss contending that the court lacked jurisdiction and judicial power to conduct the inquiry or to grant the writ. The motion is without merit. Similar questions were disposed of contrary to respondent's position in an opinion by Judge Goodrich speaking for the full court in United States ex rel. Elliott v. Hendricks, June 2, 1954,
213 F.2d 922. See Id., at page 929. 'We cannot have any doubt, even were the question a new one, that the federal power is ample, under the Constitution, to authorize the use of habeas corpus procedure to test the question whether one confined under state process is, in that confinement, deprived of his rights under the Constitution of the United States. Nor have we doubt that the power may be assigned to all the federal judiciary or part of it. If the authority of federal courts is to be more limited than that provided by the present statute, that limitation must be made by the Congress.' And see Mr. Justice Reed in Brown v. Allen, supra, 344 U.S. at pages 460, 464, 478, 486, 73 S. Ct. at pages 408, 409, 411, 418, 422, and Mr. Justice, Frankfurter, Id., 344 U.S. 443, at page 508, 73 S. Ct. 437, at page 447, 'Congress has the power to distribute among the courts of the States and of the United States jurisdiction to determine federal claims. It has seen fit to give this Court power to review errors of federal law in State determinations, and in addition to give to the lower federal courts power to inquire into federal claims, by way of habeas corpus'. Id., 344 U.S. 510, 73 S. Ct. 448, 'Insofar as this jurisdiction enables federal district courts to entertain claims that State Supreme Courts have denied rights guaranteed by the United States Constitution, it is not a case of a lower court sitting in judgment on a higher court. It is merely one aspect of respecting the Supremacy Clause of the Constitution whereby federal law is higher than State law. It is for the Congress to designate the member in the hierarchy of the federal judiciary to express the higher law. The fact that Congress has authorized district courts to be the organ of the higher law rather than a Court of Appeals, or exclusively this Court, does not mean that it allows a lower court to overrule a higher court. It merely expresses the choice of Congress how the superior authority of federal law should be asserted.'
See Mr. Justice Black, 344 U.S. at page 549, 73 S. Ct. at page 431, 'I agree with the Court that the District Court had habeas corpus jurisdiction * * * including power to release * * * if (the prisoner is) held as a * * * violation of constitutional rights. This I understand to be a reaffirmance of the principle embodied in Moore v. Dempsey, 261 U.S. 86, 43 S. Ct. 265, 67 L. Ed. 543.'
Has the applicant met the burden of showing that he has exhausted the remedies available in the state courts within the meaning of 28 U.S.C.A. § 2254; Darr v. Burford, 339 U.S. 200, at page 218, 70 S. Ct. 587, 94 L. Ed. 761; Brown v. Allen, 344 U.S. at pages 448-450, 486, 487, 73 S. Ct. at pages 402-404, 422, supra? Respondent argues that the Pennsylvania Supreme Court did not directly meet and dispose of the question of hysteria and prejudice. See Commonwealth ex rel. Darcy v. Claudy, April 10, 1951, 367 Pa. 130, 79 A.2d 785.
The Court of Appeals, however, found contra. See opinion C.J. Biggs, supra, 203 F.2d at page 411, describing the opinion in 367 Pa. 130, 79 A.2d 785, as 'passing on every substantial ground alleged in the petition.'
See and cf. Brown v. Allen, supra, 344 U.S. at page 458, 73 S. Ct. at pages 407, 408; United States ex rel. Smith v. Baldi, February 9, 1953, 344 U.S. 561, 73 S. Ct. 391, 97 L. Ed. 549; Commonwealth ex rel. Elliott v. Baldi, April 14, 1953, 373 Pa. 489, 96 A.2d 122, certiorari denied June 8, 1953, 345 U.S. 976, 73 S. Ct. 1125, 97 L. Ed. 1391.
A remedy may be exhausted by affirmative use thereof and failure therein or by inaction or failure to resort thereto.
Assuming arguendo there was some evidence of hysteria and prejudice before or at the trial, the law of Pennsylvania affords a number of methods of raising the question and spelling it out on the record and in the event of an adverse decision reserving it for review on appeal to the Supreme Court of Pennsylvania and on certiorari to the United States Supreme Court. Pre-trial, by challenging the array, see Commonwealth v. Zell and Herr, 81 Pa.Super. 145, at page 150, or by motion for continuance, Commonwealth v. Balles, 160 Pa.Super. 148, 150-151, 50 A.2d 729, or change of venue, commonwealth v. Karmendi, 328 Pa. 321, 339, 342, 195 A. 62. The Pennsylvania Supreme Court itself could upon proper showing remove the indictment to another county for trial, Commonwealth v. Ronemus, 205 Pa. 420, 54 A. 1095. At trial, by motion for withdrawal of juror, Commonwealth v. Mehlman, 163 Pa.Super. 534, 544, 63 A.2d 400. Post-trial, by motion for new trial, Commonwealth v. Deni, 317 Pa. 289, 293, 176 A. 919. Finally, on appeal and on petition for certiorari to the United States Supreme Court.
No such question was suggested either before, during or after the trial. See Rel.Ex.Nos. 4, 5, 10, 115, 116, 137; the motion for a new trial and opinion denying same; the assignments of error and statements of question involved on appeal, see paper books Supreme Court of Pennsylvania, 362 Pa. 259-286; Commonwealth v. Darcy, May 26, 1949, 362 Pa. 259, 66 A.2d 663, rehearing refused June 24, 1949.
The petition for certiorari (No. 96 Misc.), denied October 1949, 338 U.S. 862, 70 S. Ct. 96, 94 L. Ed. 528, raised only questions as to the jury view of the locus in quo and the charge of the court on presumptions from the use of a deadly weapon.
August 1, 1949, relator petitioned the Supreme Court of Pennsylvania for a writ of habeas corpus complaining that at the trial, over objection, the jury heard testimony as to offenses committed by defendant other than that named in the indictment. Petition denied without opinion August 12, 1949 (not reported); certiorari denied (No. 102 Misc.) October 23, 1949, 338 U.S. 862, 70 S. Ct. 96, 94 L. Ed. 528.
The question was not raised until after the relator failed in his attempt to have the Pennsylvania Board of Pardons commute his sentence to life imprisonment. (April 1950, denied May 5, 1950; application for reargument granted June 1950, continued to March 20, 1951, rejected March 21, 1951; again on March 29, 1951, rehearing denied March 30, 1951). April 2, 1951, relator's petition to the Supreme Court of Pennsylvania for certiorari to the Court of Oyer and Terminer of Bucks County, and for reargument nunc pro tunc, claimed denial of due process of law alleging that his trial counsel did not permit him to testify at his trial, (cf. opinion Biggs J., 203 F.2d at page 410, Maris J. at page 420); did not produce witnesses as to his background, good behavior, character or reputation although they were available; the proximity of the two trials; jurors' letters and opinions; hysteria; Judge Boyer's commendation and participation; and failure to continue the case. Denied without opinion April 3, 1951 (No. 429 Misc., Docket No. 9). Relator did not seek certiorari from the United States Supreme Court.
April 3, 1951, the present petition was filed in the district court. We withheld ruling thereon to afford relator an opportunity to seek a writ of habeas corpus from the Supreme Court of Pennsylvania, raising the precise questions and, if he failed therein, to seek certiorari from the United States Supreme Court. The petition filed April 9, 1951, was denied April 10, 1951, Commonwealth ex rel. Darcy v. Claudy, 367 Pa. 130, 79 A.2d 785.
In his petition for certiorari filed June 12, 1951, relator's counsel at p. 7 states 'All these facts were ascertained as a result of investigation by present counsel of the Petitioner and were presented to the Supreme Court of Pennsylvania for the first time in the Petition for Writ of Habeas Corpus which it refused on April 10, 1951.'
And at p. 3, '* * * former counsel of petitioner either failed to set forth said additional reasons or were unaware of the said additional reasons which for the most part were the result of investigation by present counsel'. And see Id. p. 12, '* * * former counsel, employed after the petitioner's conviction and prior to the employment of present counsel, either failed to include * * * or perhaps were unaware of the facts. * * *'
Res adjudicata does not apply, Salinger v. Loisel, 265 U.S. 224, at page 230, 44 S. Ct. 519, 68 L. Ed. 989, see and cf. Brown v. Allen, supra, 344 U.S. at page 458, 73 S. Ct. at pages 407, 408, and Price v. Johnston, 334 U.S. 266, at page 291, 68 S. Ct. 1049, at page 1063, 92 L. Ed. 1356, 'If for some justifiable reason he was previously unable to assert his rights or was unaware of the significance of relevant facts, it is neither necessary nor reasonable to deny him all opportunity of obtaining judicial relief.' But cf. Id., 334 U.S. at page 289, 68 S. Ct. at page 1062, Wong Doo v. United States, 265 U.S. 239, 44 S. Ct. 524, 68 L. Ed. 999, and see dissent 334 U.S. at pages 296, 297, 68 S. Ct. at pages 1065, 1066; Darr v. Burford, supra, 339 U.S. at page 203, 70 S. Ct. at page 589; Brown v. Allen, supra, 344 U.S. at page 461, 73 S. Ct. at page 409, 'Liberal as the courts are and should be as to practice in setting out claimed violations of constitutional rights, the applicant must meet the statutory test of alleging facts that entitle him to relief.'
A majority of the Court of Appeals rejected relator's claim of inefficient representation by trial counsel. This being so, if the situation were as obvious as relator now contends it must have been equally obvious to his trial counsel.
'This is not the case of an accused who has been denied counsel and who has failed to assert his constitutional rights at the proper time because of ignorance, but of one who has had the assistance of able counsel who knew how to raise and would have raised upon the original trial the questions that he is now raising, if there had been any substance to them.' Crowe v. United States, 4 Cir., 1949, 175 F.2d 799, at page 801.
'The writ of habeas corpus in federal courts is not authorized for state prisoners at the discretion of the federal court. It is only authorized when a state prisoner is in custody in violation of the Constitution of the United States. 28 U.S.C. § 2241. That fact is not to be tested by the use of habeas corpus in lieu of an appeal. To allow habeas corpus in such circumstances would subvert the entire system of state criminal justice and destroy state energy in the detection and punishment of crime.' Mr. Justice Reed, Brown v. Allen, supra, 344 U.S. at page 485, 73 S. Ct. at page 421.
'If defenses may be omitted at trials, rights of review omitted, and yet availed of through habeas corpus, the whole course of criminal justice will be deranged, and, it may be, defeated.' Ex parte Spencer, 228 U.S. 652, at page 661, 33 S. Ct. 709, at page 711, 57 L. Ed. 1010, and see In re Wood, 140 U.S. 278, at page 290, 11 S. Ct. 738, 35 L. Ed. 505.
Mr. Justice Reed, 'Failure to appeal is much like a failure to raise a known and existing question of unconstitutional proceeding or action prior to conviction or commitment. Such failure, of course, bars subsequent objection to conviction on those grounds.' Id., 344 U.S. at page 486, 73 S. Ct. at page 422, and see Id., 344 U.S. at page 487, 73 S. Ct. at page 422. '* * * failure to use a state's available remedy, in the absence of some interference or incapacity * * * bars federal habeas corpus.'
As to the 'broad reach' given to federal habeas corpus by recent cases, see Mr. Justice Jackson in Brown v. Allen, supra, 344 U.S. at pages 532, 533, 73 S. Ct. at page 423. 'Once upon a time the writ could not be substituted for appeal or other reviewing process but challenged only legal competence or jurisdiction of the committing court. We have so departed from this principle that the profession now believes that the issues we actually consider on a federal prisoner's habeas corpus are substantially the same as would be considered on appeal.' Id., 344 U.S. at page 540, 73 S. Ct. at page 427.
'Most states, and with good reason, will not suffer a collateral attack such as habeas corpus to be used as a substitute for or duplication of the appeal. A state properly may deny habeas corpus to raise either state or federal issues that were or could have been considered on appeal. Such restriction by the state should be respected by federal courts.' Id., 344 U.S. at page 541, 73 S. Ct. at page 427.
As to the scope of review and possible relief on habeas corpus generally, see Commonwealth ex rel. Elliott v. Baldi, supra, 373 Pa. 489, at pages 492, 495, 96 A.2d 122; Commonwealth ex rel. Carey v. Montgomery County Prison Keeper, 370 Pa. 604, 88 A.2d 904; Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 24 A.2d 1. See and cf. Woods v. Nierstheimer, 328 U.S. 211, 66 S. Ct. 996, 90 L. Ed. 1177; Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S. Ct. 262, 95 L. Ed. 215; Bowen v. Johnston, 306 U.S. 19, at pages 23, 24, 59 S. Ct. 442, 83 L. Ed. 455; finally, Waley v. Johnston, 316 U.S. 101, 104-105, 62 S. Ct. 964, 86 L. Ed. 1302.
Mr. Justice Frankfurter, Brown v. Allen, supra, 344 U.S. at page 503, 73 S. Ct. at page 444, 'Of course, nothing we have said suggests that the federal habeas corpus jurisdiction can displace a State's procedural rule requiring that certain errors be raised on appeal. Normally rights under the Federal Constitution may be waived at the trial. Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S. Ct. 236, 87 L. Ed. 268, and may likewise be waived by failure to assert such errors on appeal. Compare Frank v. Mangum, 237 U.S. 309, 343, 35 S. Ct. 582, 593, 59 L. Ed. 969.'
'When a State insists that a defendant be held to his choice of trial strategy and not be allowed to try a different tack on State habeas corpus, he may be deemed to have waived his claim and thus have no right to assert on federal habeas corpus. * * * However, this does not touch one of those extraordinary cases in which a substantial claim goes to the very foundation of a proceeding, as in Moore v. Dempsey, 261 U.S. 86, 43 S. Ct. 265, 67 L. Ed. 543. Cf. Ex parte Lange, 18 Wall 163, 21 L. Ed. 872; Ex parte Royall, 117 U.S. 241, 6 S. Ct. 734, 29 L. Ed. 868.' Id., 344 U.S. at page 503, 73 S. Ct. at page 444. Is this such a case?