Smith v. United States, 1950, 88 U.S. App.D.C. 80, 187 F.2d 192; Curran v. Shuttleworth, 6 Cir., 1950, 180 F.2d 780; Morton v. Steele, 8 Cir., 1950, 179 F.2d 956; McMullen v. Squier, 9 Cir., 1944, 144 F.2d 703; Wilhoit v. Hiatt, D.C.M.D.Pa.1945, 60 F.Supp. 664; cf. United States ex rel. Brogan v. Martin, 3 Cir., 1956, 238 F.2d 236. Trial errors, even though serious, may not be reviewed by habeas corpus unless involving jurisdiction of the court or '* * * deprivation of Constitutional rights amounting to a denial of the essence of a fair trial * * *.' Meyers v. United States, 1950, 86 U.S.App.D.C. 320, 181 F.2d 802, 803; Odell v. Hudspeth, 10 Cir., 1951, 189 F.2d 300.
However, relator does strenuously contend that the Pennsylvania decisions authorizing the admission in evidence of prior crimes, disassociated with that for which he was being tried, constitutes fundamental unfairness in violation of the due process clause.
We are of the opinion that this contention is devoid of substantial merit for the following reasons.
First, relator makes this contention even though he failed to object to the admission of his conviction of a prior felony in the Criminal Court of Allegheny County introduced for the same purpose as the court martial record, and despite his agreement, through competent counsel, to the admission in evidence of his prior testimony confirming the fact of his conviction by court martial for the felonious shootings in England.
Second, he failed to affirmatively assert this constitutional contention at his trial, in his motion for a new trial, or in his brief filed with the Supreme Court of Pennsylvania. He did assert it in his petition for certiorari in the Supreme Court of the United States. The opinions of the court en banc denying his motion for a new trial and the Pennsylvania Supreme Court's affirmance of his conviction do not reflect any consideration of the question in the light of the due process clause. Without decision, we entertain considerable doubt that he has exhausted his state remedies in this respect. Cf. Durley v. Mayo, 1956, 351 U.S. 277, at page 281, 76 S. Ct. 806, at page 809, 100 L. Ed. 1178; Meeks v. Lainson, 8 Cir., 1956, 236 F.2d 395, at page 397.
Third, the introduction of such evidence has been established as approved procedure and policy in Pennsylvania for 30 years in opinions
written by a long line of distinguished justices of the Pennsylvania Supreme Court; not always unanimous, however. See the dissenting opinions in Commonwealth v. Thompson, 1957, 389 Pa. 382, 405, 133 A.2d 207, 219, and Commonwealth v. DePofi, 1949, 362 Pa. 229, 249, 66 A.2d 649, 658.
Even though recognizing the impelling merit of these dissents, in view of the authoritative Pennsylvania background, we cannot say that the long declared policy expressed in the many decisions of the Pennsylvania Supreme Court "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Brown v. State of Mississippi, 1936, 297 U.S. 278, 285, 56 S. Ct. 461, 80 L. Ed. 682.
As stated by the Supreme Court of the United States in Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, at page 122, 54 S. Ct. 330, at page 338, 78 L. Ed. 674:
'The Constitution and statutes and judicial decisions of the Commonwealth of Massachusetts are the authentic forms through which the sense of justice of the people of that commonwealth expresses itself in law. We are not to supersede them on the ground that they deny the essentials of a trial because opinions may differ as to their policy or fairness.'
We hold that relator was accorded due process.
Passing on to relator's request to initiate a collateral attack on the merits of his court martial conviction by introducing into evidence the transcript and the testimony of the principals involved, it is plain that this request must be denied. Since relator did not institute in the state courts a collateral attack on the merits of the military conviction and failed to offer such evidence at his trial, he has not exhausted his state remedies in that respect. It appears that the state courts passed only on the admissibility of the court martial record in evidence; they have never been given the opportunity to pass upon the merits of the court martial conviction itself. It seems that the relator, without disclosing what the proposed evidence will reveal, desires this court to retry the military accusations, find that the convictions were erroneous, declare that the record thereof was a nullity and then hold that its admission in evidence at his murder trial violated the due process clause.
Absent a showing of exceptional circumstances or peculiar urgency, relator cannot offer evidence in a federal district court attacking the merits of his court martial conviction until that specific issue has been first presented to the state courts. Durley v. Mayo, supra; United States ex rel. Ackerman v. Johnston, D.C.W.D.Pa.1955, 139 F.Supp. 890, affirmed 3 Cir., 1956, 235 F.2d 958; United States v. Ragen, supra; Meeks v. Lainson, supra. 'It is axiomatic that the state courts are as much the guardians of the federal constitutional rights of its prisoners as are the federal courts.' Wiggins v. Ragen, 7 Cir., 1956, 238 F.2d 309, at page 313.
The Pennsylvania Supreme Court, citing eminent authority, made it quite clear that the decisions of court martials could not be attacked collaterally in the civil courts '* * * except to determine whether a court-martial had jurisdiction or whether it exceeded its powers; the guilt or innocence of the defendants cannot be inquired into.'
From this dictum,
relator without doubt would argue that it would be useless for him to now institute in the state courts a collateral attack on the merits of his military conviction. Without deciding whether it is or is not, it is to be emphasized that the basis of our decision on this issue is that he cannot first do in a federal court that which he failed to do or attempt in the state courts.
An order will be entered dismissing the petition.