Before WATERMAN, MOORE and SMITH, Circuit Judges.
Relator, Charles Noia, and two others, Frank Bonino and Santo Caminito, were convicted twenty years ago under the laws of the State of New York for the crime of murder in the first degree upon an indictment alleging a felony murder in that they committed a homicide while engaged in an armed robbery. At trial the State offered nothing to connect any of the three with the crime except their several confessions, admitted into evidence over objections by defense counsel on the ground that the confessions were involuntarily made. Each defendant testified in his own defense and introduced evidence that each of the three confessions was obtained by police coercion in violation of the Fourteenth Amendment. The issue of the voluntariness of these confessions was submitted to the jury, the judge charging that if the confessions were found to be involuntary ones the defendants should be acquitted. The jury returned verdicts of guilty but, as it may do in New York in felony murder cases, recommended clemency. The judge accepted the jury recommendations and sentenced each of the three defendants to life imprisonment. Necessarily implied in the verdicts was a jury finding that the three confessions were not involuntary.
Bonino and Caminito appealed their convictions to the New York Supreme Court, Appellate Division, Second Department, and, on affirmance by that court, People v. Bonino, 265 App.Div. 960, 38 N.Y.S.2d 1019 (1942), appealed to the New York Court of Appeals, 291 N.Y. 541, 50 N.E.2d 654 (1943). Noia did not appeal. Both of the appellate tribunals considered whether the two appealing defendants had been denied due process of law by the use of their allegedly coerced confessions. The courts rejected the appellants' contentions, and affirmed the convictions. Neither Caminito nor Bonino petitioned the United States Supreme Court for certiorari at that time. Later, on two different occasions, Caminito moved the New York Court of Appeals for reargument of his appeal. These motions were denied, People v. Caminto, 297 N.Y. 882, 79 N.E.2d 277 (1948); 307 N.Y. 686, 120 N.E.2d 857 (1954).*fn1 After the second denial Caminito filed a petition in the U.S. Supreme Court for certiorari, which was denied, 348 U.S. 839, 75 S. Ct. 46, 99 L. Ed. 662 (1954).
Caminito forthwith petitioned the United States District Court for the Northern District of New York for the issuance of a federal writ of habeas corpus. He once more claimed that he had been denied due process of law at his New York State trial by the admission against him of his coerced confession. His petition was denied, United States ex rel. Caminito v. Murphy, 127 F.Supp. 689 (1955), but on appeal to our court the district court was reversed, 2 Cir., 222 F.2d 698 (1955). We held, as a matter of law, that Caminito's confessions had been coerced in violation of his right to due process of law under the Fourteenth Amendment and that consequently his conviction was void. A petition for certiorari to the U.S. Supreme Court was denied, 350 U.S. 896, 76 S. Ct. 155, 100 L. Ed. 788 (1955).
Thereupon Bonino, the other defendant who had appealed his conviction, petitioned the New York Court of Appeals for reargument of his appeal. That court granted his application, reversed the conviction, and ordered that upon retrial his coerced confession not be introduced against him. People v. Bonino, 1 N.Y.2d 752, 152 N.Y.S.2d 298, 135 N.E.2d 51 (1956). In fact, neither Caminito nor Bonino has ever been retried, as indeed it would appear to be impossible to obtain their convictions without the use of these confessions; and, though they continue to be subject to indictment, they are free from restraint.
As previously stated, Noia, the relator here, did not appeal from his conviction. Hence the post-conviction procedure of applying for a belated reargument in the New York Court of Appeals, utilized first by Caminito and then by Bonino, was unavailable to him. Nevertheless, Noia was convicted at the same trial as were the other two, and convicted by the same means; therefore, if their convictions were void it seemed reasonable to incarcerated Noia that his conviction was also void. He thereupon moved to set aside his conviction and sentence by a proceeding in Kings County Court, the court wherein he was originally tried, convicted and sentenced. Noia could maintain no ground for setting aside his conviction other than the contention that his coerced confessions were inadmissible, a ground urged upon the trial court at the time of trial. He argued that since this ground had sufficed to void the convictions of his companion defendants, Caminito and Bonino, the sentencing court must have inherent power to set aside his conviction also, a conviction obtained through the same denial of due process.
The Kings County Court found that Noia's conviction was manifestly unlawful and ordered it vacated. People v. Noia, 3 Misc.2d 447, 158 N.Y.S.2d 683 (County Ct.1956). The State appealed to the Appellate Division, Second Department, where the decision of the County Court was reversed, 4 A.D.2d 698, 163 N.Y.S.2d 796 (1957). In a memorandum opinion the Appellate Division unanimously held:
"It was error to vacate the judgment. The respondent's contentions with respect to the illegality of his conviction involve matters which could have been adequately reviewed on appeal from the judgment of conviction. No appeal was taken. This being so, the court was without authority to grant the application (People v. Sadness, 300 N.Y. 69, 89 N.E.2d 188; People v. Russo, 284 App.Div. 763, 135 N.Y.S.2d 475; People v. Palumbo, 282 App.Div. 1059, 126 N.Y.S.2d 381)." 163 N.Y.S.2d 796, 797.
Noia, in turn, appealed to the New York Court of Appeals, which unanimously affirmed the Appellate Division. People v. Noia, reported sub nom., People v. Caminito, 3 N.Y.2d 596, 170 N.Y.S.2d 799, 148 N.E.2d 139, cert. denied, Noia v. People of State of New York, 357 U.S. 905, 78 S. Ct. 1149, 2 L. Ed. 2d 1156 (1958). Relying upon People v. Rizzo, 246 N.Y. 334, 339, 158 N.E. 888, 890, 55 A.L.R. 711 (1927), the Court of Appeals held that Noia's failure timely to appeal from his conviction precluded him from obtaining the post-conviction relief he sought. The court went on to discuss the revitalization in New York of the extraordinary writ of coram nobis, see Lyons v. Goldstein, 290 N.Y. 19, 47 N.E.2d 425, 426, 146 A.L.R. 1422 (1943), and pointed out that, even though the scope of that common law writ had been somewhat expanded beyond its original office by the New York courts, it was still only usable in New York for the purpose for which it was initially designed, that of presenting facts to the court of which the court was not aware at the time of the judgment sought to be vacated. 3 N.Y. at 601, 170 N.Y.S.2d at 804, 148 N.E.2d at 142. Therefore, since the ground upon which Noia sought to have his conviction set aside was apparent on the record at the time when he could have appealed, no post-conviction remedy was available to him. This was held to be so, even though the convictions of Caminito and Bonino had been vacated, the former by action of a federal court after Caminito had fully prosecuted his appeal through the New York State Courts, and the latter by a reversal upon reargument in the New York Court of Appeals itself. 3 N.Y. at 600, 170 N.Y.S.2d at 803, 148 N.E.2d at 142.*fn2
After this adverse decision by the highest court of New York and the subsequent denial of his petition for a writ of certiorari in the U.S. Supreme Court, Noia petitioned the U.S. District Court for the Southern District of New York for a writ of habeas corpus in order to present to a federal court his claim that he was convicted without due process of law. Before a federal district judge could consider the merits of relator's application, Noia had to satisfy the threshold requirement set forth in 28 U.S.C. § 2254 (1958), which provides that:
"§ 2254. State custody; remedies in State Courts
"An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
"An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented."
The purport of the statute was exhaustively considered by the district judge who, in a written opinion, reported at 183 F.Supp. 222, concluded that a study of the authorities required that the statute be interpreted so as to foreclose any petitioner who had exhausted all presently available state remedies from obtaining habeas corpus relief if he had failed to pursue a previously available state remedy during the time when that remedy had been available to him. Inasmuch as Noia had not timely appealed his conviction when he could have done so, and inasmuch as the New York courts as a result of this delinquency had subsequently dismissed his latterly-brought coram nobis proceeding without reaching the merits of his constitutional claims, the federal district judge concluded that Noia had not exhausted his state remedies as required by the statute. In an effort to justify the failure timely to appeal his conviction relator asserted that he did not then appeal because he had no funds and he did not wish to cause his family further expense. The warden's evidence tended to indicate that Noia had not appealed for fear that upon a retrial he might receive the death penalty. The court held relator's explanation insufficient to excuse the procedural omission and so reluctantly dismissed relator's habeas corpus petition. He found it unnecessary to make any findings with reference to the warden's suggestion. The judge recognized that it was clear that Noia, like Caminito and Bonino, could not have been convicted except for the introduction at trial of the coerced confession, and he found that Noia was being held in a "patently unconstitutional detention," 183 F.Supp. at 225, and that prior to trial Noia had been subjected to precisely the same coercion as were his two codefendants, who, though convicted with him, were now "virtually scot free." 183 F.Supp. at 227.
The first question before us is whether, inasmuch as his conviction was not appealed, Noia waived his undeniable constitutional right of being tried without his coerced confession in evidence. The answer to this question is to be determined according to federal law. The issue of whether there has been a waiver of a federal right is to be federally determined, even if the alleged waiver is the failure to take a particular state procedural step. See Rice v. Olson, 324 U.S. 786, 65 S. Ct. 989, 89 L. Ed. 1367 (1945); Davis v. O'Hara, 266 U.S. 314, 45 S. Ct. 104, 69 L. Ed. 303 (1924); cf. Dice v. Akron, C. & Y.R.R., 342 U.S. 359, 72 S. Ct. 312, 96 L. Ed. 398 (1952). The Supreme Court has said that waiver is ordinarily "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938). The highest Court has instructed us to indulge all reasonable presumptions against the waiver of a fundamental constitutional right. Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S. Ct. 809, 81 L. Ed. 1177 (1937); Hodges v. Easton, 106 U.S. 408, 412, 1 S. Ct. 307, 27 L. Ed. 169 (1883). As was said in Ohio Bell Tel. Co. v. Public Utilities Comm., 301 U.S. 292, 307, 57 S. Ct. 724, 731, 81 L. Ed. 1093 (1937), "We do not presume acquiescence in the loss of fundamental rights." We must apply these principles to Noia's case.
Sometimes, it is true, courts have said that a litigant has "waived" a right in circumstances where it is obvious that a known right was not intentionally abandoned within the standard announced in Johnson v. Zerbst, supra. In some instances, we fear, "waiver" has been misused and abused, twisted and tortured, in order either to dispose of a bothersome factual ambiguity or to reach results that would have been more accurately supportable upon other grounds. See Reitz, Federal Habeas Corpus: Impact of an Abortive State Proceeding, 74 Harv.L.Rev. 1315, 1333 (1961). It can truly be said that in such cases the term "waiver" is used to describe, rather than to explain, the result reached. We do not wish to fall into this intellectual trap. If the term "waiver" does indeed identify some legal concept relevant to the case before us other than that defined in Johnson v. Zerbst, it must be contained within one of those combinations where law is applied to fact which it is more suitable to discuss below under a different conceptual label.
We turn to a consideration of whether Noia waived his constitutional right within the ambit of the term as it was defined in Johnson v. Zerbst. It would seem that a conscious and willing failure to appeal could indeed be a form of waiver. Brown v. Allen, 344 U.S. 443, 503, 73 S. Ct. 397, 437, 97 L. Ed. 469 (1953) (opinion of Frankfurter, J.); cf. Frank v. Mangum, 237 U.S. 309, 343, 35 S. Ct. 582, 59 L. Ed. 969 (1915). If a convicted defendant is clearly apprised of a violation of his constitutional rights and of the procedure available to him for vindicating those rights, and if he is under no unfair restraint preventing this vindication, his failure to employ that procedure can be said to be an intentional relinquishment of a known right. But see Reitz, supra, at 1335.
It has been asserted that a defendant cannot waive those rights without enforcement of which the proceedings against him would be fundamentally unfair. Reitz, supra, at 1333. Among such non-waivable rights would be the right to be tried by an impartial tribunal, the right to be tried by a court free from mob domination - and the right not to be convicted solely upon the basis of a coerced confession. Perhaps Mr. Justice Frankfurter was referring to this concept of non-waivable rights when he said:
"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. Such considerations of orderly appellate procedure give rise to the conventional statement that habeas corpus should not do service for an appeal. See Adams v. United States ex rel. McCann, supra [317 U.S.], at page 274 [63 S. Ct. at page 239]. Compare Sunal v. Large, 332 U.S. 174 [67 S. Ct. 1588, 91 L. Ed. 1982], with Johnson v. Zerbst, 304 U.S. 458, 465-469 [58 S. Ct. 1019, 1023-1025, 82 L. Ed. 1461]. 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]." (Emphasis added.) Brown v. Allen, supra, 344 U.S. at 503, 73 S. Ct. at 444.
Be that as it may, adopting, as the Supreme Court has instructed us, all reasonable inferences against Noia's having waived a fundamental constitutional right, we conclude that relator did not waive his right under the Fourteenth Amendment not to be tried and convicted solely upon his coerced confession. At the time Noia made his choice not to appeal, he had just been convicted by a New York court and jury solely upon the confession which had been wrung from him. But it was not at all clear that Noia could convince an appellate court of the unconstitutionality of his treatment. The police at the trial only admitted to extracting his acknowledgment of guilt by methods far more subtle than brute force.*fn3 And even if Noia had succeeded in obtaining a reversal, he faced the possibility of a new trial in which he might be convicted again and receive the death penalty instead of life imprisonment. He had just received very shoddy treatment at the hands of the New York police - treatment that he then believed was approved by judicial authorities. Why should he expect a better brand of justice from the same authorities in the future? The posture of his case was far different immediately following the trial from what it is now as a result of the intervening events which we have outlined above. We cannot believe that Noia would consciously and willingly have surrendered his constitutional right had he known then what he knows now; that there had been an undoubted violation of this right and the rectification of the wrong done him would mean his freedom, not his death. Perhaps Noia should be denied relief for some other reason, which we will discuss presently, but surely not because of any conscious or intentional waiver on his part of a right known to him to have his conviction set aside because that conviction had been obtained by depriving him of a constitutional right.
Exhaustion of State Remedies
We must now inquire whether relator's failure to appeal his conviction precludes him from relief under the Great Writ because of the requirement in 28 U.S.C. § 2254, quoted above, that a petitioner exhaust his state remedies before seeking federal habeas corpus. In so doing it will be helpful to review the applicable legal history.
Until the year 1867 habeas corpus in the federal courts was, except for rare instances, only available to those detained in federal prisons. In that year, however, as part of its Reconstruction legislation, Congress provided that the United States courts could grant this writ in "all cases where any person may be restrained of his * * * liberty in violation of the constitution, or of any treaty or law of the United States * * *." 14 Stat. 385. With only slight changes in language this statute has come down to the present day as 28 U.S.C. § 2241. This legislation gave the lower federal courts a broad jurisdiction to inquire into the constitutionality of the detention of any prisoner incarcerated pursuant to a conviction in a state court. Ex parte Royall, 117 U.S. 241, 247, 6 S. Ct. 734, 29 L.Ed 868 (1886).
But in applying the statute the federal courts were hesitant to reopen matters that had been fully litigated in the state trial and state appellate courts. It was not generally accepted until well into this century that the federal habeas corpus court had the duty to make an independent review of the details of the procedure accorded the defendant in the state court in order to determine whether he had received due process of law there as required of the states by the Fourteenth Amendment. As late as 1915 the Supreme Court sanctioned a district court's refusal to inquire into the merits of an allegation of mob domination at the relator's trial because the state courts had reviewed this issue fully, first on the defendant's motion for a new trial and again on appeal to the state supreme court. Frank v. Mangum, 237 U.S. 309, 35 S. Ct. 582, 59 L. Ed. 969 (1915). A similar approach had been taken by the Court in In re Wood, 140 U.S. 278, 287, 11 S. Ct. 738, 35 L. Ed. 505 (1891) (alternative holding).
Eight years after the decision in Frank v. Mangum, however, in Moore v. Dempsey, 261 U.S. 86, 43 S. Ct. 265, 67 L. Ed. 543 (1923), the Supreme Court clearly recognized the duty of a federal judge to determine for himself whether the petitioner was convicted pursuant to due process of law.*fn4 Again the allegation was mob domination. The Court stated:
"We assume in accordance with that case that the corrective process supplied by the State may be so adequate that interference by habeas corpus ought not to be allowed. It certainly is true that mere mistakes of law in the course of a trial are not to be corrected in that way. But if the case is that the whole proceeding is a mask - that counsel, jury and judge were swept to the fatal end by an irresistible wave of public passion, and that the State Courts have failed to correct the wrong, neither perfection in the machinery for correction nor the possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob can prevent this Court from securing to the petitioners their constitutional rights.
"* * * We shall not say more concerning the corrective process afforded to the petitioners than that it does not seem to us sufficient to allow a Judge of the United States to escape the duty of examining the facts for himself when if true as alleged they make the trial absolutely void." Id. at 91, 92, 43 S. Ct. at 266, 267.
Ever since that momentous decision the Supreme Court has continued to subject the administration of state criminal justice to the independent inquiry of federal courts pursuant to a petition for habeas corpus. E.g., Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935), Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 437, 97 L. Ed. 469 (1953). And, through the years, in this review of state trials, the United States courts have developed an ever expanding concept of due process. See Darr v. Burford, 339 U.S. 200, 221, 70 S. Ct. 587, 94 L. Ed. 761 (1950) (Frankfurter, J., dissenting), Reitz, supra, at 1329.
Meanwhile, the federal courts in habeas corpus cases were also developing another theory, this one being calculated to reduce the instances of federal habeas corpus review of state convictions. This was the requirement that a prisoner incarcerated pursuant to a state conviction exhaust his available state remedies before he seek relief under federal habeas corpus. Nineteen years after the passage of the habeas corpus statute which was to become 28 U.S.C. § 2241, the Supreme Court handed down the first opinion expounding the requirement that a habeas corpus petitioner first exhaust his state remedies. Ex parte Royall, 117 U.S. 241, 6 S. Ct. 734, 29 L. Ed. 868 (1886). In that case it was held that the federal court in its discretion might withhold the federal writ when the defendant sought it before his trial in the state court. See also United States ex rel. Drury v. Lewis, 200 U.S. 1, 26 S. Ct. 229, 50 L. Ed. 343 (1906). By way of dictum in the Royall case, the Court also recognized that, even when federal habeas corpus was sought after trial in the state court, the federal court could, in the proper exercise of its discretion, withhold the writ so as to require the petitioner to carry his case through the state appellate system and thereafter to bring a writ of error in the U.S. Supreme Court. In accordance with this dictum the Court, that same term, denied an original petition brought after trial but beofre the petitioner had appealed to the state supreme court. Ex parte Fonda, 117 U.S. 516, 6 S. Ct. 848, 29 L. Ed. 994 (1886). The United States Supreme Court found no obstacle preventing the defendant in that case from first appealing to the highest court of the state and then, if the ultimate state decision were adverse, seeking review of that court's determination by writ of error. Other cases in which the Court placed a similar duty upon the defendant were United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 46 S. Ct. 1, 70 L. Ed. 138 (1925); In re Wood, 140 U.S. 278, 289-290, 11 S. Ct. 738, 35 L. Ed. 505 (1891) (alternative holding); In re Frederich, 149 U.S. 70, 13 S. Ct. 793, 37 L. Ed. 653 (1893); People of State of New York v. Eno, 155 U.S. 89, 15 S. Ct. 30, 39 L. Ed. 80 (1894); Whitten v. Tomlinson, 160 U.S. 231, 16 S. Ct. 297, 40 L. Ed. 406 (1895); Baker v. Grice, 169 U.S. 284, 18 S. Ct. 323, 42 L. Ed. 748 (1898); Tinsley v. Anderson, 171 U.S. 101, 18 S. Ct. 805, 43 L. Ed. 91 (1898); Davis v. Burke, 179 U.S. 399, 21 S. Ct. 210, 45 L. Ed. 249 (1900); Urquhart v. Brown, 205 U.S. 179, 27 S. Ct. 459, 51 L. Ed. 760 (1907); cf. Riggins v. United States, 199 U.S. 547, 26 S. Ct. 147, 50 L. Ed. 303 (1905); Glasgow v. Moyer, 225 U.S. 420, 32 S. Ct. 753, 56 L. Ed. 1147 (1912)
In Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935), the Supreme Court added a further requirement to that of fully carrying forward a state appeal, the requirement that, before seeking relief under federal habeas corpus, a petitioner exhaust the collateral remedies still open to him in the state courts, such as the state writ of habeas corpus. See also Ex parte Hawk, 321 U.S. 114, 64 S. Ct. 448, 88 L. Ed. 572 (1944) (per curiam); Ex parte Botwinski, 314 U.S. 586, 62 S. Ct. 476, 86 L. Ed. 473 (1942); Ex parte Davis, 317 U.S. 592, 63 S. Ct. 26, 87 L. Ed. 484 (1942). And the necessity of appealing from the denial of any of these state collateral remedies before bringing a petition for federal habeas corpus was announced in Ex parte Davis, 318 U.S. 412, 63 S. Ct. 679, 87 L. Ed. 868 (1943) (per curiam).*fn5
The Supreme Court recognized, however, that exceptional cases might be presented in which the petitioner's duty to exhaust available state remedies would be excused and the federal court could forthwith entertain the petition for the Great Writ. Such was the famous case of In re Neagle, 135 U.S. 1, 10 S. Ct. 658, 34 L. Ed. 55 (1890). The petitioner there, a United States marshal, was imprisoned by the sheriff of San Joaquin County, California, on a charge of murder, because he had shot and killed one David S. Terry in the performance of the marshal's federally imposed duty to protect the life of Mr. Justice Field of the United States Supreme Court. Neagle sought release under the federal writ well in advance of trial in the state court. Counsel for the State of California asserted that an issuance of the writ of habeas corpus would deprive the state of its right to try the defendant for the crime charged. The Supreme Court (Field, J., not sitting), nevertheless affirmed the United States Circuit Court for the Northern District of California, which had issued the writ of habeas corpus and had ordered the discharge of the prisoner. In re Loney, 134 U.S. 372, 10 S. Ct. 584, 33 L. Ed. 949 (1890) was another exceptional case. There also the petitioner was discharged under the Great Writ from state detention before trial. The defendant was incarcerated awaiting trial in a state court on a charge of perjury in that he allegedly gave false testimony before a notary public regarding the contested election of a member of Congress. In upholding an issuance of the federal writ, the Supreme Court held that the state court had no jurisdiction to entertain an action so inseparably connected with the functioning of the National Government. Another case of the exceptional type was Wildenhus' Case, 120 U.S. 1, 7 S. Ct. 385, 30 L. Ed. 565 (1887). In that case the Court, upon a petition for federal habeas corpus prior to trial in the state court, decided the question whether the arrest of a foreign crewman by state officers was contrary to the provisions of a treaty between this country and the Kingdom of Belgium. The Court held that the arrest did not violate the treaty. It has been said that the exceptional character of these three cases, which permitted the by-passing of the state remedial processes, was that they involved either the operations of the federal government or its relations with other nations. Whitten v. Tomlinson, supra, 160 U.S. at 241, 16 S. Ct. 297.
In 1944 in the well-known per curiam opinion of Ex parte Hawk, 321 U.S. 114, 64 S. Ct. 448, 88 L. Ed. 572 (1944), the Supreme Court set forth the exhaustion doctrine as it stood at the end of its prestatutory development. The Court stated:
"Ordinarily an application for habeas corpus by one detained under a state court judgment of conviction for crime will be entertained by a federal court only after all state remedies available, including all appellate remedies in the state courts and in this Court by appeal or writ of certiorari, have been exhausted." 321 U.S. at 116-117, 64 S. Ct. at 450.
"* * * But where resort to state court remedies has failed to afford a full and fair adjudication of the federal contentions raised, either because the state affords no remedy, see Mooney v. Holohan, supra, [294 U.S.] 115 [55 S. Ct. 343, 79 L. Ed. 791, 98 A.L.R. 406], or because in the particular case the remedy afforded by state law proves in practice unavailable or seriously inadequate, cf. Moore v. Dempsey, 261 U.S. 86 [43 S. Ct. 265, 67 L. Ed. 543]; Ex parte Davis, 318 U.S. 412 [63 S. Ct. 679, 87 L. Ed. 868], a federal court should entertain his petition for habeas corpus, else he would be remediless." 321 U.S. at 118, 64 S. Ct. at 450.
See, also, White v. Ragen, 324 U.S. 760, 767, 65 S. Ct. 978, 89 L. Ed. 1348 (1945); Marino v. Ragen, 332 U.S. 561, 564, 68 S. Ct. 240, 92 L. Ed. 170 (1947)(Rutledge, J., concurring); Wade v. Mayo, 334 U.S. 672, 679, 68 S. Ct. 1270, 92 L. Ed. 1647 (1948); Young v. Ragen, 337 U.S. 235, 238, 69 S. Ct. 1073, 93 L. Ed. ...