Court probably has jurisdiction to issue an original writ of habeas corpus only when request has been made to a lower court and refused,2 for otherwise the Court would be exercising original jurisdiction in a field not specified in Article III of the Constitution. When application is made to an individual Supreme Court Justice, the practice is for him to refer it to the full Court. See Ex parte Clarke, 100 U. S. 399.

In any event, as a matter of practice the Supreme Court generally will insist that application for the writ be first presented to the appropriate lower court and the decision appealed to the highest court of a state or to the proper federal court of appeals. This procedure usually makes unnecessary the filing of a petition for an original writ of habeas corpus in the Supreme Court, for once the lower courts have acted on the application, the decision is reviewable in the Supreme Court by means of the ordinary petition for certiorari. Such is the procedure almost invariably followed, although the Supreme Court does have jurisdiction to issue an original writ of habeas corpus and has on very rare occasions exercised that power (see Ex parte Hudgings, 249 U. S. 378). The Court's refusal to issue the writ, without more, is not an adjudication on the merits and is to be taken as without prejudice to an application to any other

2 Habeas corpus has been sought originally in the Supreme Court by war criminals detained in foreign countries. The Court has refused to issue the writ in several such cases without finding it necessary to determine whether its original jurisdiction had been improperly invoked. Hirota v. MacArthur, 335 U. S. 876, 338 U. S. 197. At least four Justices sitting in 1950 (Chief Justice Vinson, Mr. Justice Reed, Mr. Justice Frankfurter and Mr. Justice Burton) are of the view that Article III prevents the Court from exercising jurisdiction over such cases; Mr. Justice Black, Mr. Justice Douglas, and the late Justices Murphy and Rutledge wished to hear argument on the question before "reaching a determination of that issue." See 335 U. S. 876 and cases cited in note on p. 877.

At the time this book went to press the Court had before it the question whether a prisoner in American custody abroad may seek a writ of habeas corpus in the federal district court in the District of Columbia. Johnson v. Eisentrager, (No. 306, 1949 Term), argued April 17, 1950, reported below sub nom. Eisentrager v. Forrestal, 174 F. 2d 961 (App. D.C.).

court, state or federal, for the relief sought. Ex parte Abernathy, 320 U. S. 219, 220.

Thus in Ex parte Spencer, 228 U. S. 652, 660, the Court made it clear that it would refuse to issue an original writ of habeas corpus, on petition of state prisoners, where the petitioners could have but failed to object on federal grounds "to their sentences when they were imposed, and successively to attack their validity in the appellate tribunals of the state and in this court. "The fact that the petitioners had sought habeas corpus in the state supreme court and in a federal district court did not alter the Court's conclusion. In Mooney v. Holohan, 294 U. S. 103, the Court denied leave to file a petition for an original writ of habeas corpus where the petitioner could have but failed to apply to a state court for the writ. As stated at page 115: "Orderly procedure . . requires that before this Court is asked to issue a writ of habeas corpus, in the case of a person held under a state commitment, recourse should be had to whatever judicial remedy afforded by the State may still remain open."

993

A like result was reached in Ex parte Hawk, 321 U. S. 114, where a state prisoner sought an original writ from the Court without first applying to a state trial court. The Court there stated the applicable principle in its most frequently quoted form (pp. 116-7): "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

See also Ex parte Botwinski, 314 U. S. 586 (failure to apply to state court for writ of error coram nobis); Ex parte Davis, 317 U. S. 592 (failure to wait for state court determination of application for writ of error coram nobis); Ex parte Williams, 317 U. S. 604 (failure to file an original application for habeas corpus in state supreme court); Ex parte Abernathy, 320 U. S.

of certiorari, have been exhausted." See also White v. Ragen, 324 U. S. 760, 764; Darr v. Burford, 339 U. S. 200.*

As to petitions for an original writ of habeas corpus filed by persons held under federal confinement, the Supreme Court applies the same principle. Save in exceptional circumstances, the Court will not entertain the petition where an adequate remedy may be had in a lower federal court. Ex parte Current, 314 U. S. 578; Ex parte Spaulding, 317 U. S. 593; Ex parte Hawk, 318 U. S. 746; and see Ex parte Abernathy, 320 U. S. 219. Once a federal district court has passed upon an application and the matter has been reviewed by a court of appeals, the case becomes subject to review by the Supreme Court on writ of certiorari.

Where the state courts have considered and adjudicated the merits of the federal claim of one confined under state authority, the proper procedure is then to petition the Supreme Court for a writ of certiorari. Failure to do so will in most cases prove fatal to one's right to proceed subsequently in a federal court by petition for habeas corpus. Darr v. Burford, 339 U. S. 200. Only in special circumstances can a departure from

The 1948 recodification of the Judicial Code (28 U.S.C. §2254) gave legislative recognition to the above-quoted principle set forth in the Hawk case. It provides:

"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."

5

such procedure be justified. However, even if a petition for certiorari has been filed and the Supreme Court has declined to review a state court judgment denying relief, "a federal court will not ordinarily re-examine upon writ of habeas corpus the questions thus adjudicated. Salinger v. Loisel, 265 U. S. 224, 230-2. [See also Goodwin v. Smyth, decided April 13, 1950 (C.A.4).] 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, 115, 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; Ex parte Davis, 318 U. S. 412, a federal court should entertain his petition for habeas corpus, else he would be remediless. In such a case he should proceed in the federal district court before resorting to this Court by petition for habeas corpus." Ex parte Hawk, 321 U. S. 114, 118.

C. Procedure in applications for extraordinary writs

Since applications for the extraordinary writs are original cases in the Supreme Court (see p. 259, supra), their procedure is determined by Rule 5, and is the same as for cases falling within the Court's original jurisdiction. This has been described in Chapter VIII, immediately preceding, at pp. 255-8 and will

5 "But where the decision of the state court is that the remedy of habeas corpus is not available under the state practice, or its decision is based upon some other adequate non-federal ground, it is unnecessary for the petitioner to ask this Court for certiorari in order to exhaust his state remedies, since we would lack jurisdiction to review the decision of the state court; and the denial of certiorari by this Court would not preclude a district court from inquiring into the Federal question presented to, but not considered by, the state court." White v. Ragen, 324 U. S. 760, 765. See also Wade v. Mayo, 334 U. S. 672, as "corrected" in Darr v. Burford, 339 U. S. 200, 210 where the failure to seek certiorari from the state court judgment was justified because of the grave doubt then existing as to whether that judgment constituted an adjudication of the federal question.

not be repeated. But it is necessary to deal with some special features of the procedure in relation to the extraordinary writs.

In applications for writs of mandamus or prohibition, the relief is sought against the judge of the lower court, and the judge or court is the respondent. The case may be entitled, "Ex parte Doe" (the petitioner), or "In the matter of the Petition of Doe," or "Doe v. United States District Court for the Southern District of New York," or "Doe v. the named lower court judge or judges." The adversary captions last mentioned are more informative, both as to the identity of the parties and the nature of the case, and are to be preferred. In such cases, the judge or court is normally, though not necessarily, represented by counsel for the party opposing the petitioner below, who is, of course, the real opposing party. The opposing party may also move for leave to intervene or appear separately in the proceeding.

In habeas corpus cases various unusual forms of caption have been used, such as "State (or United States) ex rel. John Prisoner v. George Custodian," "Ex parte John Prisoner," "In re John Prisoner." The first form, which has only an historical reason for its existence, is thoroughly deceptive, since it suggests that the government is on the side of the prisoner, whereas in fact the contrary is true. The form most commonly used now is the same as in any other lawsuit, the prisoner being the complainant or petitioner and the custodian the defendant or respondent. E.g., "John Prisoner v. George Custodian." This form is the most informative, and accordingly is recommended.

The caption in an application for the extraordinary writ of certiorari under $1651 also carries the names of the adversary parties. Indeed, although this writ is available in cases in which the ordinary writ for certiorari under §§12541257 may not be employed, the extraordinary writ, like the ordinary one, is an order to the lower court to certify the record