Mr. Justice Reed
delivered the opinion of the Court.
Petitioner Darr, an inmate of the Oklahoma state penitentiary, has been denied federal habeas corpus for failure to exhaust his other available remedies. Petitioner’s omission to apply here for certiorari from the state court’s denial of habeas corpus was held an error, fatal to consideration on the merits. Therefore the merits of petitioner’s claims of imprisonment in violation of the Constitution are not before us. The petition for certiorari requires us to pass solely upon the correctness of the lower court’s view that ordinarily a petition for certiorari must be made to this Court from a state court’s refusal of collateral relief before a federal district court will consider an application for habeas corpus on its merits.
Petitioner was serving a term in the Oklahoma state penitentiary when, on November 28, 1930, he was summoned to appear in another Oklahoma county to plead to two separate charges of armed bank robbery. In January of 1931, he was tried by jury, and convicted on the first charge; petitioner then pleaded guilty to the second. He was sentenced to two terms of forty years each, to run consecutively, and the first sentence is now being served. No appeal from the conviction was taken, but in 1947 petitioner applied to the Oklahoma Court of Criminal Appeals for habeas corpus. Judging only from the state court’s opinion, for the original petition is not included in the record before us, petitioner alleged in the state court that he had been without funds to employ counsel, that he had not had the aid of counsel of his own choosing, and had not been provided sufficient time to procure and prepare witnesses for his defense. These allegations were reviewed by the state court and the writ was denied on the merits. No application for certiorari was made here.
Petitioner then filed in the United States District Court for the Eastern District of Oklahoma the application for habeas corpus here at bar. The allegations were those passed upon by the Oklahoma Court of Criminal Appeals, with the addition of a claim that petitioner’s plea of guilty to the second armed robbery charge had been coerced. After hearing petitioner’s testimony in open court, the District Judge examined into the merits sufficiently to assure himself that no extraordinary circumstances existed sufficient to justify federal inquiry into the merits of petitioner’s allegations without the exhaustion of all other available remedies. He then concluded that the writ must be discharged as to the first sentence since petitioner had not applied for certiorari here from the state court’s denial of habeas corpus. The allegations of a coerced plea underlying the second sentence could not properly be considered, held the court, first, because petitioner had not raised the point in the state proceeding, and further because petitioner is not presently being detained under that sentence. Therefore no adjudication on the merits was given. The Court of Appeals for the Tenth Circuit affirmed, one judge dissenting from the proposition that application for certiorari is a requisite step in the exhaustion of remedy.
It is not argued that the courts below state the law incorrectly insofar as the second conviction is concerned. It has long been settled that the federal courts will not consider on habeas corpus claims which have not been raised in the state tribunal; and in any event, it is unquestioned doctrine that only the sentence being served is subject to habeas corpus attack. Further, since neither court based its conclusion upon petitioner’s failure to appeal from his initial conviction, that issue is not before us. There is no problem of jurisdiction or power in the federal courts to consider applications for habeas corpus. Nor is there at issue the effect of a refusal of certiorari by this Court upon future applications for federal habeas corpus by the state prisoner. The issue of exhaustion of remedy, however, is not only of vital concern to those who would seek the protection of the Great Writ, but in the case of state prisoners is crucial to the relationship between the state and federal sovereignties in the exercise of their coordinate power over habeas corpus. Doubt respecting this issue should not go unresolved. We therefore granted certiorari. 337 U. S. 923.
The writ of habeas corpus commands general recognition as the essential remedy to safeguard a citizen against imprisonment by State or Nation in violation of his constitutional rights. To make this protection effective for unlettered prisoners without friends or funds, federal courts have long disregarded legalistic requirements in examining applications for the writ and judged the papers by the simple statutory test of whether facts are alleged that entitle the applicant to relief.
This favorable attitude toward procedural difficulties accords with the salutary purpose of Congress in extending in 1867 the scope of federal habeas corpus beyond an examination of the commitment papers under which a prisoner was held to the “very truth and substance of the causes of his detention.” Through this extension of the boundaries of federal habeas corpus, persons restrained in violation of constitutional rights may regain their freedom. But, since the 1867 statute granted jurisdiction to federal courts to examine into alleged unconstitutional restraint of prisoners by state power, it created an area of potential conflict between state and federal courts. As it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation, the federal courts sought a means to avoid such collisions. Solution was found in the doctrine of comity between courts, a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.
Since habeas corpus is a discretionary writ, federal courts had authority to refuse relief as a matter of comity until state remedies were exhausted. Through this comity, the doctrine of exhaustion of state remedies has developed steadily from cases refusing federal habeas corpus before state trial to a statutory direction that federal courts shall not grant the writ to a state prisoner until state remedies have been exhausted. Ex parte Royall, decided in 1886, held that a federal district court had jurisdiction to release before trial a state prisoner who was held in violation of federal constitutional rights, but it approved denial of the writ as a matter of discretion. It was not to be presumed that “the decision of the State court would be otherwise than is required by the fundamental law of the land, or that it would disregard the settled principles of constitutional law announced by this court . . . .” Analogy was found in earlier cases where state and federal jurisdiction to attach property had been found to overlap. Apropos were the words of the Court in Covell v. Heyman:
“The forbearance which courts of co-ordinate jurisdiction, administered under a single system, exercise towards each other, whereby conflicts are avoided, by avoiding interference with the process of each other, is a principle of comity, with perhaps no higher sanction than the utility which comes from concord; but between State courts and those of the United States, it is something more. It is a principle of right and of law, and therefore, of necessity.”
In the same term of court the doctrine was advanced to its next stage, for in Ex parte Fonda the prisoner sought his federal relief in this Court after his state conviction but before he had prosecuted his appeal to the state appellate tribunal. Stressing the importance of noninterference with the orderly processes of appellate review, this Court denied the writ, for if the trial court had erred to the prejudice of petitioner’s constitutional rights, it could not be assumed that the state appellate court would suffer the error to go uncorrected.
The established doctrine was applied to meet the variations presented by the eases. By 1891, it was clear that a federal circuit court committed no error in refusing a writ on the ground that the petitioner had not come to this Court on writ of error; and a great body of cases affirmed this holding that the petitioner should be “put to his writ of error.” Baker v. Grice states the reason for the rule that after a final determination of the case by the state court, the federal courts will even then generally leave the petitioner to his remedy by writ of error from this Court.
“. . . It is an exceedingly delicate jurisdiction given to the Federal courts by which a person under an indictment in a state court and subject to its laws may, by the decision of a single judge of the Federal court, upon a writ of habeas corpus, be taken out of the custody of the officers of the State and finally discharged therefrom, and thus a trial by the state courts of an indictment found under the laws of a State be finally prevented.”
And to this the Court added, in Markuson v. Boucher, the explicit reason why the exhaustion principle must extend to remedies available in this Court as well as those open in the state tribunals.
“The jurisdiction is more delicate, the reason against its exercise stronger, when a single judge is invoked to reverse the decision of the highest court of a State in which the constitutional rights of a prisoner could have been claimed . . . .”
In 1913, a petitioner was denied an original writ here even though he had appealed and had applied for state habeas corpus, with the comment that writ of error to this Court was required. And following next upon the heels of an adjudication that a state habeas corpus action is a “suit” yielding a final reviewable judgment, came the leading case of Mooney v. Holohan clearly establishing the rule that available collateral attacks in the state tribunals must be exhausted in addition to direct attacks on the conviction. In 1944 the unanimous per curiam opinion of Ex parte Hawk stated the fully developed and established exhaustion doctrine in its most frequently quoted form.
“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.”
The doctrine of Ex parte Hawk has been repeatedly approved, and in White v. Ragen the same Court again unanimously restated that principle in the clearest language.
“Where the highest state court in which a decision could be had considers and adjudicates the merits of a petition for habeas corpus, state remedies, including appellate review, are not exhausted so as to permit the filing of a petition for habeas corpus in a federal district court, unless the federal question involved is presented to this Court on certiorari or appeal from the state court decision.”
Thus comity, which had constrained the lower federal courts to refuse a grant of the Great Writ when remedies in state courts were still open, brought forth the related rule that lower federal courts ordinarily will not allow habeas corpus if the applicant has not exhausted his remedy in this Court by certiorari or appeal from state courts’ refusal of relief on collateral attack.
In Wade v. Mayo alone, a case decided less than four years later, does there appear language that may be construed as a departure from the established rule. The District Court was allowed to hear Wade’s petition for habeas corpus even though he had not applied here for certiorari, because there was grave doubt whether the state judgment constituted an adjudication of a federal question. The Court said, at p. 682:
“That doubt was such as to make it reasonably certain that this Court would have denied certiorari on the theory that an adequate state ground appeared to underlie the judgment. His failure to make this futile attempt to secure certiorari accordingly should not prejudice his subsequent petition for habeas corpus in the District Court.”
We had pointed out in White v. Ragen, supra, a per curiam expressly reiterating the Hawk doctrine, that where a state court’s “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.”
Not limiting its discussion to the holding on the Hawk exception, however, Wade also treated with the general Hawk rule of the necessity for review here before seeking the writ in the federal district court. The thought behind the language on that point evidently was that review here is not usually required as a condition to a hearing on the merits in the district court. Wade did recognize that failure to come here might be relevant in determining whether a district court should entertain an application. On p. 680 it is said:
“After state procedure has been exhausted, the concern is with the appropriate federal forum in which to pursue further the constitutional claim. The choice lies between applying directly to this Court for review of the constitutional issue by certiorari or instituting an original habeas corpus proceeding in a federal district court. Considerations of prompt and orderly procedure in the federal courts will often dictate that direct review be sought first in this Court. And where a prisoner has neglected to seek that review, such failure may be a relevant consideration for a district court in determining whether to entertain a subsequent habeas corpus petition.”
We do not stop to reexamine the meaning of Wade’s specific language. Whatever deviation Wade may imply from the established rule will be corrected by this decision.
Ex parte Hawk prescribes only what should “ordinarily” be the proper procedure; all the cited cases from Ex parte Royall to Hawk recognize that much cannot be foreseen, and that “special circumstances” justify departure from rules designed to regulate the usual case. The exceptions are few but they exist. Other situations may develop. Compare Moore v. Dempsey, 261 U. S. 86. Congress has now made statutory allowance for exceptions such as these, leaving federal courts free to grant habeas corpus when there exist “circumstances rendering such [state] process ineffective to protect the rights of the prisoner.” 28 U. S. C. § 2254.
In § 2254 of the 1948 recodification of the Judicial Code, Congress gave legislative recognition to the Hawk rule for the exhaustion of remedies in the state courts and this Court. This was done by embodying in the new statute the rulings drawn from the precedents. The rulings had been definitively restated in Hawk. That case had represented an effort by this Court to clear the way for prompt and orderly consideration of habeas corpus petitions from state prisoners. This Court had caused the Hawk opinion to be distributed to persons seeking federal habeas corpus relief from state restraint and the opinion had been generally cited and followed. There is no doubt that Congress thought that the desirable rule drawn from the existing precedents was stated by Hawk, for the statutory reviser’s notes inform us that
“This new section is declaratory of existing law as affirmed by the Supreme Court. (See Ex parte Hawk, 1944, 64 S. Ct. 448, 321 U. S. 114, 88 L. Ed. 572.)”
While this section does not refer expressly to the requirement for application to this Court for review, it must be read in the light of the statement quoted on p. 207, supra, from Hawk. So read, there was occasion neither for the draftsmen of § 2254 to make reference to review in this Court, nor for the committees of the House or Senate or members of Congress to comment upon it. It is immaterial whether as a matter of terminology it is said that review in this Court of a state judgment declining relief from state restraint is a part of the state judicial process which must be exhausted, or whether it is said to be a part of federal procedure. The issue cannot be settled by use of the proper words. Hawk treated review here as a state remedy. Wade thought it was not state procedure. But undoubtedly review here is a part of the process by which a person unconstitutionally restrained of his liberty may secure redress. Ex parte Hawk had made it clear that all appellate remedies available in the state court and in this Court must be considered as steps in the exhaustion of the state remedy in the sense that the term is used, perhaps inexactly, in the field of habeas corpus. Consideration of the legislative history of § 2254 reveals no suggestion that the draftsmen intended to alter the sense of the term as defined in Hawk or to differentiate between exhaustion of state remedies and review in this Court. All the evidence manifests a purpose to enact Hawk into statute. The reviser’s notes, explicitly stating this purpose, remained unchanged throughout the bill’s legislative progress. So did the statement of the exhaustion principle contained in the first paragraph of § 2254 down to the first “or.” None of the changes or additions made by the Senate to § 2254 affected the problem of review here. They were directed at other issues.
It seems sure that Congress drafted and enacted § 2254 expecting review here in conformity with the Hawk rule. Nothing indicates to us a desire on the part of Congress to modify the language. We think the rule of the Hawk case that ordinarily requires an effort to obtain review here has been accepted by Congress as a sound rule to guide consideration of habeas corpus in federal courts.
There is an insistence voiced by the dissent that we determine what effect the lower federal courts should accord a denial of certiorari by this Court when the state prisoner later applies for federal habeas corpus. The issue of the effect of such a denial apparently could arise only in a case where, after our refusal, the state prisoner presented his application to another federal court. It is not here in this case. We doubt the effectiveness of a voluntary statement on a point not in issue. Whether a refusal to grant certiorari imports an opinion on any issue or not, the reason persists for requiring an application here from the state refusal before application to another federal court.
There should be no controversy over whether the refusal of certiorari “would serve the purpose of an adjudication on the merits.” All the authorities agree that res judicata does not apply to applications for habeas corpus. The courts must be kept open to guard against injustice through judicial error. Even after this Court has declined to review a state judgment denying relief, other federal courts have power to act on a new application by the prisoner. On that application, the court may require a showing of the record and action on prior applications, and may decline to examine further into the merits because they have already been decided against the petitioner. Thus there is avoided abuse of the writ by repeated attempts to secure a. hearing on frivolous grounds, and repeated adjudications of the same issues by courts of coordinate powers.
In this way the record on certiorari in this Court is brought to the attention of the trial court. There have been statements made in former opinions of this Court as to the effect of denial of petitions for habeas corpus. Records presented to this Court on petitions in habeas corpus cases raise many different issues. There may be issues of state procedure, questions of fact regarding the alleged violations of constitutional rights, and issues of law respecting the scope of constitutional rights — problems made difficult by the frequent practice of state courts to dismiss the applications without opinion. If this Court has doubts concerning the basis of state court judgments, the matter may be handled as in Burke v. Georgia, 338 U. S. 941, with an express direction that the petitioner may proceed in the federal district court without prejudice from the denial of his petition for certiorari. If the District Court feels that error may have occurred, it has power to examine the application to see if circumstances exist to justify it in holding a hearing on the merits. Such freedom of action protects the Great Writ without trivializing it.
But it is argued that if the denial of certiorari mean nothing, the result of our decision is to force a “meaningless step.” We do not agree. Though our denial of certiorari carry no weight in a subsequent federal habeas corpus proceeding, we think a petition for certiorari should nevertheless be made before an application may be filed in another federal court by a state prisoner. The requirement derives from the basic fact that this republic is a federation, a union of states that has created the United States. We have detailed the evolution of and the reason for the conclusion that the responsibility to intervene in state criminal matters rests primarily upon this Court. It is this Court which ordinarily should reverse state court judgments concerning local criminal administration. The opportunity to meet that constitutional responsibility should be afforded. Even if the District Court may disregard our denial of certiorari, the fact that power to overturn state criminal administration must not be limited to this Court alone does not make it less desirable to give this Court an opportunity to perform its duty of passing upon charges of state violations of federal constitutional rights. This Court has evolved a procedure which assures an examination into the substance of a prisoner’s protest against unconstitutional detention without allowing destructive abuse of the precious guaranty of the Great Writ. Congress has specifically approved it. Though a refusal of certiorari have no effect upon a later application for federal habeas corpus, a petition for certiorari here ordinarily should be required.
The answer to petitioner’s argument that he should not be required to seek review here from a state’s refusal to grant collateral relief before applying to other federal courts involves a proper distribution of power between state and federal courts. The sole issue is whether comity calls for review here before a lower federal court may be asked to intervene in state matters. We answer in the affirmative. Such a rule accords with our form of government. Since the states have the major responsibility for the maintenance of law and order within their borders, the dignity and importance of their role as guardians of the administration of criminal justice merits review of their acts by this Court before a prisoner, as a matter of routine, may seek release from state process in the district courts of the United States. It is this Court’s conviction that orderly federal procedure under our dual system of government demands that the state’s highest courts should ordinarily be subject to reversal only by this Court and that a state’s system for the administration of justice should be condemned as constitutionally inadequate only by this Court. From this conviction springs the requirement of prior application to this Court to avoid unseemly interference by federal district courts with state criminal administration.
As the Hawk requirement, we think, has always been the rule, no change in procedure is necessary and the reiteration of the rule in this decision can, of course, result in no shifting of the burden of work among federal courts. No person restrained by state process could heretofore have been certain of a hearing on the merits of his application to a federal district court unless he had sought review in this Court of the state’s refusal to release him. Further, the rule contributes toward expeditious administration, since it raises the constitutional issue in a federal forum immediately, without the necessity of a second trial court proceeding and the compilation of a second record. And while the rule has the merit of reasonable certainty, it does not err on the side of unreasonable rigidity. Flexibility is left to take care of the extraordinary situations that demand prompt action. Solicitous as we are that no man be unconstitutionally restrained and that prompt, certain and simple methods for redress be available, those ends for which modern habeas corpus has been evolved can best be achieved by requiring in ordinary cases the exhaustion of state remedies and review here.
The present case involves a refusal, on the merits, of state collateral relief from a conviction allegedly obtained in violation of the Constitution. No review was sought in this Court of the state’s refusal. Instead, without alleging that review had been sought in this Court and without reliance upon any pleaded facts to excuse such failure, the petitioner filed his application for this habeas corpus in the District Court. Limiting its consideration of the application solely to the question as to whether this was an extraordinary instance that required disregard of accustomed procedure, the District Court found that this was not a case of peculiar urgency. We agree with the lower court’s conclusion that it should go no further into consideration of the application. A conviction after public trial in a state court by verdict or plea of guilty places the burden on the accused to allege and prove primary facts, not inferences, that show, notwithstanding the strong presumption of constitutional regularity in state judicial proceedings, that in his prosecution the state so departed from constitutional requirements as to justify a federal court’s intervention to protect the rights of the accused. The petitioner has the burden also of showing that other available remedies have been exhausted or that circumstances of peculiar urgency exist. Nothing has been pleaded or proved to show that here exceptional circumstances exist to require prompt federal intervention. Oklahoma denied habeas corpus after obviously careful consideration. If that denial violated federal constitutional rights, the remedy was here, not in the District Court, and the District Court properly refused to examine the merits.
Affirmed.
Me. Justice Douglas took no part in the consideration or decision of this case.
Ex parte Darr, 84 Okla. Cr. 352, 182 P. 2d 523.
77 F. Supp. 553, 556.
77 F. Supp. 553.
172 F. 2d 668 (C. A. 10th Cir.).
Davis v. Burke, 179 U. S. 399.
McNally v. Hill, 293 U. S. 131.
Hawk v. Olson, 326 U. S. 271, 274.
Holiday v. Johnson, 313 U. S. 342, 350; Price v. Johnston, 334 U. S. 266, 291-92; 28 U. S. C. § 2242, restating R. S. § 754.
See Hawk v. Olson, supra, pp. 274-75, notes 3, 4.
Comity through discretion in granting habeas corpus had an antecedent in an early statutory command restraining federal injunctive interference with state courts. 28 U. S. C. § 2283; 1 Stat. 334, §5; see Bowles v. Willingham, 321 U. S. 503. Cf. the three-judge district court provisions, 28 U. S. C. §§ 2281, 2284.
117 U. S. 241.
117 U. S. 241, 252; Cook v. Hart, 146 U. S. 183.
111 U. S. 176,
117 U. S. 516.
In re Duncan, 139 U. S. 449, 454.
In re Wood, 140 U. S. 278.
In re Jugiro, 140 U. S. 291; In re Frederick, 149 U. S. 70, 77-78; New York v. Eno, 155 U. S. 89, 98; Pepke v. Cronan, 155 U. S. 100; Whitten v. Tomlinson, 160 U. S. 231, 242; Tinsley v. Anderson, 171 U. S. 101, 104-105; Minnesota v. Brundage, 180 U. S. 499, 503; Reid v. Jones, 187 U. S. 153; Urquhart v. Brown, 205 U. S. 179, 181-82; United States ex rel. Kennedy v. Tyler, 269 U. S. 13, 17.
169 U. S. 284, 291.
175 U. S. 184, 187.
Ex parte Spencer, 228 U. S. 652, 660-61.
Bryant v. Zimmerman, 278 U. S. 63, 70.
294 U. S. 103.
The point has been confirmed many times. Ex parte Botwinski, 314 U. S. 586; Ex parte Davis, 317 U. S. 592; Ex parte Williams, 317 U. S. 604; Ex parte Abernathy, 320 U. S. 219; and see cases cited in note 25, infra.
321 U. S. 114, 116-17.
White v. Ragen, 324 U. S. 760, 767; House v. Mayo, 324 U. S. 42, 46, 48; Marino v. Ragen, 332 U. S. 561, 564; Wade v. Mayo, 334 U. S. 672, 679; Young v. Ragen, 337 U. S. 235, 238. And see note 32, infra.
324 U. S. 760, 764.
334 U. S. 672.
324 U. S. 760, 765. In the White case we concluded that the state ground was the refusal by the Supreme Court of Illinois to entertain applications with possible fact controversies. Pp. 766-67. We made it clear that while proper procedure does not require review in this Court of a judgment denying habeas corpus on an adequate state ground, other available state remedies must be exhausted before an application should be entertained in a district court. P. 767.
See White v. Ragen, 324 U. S. 760; Ex parte Royall, 117 U. S. 241, 251.
Young v. Ragen, 337 U. S. 235, 238. 28 U. S. C. § 2254 reads:
“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.”
Hearings before a Subcommittee of the Senate Judiciary Committee on H. R. 3214, April 22 to June 7, 1948, 80th Cong., 2d Sess., p. 28. See 28 U. S. C. Congressional Service, p. XXVIII; H. R. Rep. No. 308 on H. R. 3214,80th Cong., 1st Sess., p. 3.
See Lyon v. Harkness, 151 F. 2d 731, 733 (C. A. 1st Cir., N. H.); United States ex rel. Monsky v. Warden of Clinton State Prison, 163 F. 2d 978, 980 (C. A. 2d Cir., N. Y.); Stonebreaker v. Smyth, 163 F. 2d 498, 501, 502 (C. A. 4th Cir., Va.); Nusser v. Aderhold, 164 F. 2d 127 (C. A. 5th Cir., Ga.); Makowski v. Benson, 158 F. 2d 158 (C. A. 6th Cir., Mich.); United States ex rel. Ross v. Nierstheimer, 159 F. 2d 994 (C. A. 7th Cir., Ill.); Guy v. Utecht, 144 F. 2d 913, 915 (C. A. 8th Cir., Minn.); Gordon v. Scudder, 163 F. 2d 518 (C. A. 9th Cir., Cal.); Herzog v. Colpoys, 79 U. S. App. D. C. 81, 143 F. 2d 137, 138.
See S. Rep. No. 1559, 80th Cong., 2d Sess., p. 9 and H. R. Rep. No. 308, 80th Cong., 1st Sess., p. A180,
Subsequent statements by Judge John J. Parker, who served as Chairman of the Judicial Conference of Senior Circuit Judges, Committee on Habeas Corpus, are instructive.
“. . . The thing in mind in the drafting of this section was to provide that review of state court action be had so far as possible only by the Supreme Court of the United States, whose review of such action has historical basis, and that review not be had by the lower federal courts, whose exercise of such power is unseemly and likely to breed dangerous conflicts of jurisdiction. . . .
“One of the incidents of the state remedy is [the] right to apply to the Supreme Court for certiorari. If a petitioner has failed to make such application after the refusal of the state court to release him, he cannot be said to have exhausted the remedies available to him under state procedure, provided he has the right to apply again to the state courts for relief as a basis for application to the Supreme Court for certiorari. . . .
“The fact that certiorari from the Supreme Court to the state court may be called a federal remedy is not determinative of the question here involved. The crucial matter is that petitioner still has a right to attack in the courts of the state the validity of his conviction and, upon the record made in such attack, to petition the highest court of the land for a review. So long as such right remains, he does not have, and ought not have, the right to ask a review by one of the lower federal courts. . . .” Parker, Limiting the Abuse of Habeas Corpus, 8 F. R. D. 171,176-77.
Wade v. Mayo, supra, had no effect on the discussion of § 2254, since it came down two days prior to the enactment of the new code, too late for consideration.
See H. R. Rep. No. 308, 80th Cong., 1st Sess., p. A180, and final reviser’s note to § 2254.
See note 30, supra. Compare § 2254, H. R. 3214, Union Calendar #140, H. R. Rep. No. 308, 80th Cong., 1st Sess., with §2254, H. R. 3214 in Senate, S. Rep. No. 1559, 80th Cong., 2d Sess., p. 9.
The two exceptions at the last of the first paragraph provide for particular situations in the states. The definition of exhaustion in the last paragraph was made by the Senate at the instance of the Judicial Conference of Senior Circuit Judges. S. Rep. No. 1559, 80th Cong., 2d Sess., p. 9. Report of the Judicial Conference, September Session 1947, p. 17.
H. R. 3214 had permitted federal habeas corpus not only where state remedies had been exhausted but where “there is no adequate remedy available in” the state court. The Senate Report informs us that the purpose of the Senate amendment was “to substitute detailed and specific language for the phrase ‘no adequate remedy available.’ That phrase is not sufficiently specific and precise, and its meaning should, therefore, be spelled out in more detail in the section as is done by the amendment.” S. Rep. No. 1559, 80th Cong., 2d Sess., p. 10.
Compare Bowen, L. J., in Cooke v. New River Co., 38 Ch. D. 56, 70-71: “. . . like my Brothers who sit with me, I am extremely reluctant to decide anything except what is necessary for the special case, because I believe by long experience that judgments come with far more weight and gravity when they come upon points which the Judges are bound to decide, and I believe that obiter dicta, like the proverbial chickens of destiny, come home to roost sooner or later in a very uncomfortable way to the Judges who have uttered them, and are a great source of embarrassment in future cases.” Cohens v. Virginia, 6 Wheat. 264, 399-400; Wright v. United States, 302 U. S. 583, 593-594.
Salinger v. Loisel, 265 U. S. 224, 230.
Ex parte Royall, 117 U. S. 241.
Salinger v. Loisel, note 39, supra.
Ex parte Hawk, 321 U. S. 114, 117; House v. Mayo, 324 U. S. 42, 48; White v. Ragen, 324 U. S. 760, 764-65.
Dorsey v. Gill, 80 U. S. App. D. C. 9, 148 F. 2d 857.
See note 32, supra.
Wade v. Mayo, 334 U. S. 672, 681.
In re Cuddy, 131 U. S. 280; Johnson v. Zerhst, 304 U. S. 458, 468; Walker v. Johnston, 312 U. S. 275, 286; Hawk v. Olson, 326 U. S. 271, 279.
Ex parte Darr, 84 Okla. Cr. 352, 182 P. 2d 523.