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164 F.2d 127

Docket No. 12046.

Nusser v. Aderhold

Fifth Circuit Court of Appeals

Decided Nov. 7, 1947.

Fifth Circuit Court of Appeals · decided 1947-11-07

2 counsel of record

Key passage — most relied on by later courts

“. . . 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. . . .”

quoted by 1 later decision, including Darr v. Burford

Relies on Ex Parte Hawk No - on Rule to Show Cause and Return · Salinger v. Loisel · Perry v. McLendon

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1947-11-07

How this case has been cited

Cited by 6 later decisions (4 by the Supreme Court) — most recently March 1973

2 district ·

301947195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Norman C. Nusser, in pro. per.

¶2Eugene Cook, Atty. Gen., of Georgia, for appellee.

¶3Before SIBLEY, HOLMES, and LEE, Circuit Judges.

¶4PER CURIAM.

¶5The writ of habeas corpus was denied in the district court because the applicant, imprisoned under sentences imposed by a State Court, had not exhausted his remedies afforded by the State. Such exhaustion, including appeal to the State Supreme Court and review by the Supreme Court of the United States, is generally necessary. Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572, and cases cited. On this point the application states in general terms that applicant has had an unsuccessful hearing on habeas corpus before a State judge, presented to him a bill of exceptions which he refused to sign, and that a mandamus against him was refused by the State Supreme Court. The ground of these refusals is not stated, but the only good grounds we think of would be that the bill of exceptions was not true or not presented in due time. Either would be the fault of applicant. But the abortion of his appeal does not necessarily prevent his applying again in the State courts for a writ, for a judgment refusing a discharge in a criminal case is not generally a bar to another writ though based on the same grounds. Salinger v. Loisel, 265 U.S. 224, 230, 44 S.Ct. 519, 68 L.Ed. 989 ; 25 Am.Jur., Habeas Corpus, § 156. We do not find that a different rule has been clearly established in the Georgia courts, where an imprisonment on á criminal sentence is attacked, and the question raised was not adjudicated in the trial, nor settled on a previous habeas corpus by an "appellate court. The matter is extensively discussed in Andrews v. Aderhold, Warden, 201 Ga. 132, 39 S.E.2d 61, and res judicata upheld where the question had been raised and decided on motion for new trial and judgment affirmed by the Georgia Supreme Court, and also in - a previous habeas corpus in the federal courts *128affirmed by the Circuit Court of Appeals. The court cites the federal authorities, and Perry v. McLendon, 62 Ga. 598, a habeas corpus for imprisonment on civil process in which res judicata is generally applied; and Day v. Smith, 172 Ga. 467, 157 S.E. 639, where the prior judgment was one of discharge; which also is generally held conclusive. Williams v. Lawrence, 193 Ga. 381, 18 S.E.2d 463, is also a case in which the question was adjudicated on motion for new trial. The .present case seems distinguishable from all these, and we cannot tell what the Georgia courts will do about it on a renewed application for the writ. The State remedies have not yet been exhausted, so far as appears.

¶6Judgment affirmed.

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