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In the light of this trend, it may not be necessary for Congress to amend the statute.70


In a Federal habeas corpus proceeding involving a State prisoner, the question at issue is the legality of an individual's continued incarceration by the State. A petition for habeas corpus must allege that an individual's arrest or conviction by the State is “in violation of the Constitution or laws or treaties of the United States.” 11 The State is compelled to justify its detention of the petitioner; if it cannot, the petitioner is released. In cases involving arrest and detention of civil rights workers, the filing of a habeas corpus petition permits a Federal court to examine the case to determine whether or not the petitioner's incarceration violates his constitutionally protected rights.

If the Federal court finds that these rights are violated,” the petition will be granted, the jurisdiction of the Federal court over the prisoner will supersede that of the State courts, the prisoner will be released, and the proceedings against him in the State court will be terminated."3

The usefulness of habeas corpus in civil rights cases, however, has been severely limited by the judicially developed requirement that remedies in State court be exhausted before a Federal court will intervene.74 The rationale behind this doctrine is that


* Following the Rachel decision, removal under subsection (1) was granted in a number of cases sub. nom., Robinson v. Florida, 345 F. 2d 133 (5th Cir. 1965).

28 U.S.C. § 2241(c)(3) (1964). " If the allegations made by the petitioner leave the court in doubt as to whether or not the petitioner is entitled to habeas corpus, the court will order petitioner's custodian to “show cause" why the writ should not be issued. A return or answer must be filed by the custodian within three days. The petitioner may then reply. A hearing will be held within five days to determine the justification for detention of the prisoner. On the basis of this hearing the court will either grant or deny the petition. 28 U.S.C. § 2241-54 (1964).

28 U.S.C. § 2283 (1964) does not apply to stays granted pursuant to a habeas corpus petition. See note 26, supra.

This doctrine originated in the case of Ex parte Royall, 117 U.S. 241 (1886). The requirement did not exist when Federal habeas corpus was first extended to State court prisoners in 1867. See Judiciary Act of Feb. 5, 1861, ch. 28, $ 81, 14 Stat. 385-86.


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“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.. This exhaustion requirement is now codified in 28 U.S.C. Section 2254, which bars a petitioner from the Federal courts so long as "he has the right under the law of the State to raise, by any available procedure, the question presented.”

This language has been interpreted by the Supreme Court to mean that a habeas corpus petitioner who wishes to attack his incarceration on Federal grounds need present his Federal questions to the highest State court only once. If the State judiciary decides the merits of his claim, petitioner may go into Federal court even though under other State procedures he could “raise ... the question presented.” But, if the State's highest court decides the case on procedural grounds and does not reach the merits, State collateral remedies, i.e., procedures prescribed by State law for testing the legality of imprisonment, would have to be pursued before Federal habeas corpus would be available."

The statute appears to demand the exhaustion of State remedies no matter what the nature or source of the Federal right which the petitioner is seeking to vindicate. In the case of Brown v. Rayfield, 18 for example, the defendants, who were protesting racial discrimination, were summarily convicted under a Jackson, Mississippi, parading-without-a-license ordinance. Prior to filing an appeal for a new trial, they sought Federal habeas corpus alleging that the conduct for which they were being prosecuted was pro tected by the ist and 14th amendments to the Constitution and that the prosecutions were intended to further the State policy



Darr v. Buford, 339 U.S. 200, 204 (1950). The exhaustion requirement permits “full play [to] be allowed to the States in the administration of their criminal justice without prejudice to federal rights enwoven in the state proceedings.” Fay v. Noia, 372 U.S. 391, 419 (1963).

Brown v. Allen, 344 U.S. 443 (1953). ? Ibid. The requirement of exhaustion has been further limited to apply only to the failure to exhaust those State remedies still open to the petitioner at the time he files his petition in the Federal court. Fay v. Noia, supra note 75.

320 F.2d 96 (5th Cir. 1963), cert. denied, 375 U.S. 902 (1963).




of racial discrimination. The Court of Appeals for the Fifth Circuit sustained the refusal of a Mississippi Federal district court to entertain the petition on the grounds that the petitioner had failed to exhaust State remedies. The court also found that even extended court delays and inability to obtain a speedy trial because of the congestion of civil rights prosecutions in the Mississippi courts would not excuse "exhaustion” where a habeas petitioner is able to make bond and, thus, obtain his release.S

Most civil rights prosecutions, however, are for offenses in which the sentence involved is usually a few weeks or months. If a petitioner is unable to obtain bail and, thus, must remain incarcerated while exhausting State remedies, he may serve his entire sentence before Federal relief can be obtained.

The recent case of In re Shuttlesworth $1 indicates that in such a situation relief may be available. In 1958 Reverend Shuttlesworth was arrested and convicted of disorderly conduct when he led an attempt to desegregate the bus system in Birmingham, Alabama. He was sentenced to 82 days in jail at hard labor. His conviction was affirmed by the Alabama Court of Appeals without a decision on the merits, and both the Alabama Supreme Court and the United States Supreme Court refused to review this decision. Shuttlesworth then sought habeas corpus in a Federal district court. His petition was denied, and he sought permission to appeal this denial in both Federal district and circuit courts. Fear



See also Application of Wyckof, 196 F. Supp. 515 (S.D. Miss., 1961). In this case a Supreme Court Justice refused to entertain an original petition for habeas corpus, also on the grounds that petitioner had failed to exhaust State remedies. See 6 Race Rel. L. Rep. 794 (Black, Circuit Justice, 1961).

By the time the habeas corpus proceeding in the Brown case reached the Fifth Circuit, the petitioners had made bond in the State court. In view of this, the Court of Appeals found no sufficient reason to excuse petitioners from the requirement of exhaustion,


'The history of this litigation leading up to the granting of the habeas corpus petition can be traced through the following cases: White v. City of Birmingham, 41 Ala. App. 81, 130 So. 2d 231 (1960), cert. denied, 272 Ala. 301, 130 So. 2d 234 (1961), cert. denied sub nom., Shuttlesworth v. City of Birmingham, 368 U.S. 959 (1962); Shuttlesworth v. Moore, 7 Race Rel. L. Rep. 114 (N.D. Ala. 1962), rev'd. 369: U.S. 35 (1962) (per curiam), on remand petitioner released on bail, 7 Race Rel. L. Rep. 121 (N.D. Ala. 1962), on merits writ granted, 9 Race Rel. L. Rep. 107 (N.D. Ala. 1963).

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ing that before a court decision was rendered he would serve his entire 82-day sentence and, thus, moot his case, he sought an original habeas corpus petition in the United States Supreme Court.82 While his petition was pending in the Supreme Court, the Federal Court of Appeals refused to consider his appeal on the ground that, although he had failed to obtain a State determination of his contentions by direct review, he might be able to obtain a decision on the merits of his case by means of various other State remedies which should be pursued before Federal habeas corpus would be granted.

In February 1962 the Supreme Court reviewed the case and remanded it to the Federal district court with directions to hold the matter while Shuttlesworth pursued Statė collateral remedies. The Court held, however, that:

In the event of failure to secure [State] relief, or to
secure admission to bail pending such relief within five
(5) days from the date of application for bail, petitioner
may proceed on this application [for a writ of habeas
corpus] in the United States District Court which may
then consider all State remedies exhausted and proceed

to hear and determine the cause. Shuttlesworth went back to the State courts but was again denied relief. The Federal district court then ordered Shuttlesworth discharged from custody on habeas corpus without even holding an evidentiary hearing, finding that the State trial court record clearly indicated that the conviction was unconstitutional.**

By the time Shuttlesworth was released by the district court, he had served 34 days of an 82-day sentence and spent more than five years in and out of various State and Federal courts. There have been indications that the Federal courts may

follow the decision in Shuttlesworth in civil rights cases in which bail is denied by the State courts and, if so, habeas corpus may yet




See 28 U.S.C. § 2241 (a) (1964). 369 U.S. at 35. 84 Shuttlesworth v. Moore, 9 Race Rel. L. Rep. 107 (N.D. Ala. 1963).

come a viable remedy. ** In a case in which a habeas petitioner is able to gain his release by posting bond, however, the doctrine of the Brown and Wyckoff cases indicates that “exhaustion” of State remedies will be required.96


This chapter has considered various remedies that are available from Federal courts to restrain quickly denials of or interferences with constitutional rights. One such remedy is the injunction-a Federal court order issued in a civil proceeding which can restrain or compel action by private individuals or public officials. Federal courts have issued injunctions to halt interferences with civil rights activities, such as lawful demonstrations, and to compel officials to protect persons exercising constitutional rights. In addition, injunctions have been granted to prohibit arrests under unconstitutional statutes.

The civil jurisdiction of Federal courts also can be invoked to remove cases from State court to Federal court. Under this procedure, it is possible for a person who is being prosecuted illegally in State court to deprive the State court of its jurisdiction and to bring his case before a Federal court. If the Federal court agrees

See Dresner v. City of Tallahassee, 375 U.S. 136 (1963), a case growing out of the prosecution of Freedom Riders (questions of law certified to Florida Supreme Court), cert. dismissed 378 U.S. 539 (1964). When the district court denied habeas corpus petitions on grounds of failure to exhaust State remedies, the Court of Appeals for the Fifth Circuit modified the judgment to allow hearing on the claims raised by this petition unless the State court discharged petitioners or released them on nominal bail within three days. Dresner v. Stoutanire, No. 21,802, 5th Cir., Aug. 5, 1964. The Municipal Court sua sponte reconsidered the sentences imposed and reduced them to the time already served and discharged the prisoners. Habeas corpus proceedings were thus mooted. Cf. also Johnson v. Davis, 9 Race Rel. L. Rep. 814 (M.D. Fla. 1963).

See e.g., Hillegas v. Sams, 349 F.2d 859 (5th Cir. 1965). The Federal district court denied the habeas corpus petition of a COFO worker arrested for vagrancy on the grounds of failure to exhaust available State remedies. The Court of Appeals for the Fifth Circuit affirmed this denial, holding that: “No effort was made to obtain relief in the courts of Mississippi. Nothing is here shown to call for the application of a different rule than was announced and applied in Brown v. Rayfield . . . and In re Wyckoff.


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