On the question of the proper consideration to be accorded succes sive petitions, one treatise has said: Congress spoke to this problem in the 1948 Judicial Code. What was then 28 U.S.C.A. 2244, but has now been made 2244(a), and limited in its application to federal prisoners, provided that a court was not required to entertain an application if it appeared that the legality of the detention had been determined by a federal court on a prior application and "the petition presents no new ground not theretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry." The meaning of this statute came before the Supreme Court in 1963 in Sanders v. United States [373 U.S. 1 (1963)]. Although Sanders involved a motion by a federal prisoner under 28 U.S.C.A. 2255, rather than an application for habeas corpus by a state prisoner, the court could find no logical or practical basis for making a distinction between federal and state prisoners with regard to successive applications. Thus the rules announced in Sanders are fully applicable to habeas applications by state prisoners. Wright, Miller and Cooper, Federal Practice and Procedure, West, 1978 (at §4267). Of successive applications on grounds previously heard and determined, the Supreme Court in Sanders said: "Controlling weight may be given to denial of a prior application for federal habeas corpus...only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application; (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application." 373 U.S., at 15. Prior determination on the merits was interpreted by the court to mean that an evidentiary hearing was held (unless files and records conclusively resolved the issues). The Court then stated that if the earlier application was on a different ground than the later application or if the earlier application was not adjudicated on the merits, full consideration of the new application is required unless the government can establish that there has been an abuse of the remedy." (at 17-18). "Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal liti gation, or to entertain collateral proceedings whose only purpose is to vex, Section 2244(b), supra, as it reads today is the product of changes sponsored by the Judicial Conference in 1966. "The statute has been correctly understood as an enactment into law of the principles announced in Sanders. Although it does not speak in terms of the third Sanders element, the ends of justice, it says that if the other two Sanders elements, the same ground and a determination on the merits, are present, a new application 'need not be entertained.' Thus the statute does not interfere in any way with the power of the court to consider the second application when the ends of justice requires this." Wright, et al., supra, at §4267. The habeas corpus rules became effective February 1, 1977 ((Pub. L. 94-426, 90 Stat. 1334 (1976)). The Advisory Committee Note to Rule 9 states that "this rule is intended to minimize abuse of the writ of habeas corpus by limiting the right to assert stale claims and to file multiple petitions." Rule 9(b) states that a second application "may" be dismissed, but does not require dismissal if the ends of justice dictate a new determination. The Supreme Court has addressed at some length the effect of a plea of guilty on the later assertion of claimed violations of constitutional rights. See "the Brady Trilogy": Brady v. United States, 357 U.S. 742 (1970); McMann v. Richardson, 397 U.S. 759 (1970); and Parker v. North Carolina, 397 U.S. 790 (1970). The Court recently summarized that the "focus of Federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity... We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea respresents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann." Tollett v. Henderson, 411 U.S. 258, 266-267 (1973). In Tollett the Court considered the case of a petitioner who had plead guilty to murder in the first degree in Tennessee. Court said: "After a series of proceedings in the Tennessee trial and appellate courts, the Tennessee Court of Criminal Appeals ultimately concluded that respondent had waived his claim (that Negroes had been excluded from the grand jury) by failure to raise it before pleading to the indictment, and by pleading guilty." (at 259). The And in Lefkowitz v. Newsome, 420 U.S. 283 (1975) the Court added that if a State does not construe a guilty plea to constitute a "break in the chain ་ of events" with regard to certain types of constitutional claims, then such constitutional claims may be pursued in Federal habeas proceedings. However, "in most States a defendant must plead not guilty and go to trial to preserve the opportunity for state appellate review of his constitutional challenges to arrest, admissibility of various pieces of evidence, or the voluntariness of a confession. A defendant who chooses to plead guilty rather than go to trial in effect deliberately refuses to present his federal claims to the state court in the first instances. McMann v. Richardson, supra, at 768. Once the defendant chooses to by pass the orderly procedure for litigating his constitutional claims in order to take the benefits, if any, of a plea of guilty, the State acquires a legitimate expectation of finality in the conviction thereby obtained. Cf. Fay v. Noia, 372 U.S. 391, 438." (at 289). Tennessee law in this area was spelled out by the Tennessee Court of Criminal Appeals in its denial of post-conviction relief for Ray: "a plea of guilty, understandingly and voluntarily entered upon the advice of counsel, waives all non-jurisdictional defenses and alleged prior constitutitonal rights violations." Ray v. State, supra, at 480 S.W. 2d 920, citing State ex rel. Lawrence v. Henderson 433 S.W. 2d 96 (Tenn, Cr. App. 1968). While the claims available for argument on habeas may thus be reduced for one who has plead guilty, it should perhaps be noted that the Supreme Court has articulated the principle that "a prisoner in custody after pleading guilty, no less than one tried and convicted by a jury, is entitled to avail himself of the writ in challenging the constitutionality of his custody. Blackledge Allison, 431 U.S. 63 (1977). V. Federal Pardon or Parole Federal pardon and parole would not appear to be available remedies for state prisoners such as James Earl Ray. The parole statutes define "eligible prisoners" as Federal prisoners. 18 U.S.C. 4201. Ray, of course, remains a Tennessee prisoner, convicted of a Tennessee crime. The President's authority under Article II, Section 2, Clause 1 of the Constitution to "grant Reprieves and Pardons for Offences against the United States" applies only to persons coovicted under the laws of the United States. The pardoning power flows from the Constitution alone, not from any legislative enactments. Schick v. Reed, 419 U.S. 256 (1974). A Federal court has said: "Since the crime charged here was not an offense against the United States, the President has not the power of pardon..., and it lies only in the state." In re Bocchiaro, 49 F. Supp. 37, 38 (W.D.N.Y. 1943). Conclusion In summary, it would appear that in spite of Mr. Ray's prior unsuccessful efforts at gaining retrial through habeas proceedings, this remedy remains procedurally available to him in the future. The effect of his guilty plea in limiting the issues upon which he may base such relief, his pursuit of the remedy before, and the unlikelihood of new evidence becoming available which relates to those issues not foreclosed by his plea, make successful application for a writ of habeas corpus highly unlikely. While the application may be heard, summary consideration may be anticipated. A Circuit Court recently described its practice: "This Court has consistently interpreted the habeas corpus statutes as imposing no numerical limits on a state prisoner's |