Thomas J. Mooney asks leave to file petition for an original writ of habeas corpus. He states that he is unlawfully restrained of his liberty by the State of California under a commitment pursuant to a conviction, in February, 1917, of murder in the first degree and sentence of death subsequently commuted to life imprisonment. He submits the record of proceedings set forth in his petition for a writ of habeas corpus presented to the District
Petitioner charges that the State holds him in confinement without due process of law in violation of the Fourteenth Amendment of the Constitution of the United States. The grounds of his charge are, in substance, that the sole basis of his conviction was perjured testimony, which was knowingly used by the prosecuting authorities in order to obtain that conviction, and also that these authorities deliberately suppressed evidence which would have impeached and refuted the testimony thus given against him. He alleges that he could not by reasonable diligence have discovered prior to the denial of his motion for a new trial, and his appeal to the Supreme Court of the State, the evidence which was subsequently developed and which proved the testimony against him to have been perjured. Petitioner urges that the "knowing use" by the State of perjured testimony to obtain the conviction and the deliberate suppression of evidence to impeach that testimony constituted a denial of due process of law. Petitioner further contends that the State deprives him of his liberty without due process of law by its failure, in the circumstances set forth, to provide any corrective judicial process by which a conviction so obtained may be set aside.
In support of his serious charges, petitioner submits a chronological history of the trials, appeals and other judicial proceedings connected with his conviction, and of his applications for executive clemency. He sets forth the evidence which, as he contends, proves the perjury
In response to our rule to show cause why leave to file the petition should not be granted, the respondent has made return by the Attorney General of the State. With this return, he submits an appendix of exhibits setting forth the consent filed by the Attorney General with the Supreme Court of the State on July 30, 1917, that the judgment of conviction be reversed and the cause remanded for a new trial, the subsequent opinions of that Court upon the cases presented to it, the statements of Governors of the State on applications for executive clemency made on behalf of this petitioner and of one Billings (who had been jointly indicted with petitioner and was separately tried and convicted), and the reports of Justices of the Supreme Court of the State, and communications addressed by them, to the Governors of the State in connection with such applications.
The return does not put in issue any of the facts alleged in the petition. The return is in the nature of a demurrer. It submits that the petitioner "has failed to raise a Federal question and that, consequently, leave to file the petition should be denied." Reviewing decisions relating to due process, the Attorney General insists that the petitioner's argument is vitiated by the fallacy "that the acts or omissions of a prosecuting attorney can ever,
Without attempting at this time to deal with the question at length, we deem it sufficient for the present purpose to say that we are unable to approve this narrow view of the requirement of due process. That requirement, in safeguarding the liberty of the citizen against deprivation through the action of the State, embodies the fundamental conceptions of justice which lie at the base of our civil and political institutions. Hebert v. Louisiana, 272 U.S. 312, 316, 317. It is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a State to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation. And the action of prosecuting officers on behalf of the State, like that of administrative
Reasoning from the premise that the petitioner has failed to show a denial of due process in the circumstances set forth in his petition, the Attorney General urges that the State was not required to afford any corrective judicial process to remedy the alleged wrong. The argument falls with the premise. Frank v. Mangum, 237 U.S. 309, 335; Moore v. Dempsey, 261 U.S. 86, 90, 91.
We are not satisfied, however, that the State of California has failed to provide such corrective judicial process. The prerogative writ of habeas corpus is available in that State. Constitution of California, Art. I, § 5; Art. VI, § 4. No decision of the Supreme Court of California has been brought to our attention holding that the state court is without power to issue this historic remedial process when it appears that one is deprived of his liberty without due process of law in violation of the Constitution of the United States. Upon the state courts, equally with the courts of the Union, rests the obligation to guard and enforce every right secured by that Constitution. Robb v. Connolly, 111 U.S. 624, 637. In view of the dominant requirement of the Fourteenth Amendment, we are not at liberty to assume that the State has denied to its court jurisdiction to redress the prohibited wrong upon a proper showing and in an appropriate proceeding for that purpose.
The decisions of the Supreme Court of California in relation to petitioner's conviction have dealt with the questions
We do not find that petitioner has applied to the state court for a writ of habeas corpus upon the grounds stated in his petition here. That corrective judicial process has not been invoked and it is not shown to be unavailable. Despite the many proceedings taken on behalf of the petitioner, an application for the prerogative writ now asserted to be peculiarly suited to the circumstances disclosed by his petition has not been made to the state court. Orderly procedure, governed by principles we have repeatedly announced, 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. Davis v. Burke, 179 U.S. 399, 402; Urquhart v. Brown, 205 U.S. 179, 181, 182; U.S. ex rel. Kennedy v. Tyler, 269 U.S. 13, 17. See, also, Bryant v. Zimmerman, 278 U.S. 63, 70.
Accordingly, leave to file the petition is denied, but without prejudice.