Petitioner is confined in the Florida state prison under sentence for burglary. He filed a petition for habeas corpus in the United States District Court for Southern Florida, which denied the petition without calling for a return and without a hearing. The district judge also denied a certificate of probable cause for an appeal to the circuit court of appeals under 28 U.S.C. § 466. Section 466 requires such a certificate for an appeal from a judgment denying a petition for habeas corpus when the petition complains of "detention . . . by virtue of process issued out of a State court." Since the statute authorizes either the district court or "a judge of the circuit court of appeals" to issue the certificate, the district judge, in his order, stated that petitioner might apply to a judge of the court of appeals for the certificate and for the allowance of his appeal.
Petitioner thereupon filed with the circuit court of appeals a timely application for an appeal in forma pauperis, addressed to the "Chief Justice" of that court. The application
The case comes here on a motion for leave to file a petition for certiorari and a motion for leave to file a petition for habeas corpus. The questions for decision are: (1) whether this Court has the power to issue a writ of certiorari; (2) if it has, whether it may review the merits of the decision of the district court; and (3) whether the district court erred in denying the petition for habeas corpus on the grounds it assigned for its decision.
This Court cannot issue a writ of certiorari in the present case under § 240 (a) of the Judicial Code, 28 U.S.C. § 347 (a). Ferguson v. District of Columbia, 270 U.S. 633. Our authority under that section extends only to cases "in a circuit court of appeals, or in the United States Court of Appeals for the District of Columbia." Here the case was never "in" the court of appeals, for want of a certificate of probable cause.
But § 262 of the Judicial Code, 28 U.S.C. § 377, authorizes this Court "to issue all writs not specifically provided for by statute, which may be necessary for the exercise of [its jurisdiction], and agreeable to the usages and principles of law." By virtue of that section we may grant a writ of certiorari to review the action of the court of appeals in declining to allow an appeal to it. In re 620 Church St. Corp., 299 U.S. 24, 26, and cases cited; Holiday v. Johnston, 313 U.S. 342, 348, n. 2; Wells v. United States, 318 U.S. 257; Steffler v. United States, 319 U.S. 38. And not only does our review extend to a determination of whether the circuit court of appeals abused its discretion in refusing to allow the appeal, but if so, it extends
Petitioner alleges in his petition for habeas corpus and in supplemental papers filed in the district court, that having completed the service of two earlier sentences, he is now confined in the Florida penitentiary solely by virtue of a twenty-year sentence for burglary. The sentence was originally imposed in 1925 upon his plea of guilty to an information charging the offense. He alleges that he was represented by his own attorney at the trial of the two prior offenses; that his attorney then went to his office in another city, and was to return on September 30 or October 1, 1925; that petitioner was brought before the court to be sentenced for those offenses on September 11, 1925, when his attorney was absent; that without previous warning an information was handed up making the present charge of burglary. Petitioner alleges further that he asked for time to communicate and consult with his attorney, but that this request was denied; that he was forced to plead guilty within a few minutes after receiving a copy of the information; that at that time he was in his twenties, uneducated, and a stranger in the town. The petition also alleged that petitioner had "exhausted all legal remedies . . . to obtain his freedom" in the state courts. In supplemental papers filed with the district court, he made particular reference to the several proceedings in which he had sought unsuccessfully to raise his constitutional question in the state courts.
Since the petition for habeas corpus was denied without requiring the respondent to answer and without a hearing, we must assume that the petitioner's allegations are true. Williams v. Kaiser, 323 U.S. 471, 473-474. From them it appears that the trial court, without warning, and over
In denying the petition, the district court did not consider whether this deprivation of constitutional right is remediable in a federal habeas corpus proceeding. Cf. Ex parte Hawk, supra. In Waley v. Johnston, 316 U.S. 101, 104-105, and cases cited, we pointed out that the writ is an appropriate remedy in the federal courts in "those exceptional cases where the conviction has been in disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights," at least where "the facts relied on are dehors the record and their effect on the judgment was not open to consideration and review on appeal." Nor did the district court reach the question whether petitioner had exhausted his state remedies, which is prerequisite to relief by habeas corpus in the federal court. Ex parte Hawk, supra, 117. We find it unnecessary to pass on either question in the first instance, or to consider whether the district court should have called for an answer and set the case for a hearing. We express no opinion upon these
The district court was of the opinion that "petitioner has had a full, complete, and competent consideration and decision in the Supreme Court of Florida of all the various matters here sought again to be presented." The district court had reference to the decisions of the Florida Supreme Court referred to by petitioner in his papers filed with the district court. They were: House v. State, 127 Fla. 145, 172 So. 734, a writ of error from petitioner's conviction;
The district court also referred to a denial by this Court of a petition for certiorari, filed here after the denial by the Florida Supreme Court of one of the applications for habeas corpus. See House v. Mayo, 322 U.S. 710. The
The decision of the district court is thus not supported by the grounds assigned for it, and should have been reversed by the court of appeals. And the judges of that court erred in not considering whether the case was an appropriate one for a certificate of probable cause, as they were authorized to do by 28 U.S.C. § 466. We think that they also erred in not issuing the certificate.
The motions for leave to proceed in forma pauperis and for leave to file the petition for certiorari are granted. The petition for certiorari is granted, the order of the court of appeals and judgment of the district court are reversed and the cause is remanded to the district court for further proceedings in conformity to this opinion.
MR. JUSTICE ROBERTS is of opinion that the writ of certiorari should be denied.