Legal Research on Section 2254 (Habeas Corpus)

    28 USCS g 2253, n 43 PeRtrcuLAR PRocEEDINGs

peared to.have been fully considered and prop- Iv. DISposITIoN oF ACTION
erly handled by state courts. Carter v pepper-
sack (1957, CAi Md) z4z Fzd 75o. '16' Remsnd

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Certificate of probable cause need not be
sought or obtained within pei-iod of 30 days
from denial of habeas corpus petition; 2g USCS
$ 2253 fixes no prescribed time within which
certificate of probable cause must be sought or
obtained, nor does it require issuance of certifi-
cate of probable cause as condition precedent to
6ling notice of appeal. Fitzsimmons v yeager
(1968, CA3 NJ) 391 F2d 849, cert den 393 US
868, 2l L En 2d l3i,89 S Cr 154.

Appeal from dismissal of petition for habeas
corpus relief challenging validity of conviction
for attempted murder would be dismissed wherc
petitioner had neither requested nor obtained
certificate of probable cause. [.ec v Washington
Parish (1973, CA5 La) 476F2d ZBS.

4{. 
-Upon eppointment of counset

Henceforth, in accordance with discretion
vested in court, attorneys would not normally bc
appointed or hearing held in habeas corpus cases
involving state prisoners until certificate of prob-
able cause has been granted; when petition of
inmate of state institution has been denied by
district court and certificate of probable cause
has also been denied, and inmate seeks review in
this court, it will be treated as condition prece-
dent to appellate hearing for judge or panel of
judges of court to issue such certificate. Burgess
v Warden, Maryland House of Correction (196O,
CA4 Md) 284 Fzd 486, cert den J65 US 837, 5
L Ed 2d 746, 8t S Ct 753.

45. Order signed by United States Magistrste
"Order" granting certificate of probable cause

signed by United States magistrate is clearly
ultra vires and void. Dye v Cowan (lgi}, CA6
Ky) 472 F2d 1206.

g 2254. State custody; remedies in

440

Where in habeas corpus proceeding it was not
establishcd whether or not inducte€ who had
claimed classification as conscientious objector
objected to participation in any war under any
circumstances becausc of compelling voicc of his
conscience, Court of Appeals in reviewing order
of district court dismissing petition and writ
would not order inductee discharged but would
remand him to districi court for ascertainmcnt
as to whether or not director of selective scrvicc
had adopted the finding of hearing officcr ro
effect that inductee did not have conscientious
objections to war under any circumstanccs.
United Stares ex rcl. Recl v Badt (1944, CA2
NY) l4l F2d 845.

Absent a ruling by district judgc on applica-
tion for certificatc of probablc causc, casc rc-
manded to sccurc same in intcrcst of pctitioncr's
right to a first lcvel decision. Stewart v Beto
(1971, CAs Tex) 454 F2d 268, cert dcn 406 US
925, 32 L Ed 2d 126,92 S Ct 1796.

Where petitioners pro se habeas corpus po,
tition, though rather incoherent, indicated hc
might be entitled to relief, justice requires causc
be remanded to District Court with instructions
to pcrmit petitioner leave to amend petition witb
aid of appointed counsel. Frycr v MacDougall
(1972, CAs Ga) 462 F2d 1093.

47. Withdreral of appeat

Mental patient who was conditionally releascd
from custody may withdraw his appeal from
denial of writ of habcas corpus, although court
will not stay proceedings and retain jurisdiction
notwithstanding contention that hospital retaincd
power to return petitioner to maximum security
without even minimal due process hearing. Jach-
son v Robinson (1973) 155 App DC 94,476 F2d
539.

Federal courts

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(a) The llpreme .court, a Justice thereof, a circuit judge, or a district
court shall entertain an application for a writ of habeas corpus in behalf of
a person in custody pursuant to the judgment of a State cqu4 only on thegroundthatheisincustodyinviolationffi<ir-lawsor
treaties of the United States.

(b) Al application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court shall not ba granted
unless it appears that the applicant has exhausted the remedies available in
the courts of the State, or that there is efther an ab-ilenceTf?iailable State
corrective process or thetexistence of circumstances rendering such process
ineffective to protect the rights of thc prisoner.

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Haneas Conpus 28 USCS $ 22s4

(c) An applicant shall not be decmed to have exhausted the remedies

available in tt e courts of the State, within the meaning of this section, if he

has the right under the law of the State to raise, by any available

procedure, the question presented.

(d) In any proceeding instituted in a Federal court by an application for a
wiit of traUias 

"orprJby 
a person in custody pursuant to th-e judgment of a

State court, a determination after a hearing on the merits of a factual issue,

made by a State court of competent jurisdiction in a proceeding to which

the appiicant for the writ and ihe State or an officer or agent thereof were

parties, evidenced by a written finding, written opinion, or other reliable

and aiequate writte; indicia, shall be preslmed to b the

applicant shall establish or it shall otherwise appear, or the respondent

shall admit-
(l) that the merits of the factual dispute were not resolved in the State

court hearing;
(2) that the factfinding procedure employed by the State court was not

adequate to afford a full and fair hearing;
(3) ihat the material facts were not a.dequately developed at the State

court hearing;
(4) that the State court lacked jurisdiction of the subject matter or over

ih. p".ton of the applicant in the State court proceeding;

(S) ihat the applica.rt *ur an indigent and the State court, in deprivation

of ni. constituiional right, failed io appoint counsel to represent him in
the State court proceeding;
(6) that the appiicant did not receive a full, fair, and adequate hearing in

the State court proceeding; or
(7) that the applicant was otherwise denied due process of law in
State court proceeding;
(8) or unleis that part of the record of the State court proceeding in

*trl"t the determination of such factual issue was made, pertinent to a
determination of the sufficiency of the evidence to support such factual

Jetermination, is produced as provided for hereinafter, and the Federal

court on a consideration of such part of the record as a whole concludes

that such factual determination iJ not fairly supported by the record:

And in an evidentiary hearing in the proceeding in the Federal court, when

au" p.oof of such factual determination has been made, unless the

existence of one or more of the circumstances respectively set forth in
p"rrgi"pt. numbered (l) to (7), inclusive, is shown by the applicant'

btheiwiie appears, or ii admitted by the respondent, or unless the court

concludes puisuant to the provisioni of paragraph numbered (8) that the

record in the State court pr^oceeding, considered as a whole, does not fairly

,uppo.t such factual determination, the burden shall rest upon .the. app.li-

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to establish by convincing evidence that the factual determination by

the State court was erroneous'
441

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28 USCS 5 2254 PeRrrculen PnocpEDINGs

(e) If the applicant challenges the sufficiency of the evidence adduced in
such State court proceeding to support the State court's determination of a
factual issue made therein, the applicant, if able, shall produce that part of
the record pertinent to a determination of the sufficiency of the evidence to
support such determination. If the applicant, because of indigency or other
reason is unable to produce such part of the record, then the State shall
produce such part of the record and the Federal court shall direct the State
to do so by order directed to an appropriate State official. If the State

cannot provide such pertinent part of the record, then the court shall
determine under the existing facts and circumstances what weight shall be
given to the State court's factual determination.

(11 A copy of the official records of the State court, duly certified by the
clerk of such court to be a true and correct copy of a finding, judicial
opinion, or other reliable written indicia showing such a factual determina-
tion by the State court shall be admissible in the Federal court proceeding.

(June 25, 1948, c.646, $1,62 Stat.967; Nov.2,1966, P. L.89'711, $2,
80 Stat. I105.)

HISTORY; ANCILLARY LAWS AND DIRECTIVES

Prior law and revision:
This section is declaratory of existing law as affirmed by the Supreme

Court. (See Ex parte Hawk (1944) 321 US ll4, 88 LE;d 572,64 S Ct
448.) This section was enacted as amended by the Senate with the
following explanation:
"This amendment is proposed by the Judicial Conference of Senior
Circuit Judges.
..It has three purposes. The first is to eliminate from the prohibition of
the section applications in behalf of prisoners in custody under author-
ity of a State officer but whose custody has not been directed by the
judgment of a State court. If the section were applied to applications by
perions detained solely under authority of a State officer it would
unduly hamper Federal courts in the protection of Federal officers
prosecuted for acts committed in the course of official duty.
"The second purpose is to eliminate, as a ground of Federal jurisdiction
to review by habeas corpus judgments of State courts, the proposition
that the State court has denied a prisoner a 'fair adjudication of the
legality of his detention under the Constitution and laws of the United
States.' The Judicial Conference believes that this would be an undesir-
able ground for Federal jurisdiction in addition to exhaustion of State

.e-.die. or lack of adequate remedy in the State courts because it
would permit proceedings in the Federal court on this ground before
the petitioner had exhausted his State remedies. This ground would, of
courie, always be open to a petitioner to assert in the Federal court
after he had exhausted his State remedies or if he had no adquate State

remedy.
.,The third purpose is to substitute detailed and specific language for
the phrase ;no -adequate 

remedy available.' That phrase is not suffi-

442

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