Fields v. Stewart , 71 F. Supp. 319 ( 1947 )

REEVES, District Judge.

The only question for decision is whether this court should entertain jurisdiction where the petitioner had secured an adverse opinion from the Supreme Court of Missouri and had not sought review in the Supreme Court of the United States by certiorari.

The petition for the writ contains a recital that “your petitioner * * * has wholly exhausted his rights for redress of grievances in the Circuit Court of Cole County, Missouri, and in the Supreme Court of Missouri, and that his application for writ of habeas corpus was denied by said Supreme Court of Missouri on February 11, 1946, Case Number 39839, for the reason that ‘fails to state a cause of action for discharge, it appearing that the petitioner declined to have counsel appointed and waived his right thereto.’ ”

There is the further averment that “the time period for certiorari to the Supreme Court of the United States for review of said decision of the Missouri Supreme Court has expired.”

Under the authorities this court could not properly exercise jurisdiction for the reason that it was the duty of the petitioner, if he feels himself aggrieved by the decision of the Missouri Supreme Court, to seek a review in the Supreme Court of the United States. See Dawsett v. Benton, 6 Cir., 156 F.2d 669, where the court considered an identical question and cited a large number 'of authorities in support of the proposition above stated. Moreover, even if additional facts were alleged in this complaint, it was either the duty of the petitioner to have renewed them in the state court or to have presented them at the time he asked for a discharge by habeas corpus in the state court. The records, of course, show that the petitioner is confined in the Missouri state penitentiary under a conviction in a state court.

The complaint fails to state facts which would warrant this court in exercising jurisdiction and, accordingly, it should be dismissed and it will be so ordered.