Wade v. Mayo/Dissent Reed
Mr. Justice REED, dissenting.
Donald Wade was brought to trial March 14, 1945, in the Criminal Court of Record of Palm Beach County, Florida. On the same day, after proceedings before the presiding judge in which Wade represented himself, he was convicted of the crime of breaking and entering, and sentenced to five years' imprisonment. Wade did not appeal his conviction, but on March 16, 1945, having obtained the aid of counsel, he brought a petition for a writ of habeas corpus in the Circuit Court of Palm Beach County; on March 22, 1945, that court quashed the writ; an appeal from the order quashing the writ was taken to the Supreme Court of Florida and on May 14, 1945, that court dismissed the appeal without stating whether it disposed of the case on the merits or upon a procedural ground.  However, in a later case, Johnson v. Mayo, 158 Fla. 264, 28 So.2d 585, the Florida Supreme Court indicated that its ruling in the Wade case had been upon the merits. For the purposes of this opinion, I assume that this decision was upon the merits. Wade failed to bring a writ of certiorari to this Court to review the action of the state Supreme Court. On May 8, 1946, a petition for a writ of habeas corpus was filed in the federal District Court for the Southern District of Florida. The writ was granted and a hearing set for May 17, 1946. At the hearing the court examined Wade's claim that he had been deprived of his constitutional rights by the failure of Florida to furnish him with counsel. It concluded that Wade had been deprived of those rights and ordered that he be released from the custody of the respondent, Mayo, and be remanded to the custody of the sheriff of Palm Beach County, Florida, to be held for any further proceedings which the state should take. On appeal, the Circuit Court of Appeals for the Fifth Circuit reversed the lower court. It held that the Constitution does not require that a state furnish counsel to one in the position of Wade. It based this conclusion, we think, from examination of its opinion, on Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, not on any ruling that state law determines the necessity for the appointment of counsel in state cases in all non-capital prosecutions.  We granted certiorari, 31 U.S. 801, 67 S.Ct. 1529, 91 L.Ed. 1825; the case was submitted to us; on November 10, 1947, we ordered the case restored to the docket for reargument, directing that counsel discuss these questions: '(1) the propriety of the exercise of jurisdiction by the District Court in this case when it appears of record, in the state's motion or dismissal of the appeal on habeas corpus, that petitioner had not availed himself of the remedy of appeal from his conviction, apparently open after trial though now barred by limitation * * *; (2) whether the failure of Florida to make this objection in this proceeding affects the above problem.'
The first question in this case is whether Wade's failure to bring a writ of certiorari to this Court from the judgment of the Florida Supreme Court in his state habeas corpus proceeding should affect his effort to obtain release through a federal writ of habeas corpus. Or, to rephrase the problem, should certiorari to this Court be considered a part of the state remedy for purposes of the well-recognized doctrine of exhaustion of state remedies? Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406.
This inquiry may be started by considering Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572. The unanimous opinion in this case was handed down January 31, 1944. Hawk had made a motion for leave to file a writ of habeas corpus in this Court. His application was denied on the ground that he had failed to exhaust the state remedies available to him. The opinion in Hawk's case, however, has been understood by this and other courts as having been designed to give direction for procedure to advise federal courts in their consideration of applications for habeas corpus brought by a person confined under a state criminal cinviction.  One of the rules which this Court prescribed governs the issue now under consideration.
'Ordinarily an application for habeas corpus by one detained under a state court judgment of conviction for crime will be entertained by a federal court only after all state remedies available, including all appellate remedies in the state courts and in this Court by appeal or writ of certiorari, have been exhausted. Tinsley v. Anderson, 171 U.S. 101, 104, 105, 18 S.Ct. 805, 807, 43 L.Ed. 91; Urquhart v. Brown, 205 U.S. 179, 27 S.Ct. 459, 51 L.Ed. 760; United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 46 S.Ct. 1, 70 L.Ed. 138; Mooney v. Holohan, supra, 294 U.S. at page 115, 55 S.Ct. at page 343; Ex parte Abernathy, 320 U.S. 219, 64 S.Ct. 13 (88 L.Ed. 3).' 
After a person, protected by the presumption of innocence, has been convicted by a state trial court and his conviction has been subjected either to direct or collateral attacks in the state courts,  wise administration commands that this Court be asked, by appeal or certiorari, to pass upon the federal constitutional questions presented.  It is only by such a procedure that the validity of state criminal conviction can be expeditiously and finally adjudicated. 
The lower federal courts have consistently followed this rule of practice. Some district judges have used form letters which they sent to convicts confined in state prisons who sought habeas corpus.  In Gordon v. Scudder, 163 F.2d 518, the Circuit Court of Appeals for the Ninth Circuit applied the rule to a state habeas corpus proceeding in which the habeas corpus had been denied without opinion. All of the circuit courts which have considered this rule have approved it. 
Today the Court both limits and confuses the doctrine of exhaustion of state remedies so clearly expounded in Ex parte Hawk, supra. Certainly in habeas corpus procedure for review of state convictions is essential so that the applicant may know the way to test the constitutionality of his conviction and so that the public and its judicial system may be spared undue expense and interference from a succession of petitions that cannot be considered on the merits because of procedural defects. The serious and difficult problems of habeas corpus procedure in the federal courts cannot be solved by rules which have as their very core vagueness and uncertainty. 
I conclude that certiorari should be considered a part of the state procedure for purposes of habeas corpus.
The next issue is this. Can Wade, having failed to use a state remedy once available -appeal-and having failed to take a writ of certiorari to this Court from the denial of his state habeas corpus, with no conditions existing or claimed that restricted his ability to proceed in the regular course in the handling of his case after verdict, obtain relief in a federal habeas corpus proceeding for an alleged deprivation of his constitutional right to counsel when it appears that no state remedy in which relief cn be obtained is now available? 
The federal courts have the power to discharge upon a writ of habeas corpus 'a prisoner * * * in custody in violation of the Constitution * * * of the United States. * * *'  This Court held in Frank v. Mangum, that this writ is a proper procedure 'to safeguard the liberty of all persons within the jurisdiction of the United States against infringement through any violation of the Constitution * * *.'  The dissent in the Frank case agreed with the Court's theory of the availability of habeas corpus, saying at page 346 of 237 U.S., at page 595 of 35 S.Ct., 59 L.Ed. 969: 'But habeas corpus cuts through all forms and goes to the very tissue of the structure. It comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved, opens the inquiry whether they have been more than an empty shell.' As Wade alleged a deprivation of his constitutional rights, the district court had jurisdiction to entertain the petition for the writ of habeas corpus.
Habeas corpus is, however, a discretionary writ.  Thus, the question presented is this: Was it proper for the district court to exercise its jurisdiction when it appeared of record that Wade had not availed himself of the remedy of appeal, open after trial though now barred by limitation and had failed to exhaust, by writ of certiorari, the state remedy of habeas corpus? An answer to this problem can best be derived from a consideration of the nature and function of habeas corpus in a federal system of government, the relevant precedents and analogies drawn from the decided habeas corpus cases, and the resolution of similar questions in related fields.
State judicial systems are designed to provide places of trial for offenders against the criminal laws of their respective states. State courts equally with federal courts administer justice under the authority and limitations of the Constitution of the United States, the supreme law of the land, binding the judges in every state 'any thing in the constitution or laws of any state to the contrary notwithstanding.'  Thus, whenever a prisoner brings a petition for a writ of habeas corpus in the federal courts challenging collaterally a conviction in the state courts and asking release from state custody, serious questions of the relation between the federal and state judicial structures are raised. 'It is an exceedingly delicate jurisdiction given to the federal courts, by which a person under indictment in a state court, and subject to its laws, may, by a decision of a single judge of a federal court, upon a writ of habeas corpus, be taken out of the custody of the officers of the state, and finally discharged therefrom * * *.'  Respect for the theory and practice of our dual system of government requires that federal courts intervene by habeas corpus in state criminal prosecutions only in exceptional circumstances. Their duty compels them to act where the state fails to provide a remedy for violations of constitutional rights but due regard for a state's system of justice admonishes federal courts to be chary of allowing the extraordinary writ of habeas corpus where the accused, without excuse, has not exhausted the remedies offered by the State to redress violations of federal constitutional rights. 
The desirability of discretionary limitation of the habeas corpus power of federal courts in respect to state criminal prosecutions which inheres in the dual sovereignties of the federal system is re-enforced by considerations of practical administration: (1) it is not to be assumed that state courts deliberately deny to the individual his rights under the Federal Constitution; (2) the normal paths of review-appeal and petition for certiorari-are open to correct federal constitutional errors in state criminal proceedings; (3) extravagant exercise of federal jurisdiction would furnish another technique of delay in a criminal system which often permits long periods of time to elapse between sentencing and execution of sentence.
Because of the above reasons, the federal courts exercise their habeas corpus jurisdiction where an individual is in the custody of a state in limited types of situations. For example: (1) where all state remedies have been exhausted; (2) where the state remedy is seriously inadequate;  and (3) where a state attempts to interfere improperly with the Federal Government.
The third class of cases represents the largest group of situations in which federal courts exercise habeas corpus jurisdiction without the exhaustion of state remedies. The cases of this type which have come before this Court are examples of the use of habeas corpus to prevent state interference with the administration of a branch of the Federal Government,  or with a federal agency,  or with treaty rights of the United States. 
The second class is represented in this Court by only one case, Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543. There exhaustion of state remedies was not required.  'We assume in accordance with that case (Frank v. Mangum, 237 U.S. 309, 335, 35 S.Ct. 582, 590, 59 L.Ed. 969) that the corrective process supplied by the State may be so adequate that interference by habeas corpus ought not to be allowed. * * * But if the case is that the whole proceeding is a mask-that counsel, jury and judge were swept to the fatal end by an irresistible wave of public passion, and that the State Courts failed to correct the wrongs, neither perfection in the machinery for correction nor the possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob can prevent this Court from securing to the petitioners their constitutional rights.'  That Moore's case is unique, emphasizes its unusual nature; this Court has not again been compelled to resort to this extreme procedure to protect constitutional rights.
The greatest number of habeas corpus cases in the federal courts fall into class one. In Ex parte Hawk, supra, we stated the principle which governs these cases: 'Ordinarily an application for habeas corpus by one detained under a state court judgment of conviction for crime will be entertained by a federal court only after all state remedies available, including all appellate remedies in the state courts and in this Court by appeal or writ of certiorari, have been exhausted. * * *'  Litigation of this category offers the best example of the general principle of federal-habeas-corpus restraint. The insistence that state remedies be exhausted is but a concise statement of the proposition that state courts must, in all but the most exceptional cases, be the forums in which all the problems incident to a state criminal prosecution are to be answered.
Where a state offers an adequate remedy for the correction of errors in criminal trials, that remedy must be followed. Where there is a denial of constitutional rights by the highest court of a state, a remedy exists by direct review in this Court.  An accused should not be permitted to reserve grounds for a habeas corpus petition in federal courts which would have furnished a basis for a review in regular course in the state court; not even when those grounds are that the accused was denied a constitutional right by a state court subject to reversal by a higher state court.  To permit such trifling with state criminal law would disrupt its efficient administration. The federal court's refusal of consideration depends on the rule that the federal courts should not utilize habeas corpus to take the place of state remedies except in extraordinary situations where otherwise the accused would be 'remediless.'  It is not seemly that years after a conviction, when time has dulled memories, when death has stilled tongues, when records are unavailable, convicted felons, unburdened by any handicap to a normal presentation of any claim of unfairness in their trial, should be permitted to attack their sentences collaterally by habeas corpus because of errors, known to them at the time of trial. When it is shown by the record that a petitioner in a federal court for relief from a state conviction that involves a denial of constitutional rights has without adequate excuse failed to use an available state judicial remedy, although all such remedies are now barred to him by limitation, I think tha federal courts should not intervene to correct the error.
In Goto v. Lane, 265 U.S. 393, 44 S.Ct. 525, 68 L.Ed. 1070, this Court was asked to consider the issue of whether a group of prisoners, convicted of a crime in the territorial courts of Hawaii, had the right to raise in a habeas corpus proceeding brought in a federal district court alleged deprivations of their constitutional rights. The Court said: 'And, if the petitioners permitted the time within which a review on writ of error might be obtained to elapse and thereby lost the opportunity for such a review, that gave no right to resort to habeas corpus as a substitute.'  The Court found no reasons which in the exercise of a sound judicial discretion, excused the petitioners from seeking review by writ of error. Consequently, it affirmed the judgment of the district court which had refused to issue the writ. This case is a persuasive precedent in the situation now before us because the state courts of the forty-eight states and the territorial courts of Hawaii stood, in 1924, in similar positions in relation to the federal judicial structure. As the scope of review of this Court in criminal cases from state courts and Hawaiian territorial courts was then the same, no valid distinctions can be drawn between Goto's case and the situation now before us. 
It should not be thought that the practice which I would follow represents the sole instance in our jurisprudence of the loss of the right to press constitutional questions because of failure on the part of the individual to raise those issues properly or in time. The principle that federal constitutional questions must be properly raised in state courts before they will be considered by this Court is too well established to require citation. In a case decided this Term, Parker v. Illinois, 333 . S. 571, 68 S.Ct. 708, Parker was held to have lost his right to raise federal constitutional questions because of state procedure which required that those questions be raised by direct appeal to the state Supreme Court. Parker appealed his case to the intermediate Appellate Court and, consequently lost any chance of an adjudication by this Court of those issues. 
It seems to me that the considerations, analogies, and precedents discussed above admit of only one answer to the basic problem of this case. This petitioner had counsel in ample time to permit a petition for certiorari to this Court. There is not a suggestion in the record of any interference, through his own disabilities or otherwise, with petitioner's right to secure, through counsel of his own choice, review of his allegedly erroneous conviction.  Therefore, I think that the District Court to whom this petition for a writ of habeas corpus from a conviction in a state court was presented should have refused cognizance of the writ, sua sponte, since the record showed that state remedies were available  after the alleged denial of constitutional rights and that the petitioner neglected to take advantage of those remedies.  'Available' as here used carries the connotation of ability and opportunity to take advantage of the state procedure.  Florida's failure to object to consideration of the petition for habeas corpus because certiorari was not requested cannot have the effect of authorizing a federal court to examine into the validity of the conviction. The reason for not allowing habeas corpus in such cases does not depend upon state acquiescence but upon the federal judicial policy of non-interference with state criminal administration unless there has been complete use and final exhaustion of state remedies.
On the hypothesis that the decision of the Florida Supreme Court dismissing Wade's appeal from the order of the Circuit Court of Palm Beach County, Florida, was entered on the ground that the remedy in Florida for the denial of the right to counsel was by appeal instead of habeas corpus, Wade stands in no better position. If that was the real basis of the dismissal of the appeal, Wade failed to avail himself of the remedy of appeal then open to him in Florida, though now foreclosed by limitation. No doubt his counsel by motion could have obtained a ruling from the Florida Supreme Court as to whether their dismissal was on a federal or state ground in view of the then rule of this Court in Ex parte Hawk, supra, 321 U.S. at page 117, 64 S.Ct. 448, that an applicant for habeas corpus n federal courts must exhaust state remedies including appeal or certiorari to this Court. This would have permitted Wade to bring his constitutional question here for review under a regular course of procedure. If the Florida Supreme Court had refused a clarifying order, this Court would have had resources for reaching a conclusion in such a situation. See Loftus v. Illinois, 334 U.S. 804, 68 S.Ct. 1212. Consequently, I think that the judgment of the Circuit Court of Appeals should be affirmed and the case remanded to the District Court with instructions that the petition for habeas corpus be dismissed.
The CHIEF JUSTICE, Mr. Justice JACKSON and Mr. Justice BURTON join in this dissent.
^1 Wade v. Kirk, 155 Fla. 906, 23 So.2d 163.
^3 This Court has, in a number of instances, through its Clerk, distributed this opinion to state prisoners seeking habeas corpus relief in federal courts.
Potter v. Dowd, 7 Cir., 146 F.2d 244, 248: 'The Hawk decision is the latest of the Supreme Court on the subject. It was no doubt intended to enlighten the Federal inferior courts so that the rather difficult road which they must travel will have fewer obstructions. Also, the convict who believes he has been denied rights guaranteed him by the Federal Constitution will find the proper judicial haven he is seeking.'
^4 Ex parte Hawk, supra, 321 U.S. at pages 116, 117, 64 S.Ct. at page 450.
^5 If a state judgment is based upon an adequate state ground, a failure to request review by this Court does not prejudice the prisoner. White v. Ragen, 324 U.S. 760, 767, 65 S.Ct. 978, 982, 89 L.Ed. 1348; Houe v. Mayo, 324 U.S. 42, 48, 65 S.Ct. 517, 521, 89 L.Ed. 739.
^6 334 U.S. at pages 691, 692, 68 S.Ct. at page 1280, infra, I comment upon the delicate nature of the federal habeas corpus jurisdiction over state convictions. Those observations are relevant here.
^7 334 U.S. at pages 694, 695, 68 S.Ct. at pages 1281, 1282, infra.
'Your petition for writ of habeas corpus has been received and examined. From such examination, it appears that, if filed, your petition would have to be dismissed for the reason that it does not appear therefrom that you have exhausted your remedies in the Supreme Court of the United States, in accordance with the suggestion contained in a recent opinion of the Supreme Court of the United States in the case of Ex parte Henry Hawk (filed January 31, 1944), (Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572) wherein the court said:
"Ordinarily an application for habeas corpus by one detained under a state court judgment of conviction for crime will be entertained by a federal court only after all state remedies available, including all appellate remedies in the state courts and in this court by appeal or writ of certiorari, have been exhausted.'
'Accordingly, your petition has not been filed and is returned herewith. If, however, you desire to make a record in this court, you may return the petition (referring to this letter) with the request that it be filed, and it will be filed in the office of the clerk of this court.
'I do not wish to be understood as expressing any opinion on the merits of your case.'
^9 See Lyon v. Harkness, 1 Cir., 151 F.2d 731, 733; Monsky v. Warden of Clinton State Prison, 2 Cir., 163 F.2d 978, 979; Stonebreaker v. Smyth, 4 Cir., 163 F.2d 498, 501, 502; Nusser v. Aderhold, 5 Cir., 164 F.2d 127; Makowski v. Benson, 6 Cir., 158 F.2d 158; Ross v. Nierstheimer, 7 Cir., 159 F.2d 994; Guy v. Utecht, 8 Cir., 144 F.2d 913, 915; Gordon v. Scudder, supra, 9 Cir., 163 F.2d 518; Herzog v. Colpoys, 79 U.S.App.D.C. 81, 143 F.2d 137, 138.
^11 'An appeal * * * may be taken only within ninety days after the judgment or sentence appealed from is entered, except that an appeal from both judgment and sentence may be taken within ninety days after the sentence is entered.' 24 Fla.Stat.Ann. § 924.09.
^12 Florida provides two devices for collateral attack upon criminal convictions: habeas corpus and coram nobis. Wade has tried habeas corpus and failed. Wade v. Kirk, 155 Fla. 906, 23 So.2d 163. Coram nobis is available only to bring to the attention of the court specific facts, existing at the time of the trial, but not shown by the record and not known by the court or by the defendant or his counsel at the time of the trial. Lamb v. State, 91 Fla. 396, 107 So. 535. See House v. State, 130 Fla. 400, 177 So. 705; cf. Hysler v. Florida, 315 U.S. 411, 415, 416, 316 U.S. 642, 62 S.Ct. 688, 690, 691, 86 L.Ed. 932. The facts upon which Wade seeks relief were known, during the course of the trial, both to himself and to the trial judge.
^13 28 U.S.C. §§ 451-453, 28 U.S.C.A. §§ 451-453. Under the Judiciary Act of 1789, the writ could not issue if the prisoner was held under final process based upon a judgment of a court of competent jurisdiction. Ex parte Watkins, 3 Pet. 193, 7 L.Ed. 650. Congress expanded the power of the federal courts to issue the writ in situations in which the federal Constitution has been violated by the Act of February 5, 1867. 14 Stat. 385, ch. 28; see Hawk v. Olson, 326 U.S. 271, 274, 275, 66 S.Ct. 116, 118, 90 L.Ed. 61; Frank v. Mangum, 237 U.S. 309, 330, 332, 35 S.Ct. 582, 588, 589, 59 L.Ed. 969.
^15 Ex parte Royall, 117 U.S. 241, 250 et seq., 6 S.Ct. 734, 739, 29 L.Ed. 868; In re Wood, 140 U.S. 278, 290, 11 S.Ct. 738, 742, 35 L.Ed. 505; Cook v. Hart, 146 U.S. 183, 195, 13 S.Ct. 40, 44, 36 L.Ed. 934; In re Frederich, 149 U.S. 70, 75, 13 S.Ct. 793, 794, 37 L.Ed. 653; New York v. Eno, 155 U.S. 89, 15 S.Ct. 30, 39 L.Ed. 80; In re Lincoln, 202 U.S. 178, 181, 26 S.Ct. 602, 603, 50 L.Ed. 984; Urquhart v. Brown, 205 U.S. 179, 27 S.Ct. 459, 51 L.Ed. 760; Salinger v. Loisel, 265 U.S. 224, 231, 44 S.Ct. 519, 521, 68 L.Ed. 989; Goto v. Lane, 265 U.S. 393, 403, 44 S.Ct. 525, 527, 68 L.Ed. 1070; United States ex re. Kennedy v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1, 2, 70 L.Ed. 138; Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572.
^20 In re Neagle, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55; Hunter v. Wood, 209 U.S. 205, 28 S.Ct. 472, 52 L.Ed. 747 (impairment of the functions of the federal courts); In re Loney, 134 U.S. 372, 10 S.Ct. 584, 33 L.Ed. 949 (impairment of the functions of thel egislative and judicial branches of the Federal Government).
^24 Moore v. Dempsey, supra, 261 U.S. at page 91, 43 S.Ct. at page 266.
^25 Ex parte Hawk, supra, 321 U.S. at pages 116, 117, 64 S.Ct. at page 450.
^27 Andrews v. Swartz, 156 U.S. 272, 276, 15 S.Ct. 389, 391, 39 L.Ed. 422; In re Wood, 140 U.S. 278, 289, 11 S.Ct. 738, 742, 35 L.Ed. 505; Ex parte Spencer, 228 U.S. 652, 33 S.Ct. 709, 57 L.Ed. 1010; See Glasgow v. Moyer, 225 U.S. 420, 430, 32 S.Ct. 753, 756, 56 L.Ed. 1147; Waley v. Johnston, 316 U.S. 101, 105, 62 S.Ct. 964, 966, 86 L.Ed. 1302; Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982. Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455: 'The rule is not one defining power but one which relates to the appropriate exercise of power.'
^28 Ex parte Hawk, supra, 321 U.S. at pages 117, 118, 64 S.Ct. at page 450. See Adams v. McCann, 317 U.S. 269, 274, 63 S.Ct. 236, 239, 87 L.Ed. 268, 143 A.L.R. 435; United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1, 2, 70 L.Ed. 138.
^29 Goto v. Lane, supra, 265 U.S. at page 402, 44 S.Ct. at page 527. See also Urquhart v. Brown, 205 U.S. 179, 27 S.Ct. 459, 51 L.Ed. 760; Riddle v. Dyche, 262 U.S. 333, 43 S.Ct. 555, 67 L.Ed. 1009; Craig v. Hecht, 263 U.S. 255, 277, 44 S.Ct. 103, 106, 68 L.Ed. 293.
^30 The Act of April 30, 1900, which established a government for the Territory of Hawaii, provided that: 'The laws of the United States relating to appeals, writs of error, removal of causes, and other matters and proceedings as between the courts of the United States and the courts of the several States shall govern in such matters and proceedings as between the courts of the United States and the courts of the Territory of Hawaii.' 31 Stat. 158, § 86, 48 U.S.C.A. § 645. In 1925, the Circuit Court of Appeals for the Ninth Circuit was given power to review final decisions from the Supreme Court of Hawaii in all criminal cases '* * * wherein the Constitution or a statute or treaty of the United States or any authority exercised thereunder is involved * * *.' 43 Stat. 936. This power is still retained and cases from the territorial courts now come to this Court only after they have been reviewed by the Ninth Circuit Court of Appeals. 28 U.S.C. § 225, 28 U.S.C.A. § 225.
^32 In this the case differs from Williams v. Kaiser, 323 U.S. 471, 472, 65 S.Ct. 363, 364, 89 L.Ed. 398; Tomkins v. Missouri, 323 U.S. 485, 486, 65 S.Ct. 370, 371, 89 L.Ed. 407; Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 574, 85 L.Ed. 859.
^33 A state can leave a procedure open through its own courts by which constitutional questions may be raised at any time. If the state court passes upon the merits, this Court can review the constitutional question upon appeal or petition for certiorari. Herndon v. Lowry, 301 U.S. 242, 247, 57 S.Ct. 732, 734, 81 L.Ed. 1066. See Lovelady v. Texas, 333 U.S. 867, 68 S.Ct. 787 (cert. granted), Id., 333 U.S. 879, 68 S.Ct. 914 (dismissed), Ex parte Lovelady, Tex.Cr.App., 207 S.W.2d 396.
^34 I would not here decide whether or not this rule applies to cases which are governed by the principle of Moore v. Dempsey, supra, or to the situation in which a state attempts to interfere improperly with the Federal Government.
^35 For example, if Wade had not been able to obtain counsel until too late for an appeal, appeal would not have been a remedy 'available' to him. See Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049; De Meerleer v. Michigan, 329 U.S. 663, 67 S.Ct. 596, 91 L.Ed. 584; Downer v. Dunaway, 5 Cir., 53 F.2d 586, 589, 591.