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decided: April 23, 1945.



Stone, Roberts, Black, Reed, Frankfurter, Douglas, Murphy, Jackson, Rutledge

Author: Per Curiam

[ 324 U.S. Page 761]

 In these cases, petitioners moved in the Supreme Court of Illinois for leave to file their petitions for habeas corpus. Both petitioners are in the custody of respondent, under sentences upon state convictions. In each case, the Illinois court, without requiring an answer from respondent, without appointing an attorney to represent petitioners,

[ 324 U.S. Page 762]

     and without giving any reasons for its action, denied leave to file the petitions. We granted certiorari, in forma pauperis, 323 U.S. 704, because the petitions alleged facts showing prima facie violations of petitioners' rights guaranteed by the federal Constitution, and in order to consider whether the State of Illinois affords corrective process for such violations of constitutional right.*fn1 On application of the petitioners, counsel was appointed to represent them in this Court.

Petitioner White, in No. 212, alleged in his petition for habeas corpus that two indictments for "obtaining money and goods by means of the confidence game" were returned against him in the state Criminal Court; that the court, in advance of the trial, appointed counsel to represent petitioner, but that the person so appointed did not confer with petitioner until they came to court for the trial; that then counsel refused to do anything for petitioner unless petitioner had some money; that in particular petitioner

[ 324 U.S. Page 763]

     asked counsel to have one witness called in his behalf but counsel replied that "he did not have time, as he had a case in another Court, and for me to plead guilty, as the Judge would not give me a continuance." The petition for habeas corpus further alleged that petitioner asked the trial judge "to continue the proceedings so he could have time to call a witness, and confer with his attorney"; that the judge then told petitioner "to keep still, as his lawyer would do all the talking for him" and "thereupon the attorney pleaded the petitioner guilty to two indictments," on which he was given sentences of from one to ten years, to be served concurrently; and that petitioner was thereby denied the assistance of counsel in a criminal trial in violation of the Fourteenth Amendment.

The petition for habeas corpus of petitioner Lutz, in No. 259, alleged that he was tried and convicted for the crime of murder in the state Circuit Court; that he was sentenced to life imprisonment; and that his trial and conviction were without due process in violation of the Fourteenth Amendment, in that his conviction was obtained by the use of false testimony of two witnesses for the state. It was alleged that the prosecuting attorney induced and procured this testimony by bribery of the witnesses; and that he introduced it at the trial, with knowledge that it was false. Attached to the petition are the affidavits of the two witnesses in question, each stating that his testimony at the trial was false and that he was bribed to give it by the prosecuting attorney. The affidavits of two other persons, also attached to the petition, tend to corroborate the affidavits of the two witnesses.

Since the Supreme Court of Illinois dismissed both petitions without requiring respondent to answer, we must assume that the petitioners' allegations are true. Williams v. Kaiser, 323 U.S. 471, 473-474; House v. Mayo, 324 U.S. 42. We have many times repeated that not only does due process require that a defendant, on trial in a

[ 324 U.S. Page 764]

     state court upon a serious criminal charge and unable to defend himself, shall have the benefit of counsel, compare Williams v. Kaiser, supra, Tomkins v. Missouri, 323 U.S. 485 and Rice v. Olson, post, p. 786, with Betts v. Brady, 316 U.S. 455, but that it is a denial of the accused's constitutional right to a fair trial to force him to trial with such expedition as to deprive him of the effective aid and assistance of counsel. Powell v. Alabama, 287 U.S. 45; Avery v. Alabama, 308 U.S. 444; Ex parte Hawk, 321 U.S. 114, 115-116; House v. Mayo, supra. And we have often pointed out that a conviction, secured by the use of perjured testimony known to be such by the prosecuting attorney, is a denial of due process. Mooney v. Holohan, 294 U.S. 103; Pyle v. Kansas, 317 U.S. 213; cf. New York ex rel. Whitman v. Wilson, 318 U.S. 688. It follows that the allegations of fact in the petitions are sufficient to make out prima facie cases of violation of these constitutional rights of petitioners, sufficient to invoke corrective process in some court, and in the federal district court if none is afforded by the state.

The availability of such a remedy in the federal district court, turning as it does on the exhaustion of state corrective processes, see Mooney v. Holohan, supra; Ex parte Hawk, supra, 116-117, may also depend upon an application to this Court to review the decision of the state court, and upon the disposition of such an application here. Where the highest state court in which a decision could be had considers and adjudicates the merits of a petition for habeas corpus, state remedies, including appellate review, are not exhausted so as to permit the filing of a petition for habeas corpus in a federal district ...

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