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decided: June 4, 1956.



Warren, Black, Reed, Frankfurter, Douglas, Burton, Clark, Minton, Harlan

Author: Burton

[ 351 U.S. Page 278]

 MR. JUSTICE BURTON delivered the opinion of the Court.

In this case our jurisdiction is questioned by the State of Florida because the judgment of the Supreme Court of that State, which we are asked to review and which was rendered without opinion, may have rested upon an adequate state ground. For the reasons hereafter stated, we find that to be true with the result that we have no jurisdiction to entertain this petition or to consider the merits of the federal questions suggested by petitioner. While we thus deem petitioner's allegations of fact as to the merits of this case to be irrelevant here, we imply nothing as to their truth or falsity, and we refrain from any discussion that depends upon or assumes their truth.

In 1945, petitioner Durley was convicted by a jury in the Criminal Court of Record for Polk County, Florida, on two informations. In each he was charged, in three counts, with stealing cattle.*fn1 In the first count of the first information it was charged that, on July 7, 1945, petitioner, with two others, stole two steers from a Mrs. Bronson; in the second count, two cows; and in the third count, one heifer. The three counts of the other information charged that the same men on July 29, 1945, stole from a Mr. Zipperer a cow and two heifers, each of the animals allegedly stolen being the subject of a separate count. Petitioner was sentenced to serve five years' imprisonment on each count, the terms to be served consecutively, thus making a total of 30 years.

Petitioner did not appeal from his conviction but, in 1949, labeling his petition a writ of error coram nobis, he,

[ 351 U.S. Page 279]

     sentences not only violated the Federal and State Constitutions, but were contrary to a recent decision of the Supreme Court of Florida, citing Hearn v. Florida, 55 So. 2d 559. That petition was argued in the Supreme Court of Florida by counsel for the State, although neither petitioner nor his counsel was present. The petition was denied, without opinion, again on the ground that petitioner failed to show probable cause that he was held without lawful authority.

A rehearing was denied but petitioner's application for a writ of certiorari was granted by this Court, 350 U.S. 872, and counsel was appointed by this Court to represent him here, 350 U.S. 900. The case was fully briefed and argued on the jurisdictional issue as well as on the merits.

The State of Florida has objected consistently to our entertaining jurisdiction of this proceeding. Its reason is that the Florida Supreme Court's denial of the 1955 petition for a writ of habeas corpus may have rested upon one or both of two adequate state grounds. Those grounds are (1) that, under Florida law, the issues presented in 1955 already had been rendered res judicata by the 1952 litigation, and (2) that, in any event, petitioner was precluded from raising the federal issues presented in 1955 because he had failed to raise them in comparable prior proceedings where he had a fair and adequate opportunity to do so.

The State's claim as to res judicata rests primarily upon Fla. Stat. Ann., 1943, ยง 79.10, which provides that, while a judgment denying a petition for a writ of habeas corpus remains in force, no person " shall be at liberty to obtain another habeas corpus for the same cause, or by any other proceeding to bring the same matter again in question except by a writ of error or by action of false imprisonment . . . ."

[ 351 U.S. Page 281]

     Florida's other state ground is based upon its Supreme Court decisions, and particularly upon Washington v. Mayo, 77 So. 2d 620, 621. It is there stated that "The rule is clear that a convicted prisoner should not be heard to raise in a subsequent proceeding, whatever its nature, issues that were previously raised and determined, or that the prisoner had a fair and adequate opportunity to raise and have determined in earlier proceedings."

In the face of these expressions of the law of Florida, petitioner, in order to establish our jurisdiction, must demonstrate that neither of these state grounds can account for the decision below. "Where the highest court of the state delivers no opinion and it appears that the judgment might have rested upon a nonfederal ground, this Court will not take jurisdiction to review the judgment." Stembridge v. Georgia, 343 U.S. 541, 547.

"It is a well established principle of this Court that before we will review a decision of a state court it must affirmatively appear from the record that the federal question was presented to the highest court of the State having jurisdiction and that its decision of the federal question was necessary to its determination of the cause. Honeyman v. Hanan, 300 U.S. 14, 18; Lynch v. New York, 293 U.S. 52. And where the decision of the state court might have been either on a state ground or on a federal ground and the state ground is sufficient to sustain the judgment, the Court will not undertake to review it. Klinger v. Missouri, 13 Wall. 257, 263; Wood Mowing & Reaping Machine Co. v. Skinner, 139 U.S. 293, 297; Allen v. Arguimbau, 198 U.S. 149, 154-155; Lynch v. New York, supra. . . . But it is likewise well settled that if the independent [state] ground was not a substantial or sufficient one, 'it will be presumed that the State court based its judgment on the law

[ 351 U.S. Page 282]

     raising the Federal question, and this court will then take jurisdiction.' Klinger v. Missouri, supra, p. 263; Johnson v. Risk, 137 U.S. 300, 307; Lawrence v. State Tax Commission, 286 U.S. ...

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