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with the orderly processes of appellate review, this Court denied the writ, for if the trial court had erred to the prejudice of petitioner's constitutional rights, it could not be assumed that the state appellate court would suffer the error to go uncorrected.15

The established doctrine was applied to meet the variations presented by the cases. By 1891, it was clear that a federal circuit court committed no error in refusing a writ on the ground that the petitioner had not come to this Court on writ of error; 16 and a great body of cases affirmed this holding that the petitioner should be "put to his writ of error.' Baker v. Grice 18 states the reason for the rule that after a final determination of the case by the state court, the federal courts will even then generally leave the petitioner to his remedy by writ of error from this Court.

99 17

. . . It is an exceedingly delicate jurisdiction given to the Federal courts by which a person under an indictment in a state court and subject to its laws may, by the decision of a single judge of the Federal court, upon a writ of habeas corpus, be taken out of the custody of the officers of the State and finally discharged therefrom, and thus a trial by the state courts of an indictment found under the laws of a State be finally prevented."

And to this the Court added, in Markuson v. Boucher,19 the explicit reason why the exhaustion principle must

15 In re Duncan, 139 U. S. 449, 454.

16 In re Wood, 140 U. S. 278.

In re Jugiro, 140 U. S. 291; In re Frederich, 149 U. S. 70, 77–78; New York v. Eno, 155 U. S. 89, 98; Pepke v. Cronan, 155 U. S. 100; Whitten v. Tomlinson, 160 U. S. 231, 242; Tinsley v. Anderson, 171 U. S. 101, 104-105; Minnesota v. Brundage, 180 U. S. 499, 503; Reid v. Jones, 187 U. S. 153; Urquhart v. Brown, 205 U. S. 179, 181-82; United States ex rel. Kennedy v. Tyler, 269 U. S. 13, 17. 18 169 U. S. 284, 291.

19 175 U. S. 184, 187.

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extend to remedies available in this Court as well as those open in the state tribunals.

"The jurisdiction is more delicate, the reason against its exercise stronger, when a single judge is invoked to reverse the decision of the highest court of a State in which the constitutional rights of a prisoner could have been claimed. . . ."

In 1913, a petitioner was denied an original writ here even though he had appealed and had applied for state habeas corpus, with the comment that writ of error to this Court was required.20 And following next upon the heels of an adjudication that a state habeas corpus action is a "suit" yielding a final reviewable judgment,"1 came the leading case of Mooney v. Holohan,22 clearly establishing the rule that available collateral attacks in the state tribunals must be exhausted in addition to direct attacks on the conviction.23 In 1944 the unanimous per curiam opinion of Ex parte Hawk stated the fully developed and established exhaustion doctrine in its most frequently quoted form.24

"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."

20 Ex parte Spencer, 228 U. S. 652, 660-61.

21 Bryant v. Zimmerman, 278 U. S. 63, 70. 22 294 U. S. 103.

23 The point has been confirmed many times. Ex parte Botwinski, 314 U. S. 586; Ex parte Davis, 317 U. S. 592; Ex parte Williams, 317 U. S. 604; Ex parte Abernathy, 320 U. S. 219; and see cases cited in note 25, infra.

24 321 U. S. 114, 116-17.

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The doctrine of Ex parte Hawk has been repeatedly approved,25 and in White v. Ragen the same Court again unanimously restated that principle in the clearest language.26

"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 court, unless the federal question involved is presented to this Court on certiorari or appeal from the state court decision."

Thus comity, which had constrained the lower federal courts to refuse a grant of the Great Writ when remedies in state courts were still open, brought forth the related rule that lower federal courts ordinarily will not allow habeas corpus if the applicant has not exhausted his remedy in this Court by certiorari or appeal from state courts' refusal of relief on collateral attack.

In Wade v. Mayo alone," a case decided less than four years later, does there appear language that may be construed as a departure from the established rule. The District Court was allowed to hear Wade's petition for habeas corpus even though he had not applied here for certiorari, because there was grave doubt whether the state judgment constituted an adjudication of a federal question. The Court said, at p. 682:

"That doubt was such as to make it reasonably certain that this Court would have denied certiorari on the theory that an adequate state ground ap

25 White v. Ragen, 324 U. S. 760, 767; House v. Mayo, 324 U. S. 42, 46, 48; Marino v. Ragen, 332 U. S. 561, 564; Wade v. Mayo, 334 U. S. 672, 679; Young v. Ragen, 337 U. S. 235, 238. And see note 32, infra.

26 324 U. S. 760, 764.

27 334 U. S. 672.

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peared to underlie the judgment. His failure to make this futile attempt to secure certiorari accordingly should not prejudice his subsequent petition for habeas corpus in the District Court."

We had pointed out in White v. Ragen, supra, a per curiam expressly reiterating the Hawk doctrine, that where a state court's "decision is based upon some other adequate non-federal ground, it is unnecessary for the petitioner to ask this Court for certiorari in order to exhaust his state remedies, since we would lack jurisdiction to review the decision of the state court.

28

Not limiting its discussion to the holding on the Hawk exception, however, Wade also treated with the general Hawk rule of the necessity for review here before seeking the writ in the federal district court. The thought behind the language on that point evidently was that review here is not usually required as a condition to a hearing on the merits in the district court. Wade did recognize that failure to come here might be relevant in determining whether a district court should entertain an application. On p. 680 it is said:

"After state procedure has been exhausted, the concern is with the appropriate federal forum in which to pursue further the constitutional claim. The choice lies between applying directly to this Court for review of the constitutional issue by certiorari or instituting an original habeas corpus proceeding in a federal district court. Considerations of prompt and orderly procedure in the federal courts

28 324 U. S. 760, 765. In the White case we concluded that the state ground was the refusal by the Supreme Court of Illinois to entertain applications with possible fact controversies. Pp. 766–67. We made it clear that while proper procedure does not require review in this Court of a judgment denying habeas corpus on an adequate state ground, other available state remedies must be exhausted before an application should be entertained in a district court. P. 767.

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will often dictate that direct review be sought first in this Court. And where a prisoner has neglected to seek that review, such failure may be a relevant consideration for a district court in determining whether to entertain a subsequent habeas corpus petition."

We do not stop to reexamine the meaning of Wade's specific language. Whatever deviation Wade may imply from the established rule will be corrected by this decision.

Ex parte Hawk prescribes only what should "ordinarily" be the proper procedure; all the cited cases from Ex parte Royall to Hawk recognize that much cannot be foreseen, and that "special circumstances" justify departure from rules designed to regulate the usual case. The exceptions are few but they exist.29 Other situations may develop. Compare Moore v. Dempsey, 261 U. S. 86. Congress has now made statutory allowance for exceptions such as these, leaving federal courts free to grant habeas corpus when there exist "circumstances rendering such [state] process ineffective to protect the rights of the prisoner." 28 U. S. C. § 2254.

In § 2254 of the 1948 recodification of the Judicial Code, Congress gave legislative recognition to the Hawk rule for the exhaustion of remedies in the state courts and this Court.30 This was done by embodying in the new statute

20 See White v. Ragen, 324 U. S. 760; Ex parte Royall, 117 U. S. 241, 251.

30 Young v. Ragen, 337 U. S. 235, 238. 28 U. S. C. § 2254 reads: "An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

"An applicant shall not be deemed to have exhausted the remedies