(dissenting).
The order discharging the writ was filed in the lower court on April 22, 1948. At that -time, it was regarded as settled law that “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” the Supreme Court of the United States “by appeal or writ of certiorari, have been exhausted.”1 In other words, certiorari to the Supreme Court of the United States was regarded as a part of the state remedy for the purposes of the doctrine of exhaustion of state remedies.
As 1 construe the decision of the trial court, it refused -to consider Darr’s petition for the writ on the merits, and discharged the writ solely because Darr had not sought review of the decision of the state court in Ex parte Darr, Okl.Cr.App., 182 P.2d 523, by petition for a writ of certiorari.
The opinion in Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, came down June 14, 1948. Wade was charged with the offense of breaking and entering. He was tried in the Criminal Court of Record of Palm Beach County, Florida. The jury returned a verdict of guilty and he was sentenced to serve five years in the Florida State Penitentiary.
Immediately before the trial started in the state court, Wade asked the trial judge to appoint counsel to represent him, claiming that it was financially impossible for him to employ counsel. The judge refused the request and the trial proceeded.
On March 16, 1915, two days after the conviction, Wade filed a petition for a writ of habeas corpus in -the Circuit Court of Palm Beach Comity, Florida, in which he set up that the refusal of the judge to appoint counsel for him at the trial on the criminal charge was a denial of due process guaranteed him by the Fourteenth Amendment to the Constitution of the United States. The Circuit Court quashed the writ on authority of two decisions of the Supreme Court of Florida, Watson v. State, 142 Fla. 218, 194 So. 640, and Johnson v. State, 148 Fla. 510, 4 So.2d 671, holding that under Florida law, the -trial court had no duty to appoint counsel to represent the accused in a non-capital case. Wade took an appeal from the decision of the Circuit Court to -the Supreme Court of Florida. In that court, the Attorney General of the state filed a motion to dismiss the appeal as frivolous on two grounds: (1) that Wade had no-t appealed from his conviction, or even filed a motion for a new trial in the Criminal Court, and (2) that the Circuit Court had discharged the writ on authority of the two decisions referred to above.
The Supreme Court of Florida dismissed the appeal on May 14, 1945. Wade did not seek review in the Supreme Court of the United States by petition for a writ of certiorari.
On May 8, 1946, Wade filed an application for a writ of habeas corpus in the United States District Court for the Southern District of Florida. He alleged that the refusal of the Criminal Court to appoint counsel for him deprived him of due process of law guaranteed by the Fourteenth Amendment. That Court granted the writ, held that the refusal to appoint counsel rendered the judgment of the state court void, and ordered his discharge.
The Court of Appeals for the Fifth Circuit reversed, holding that the Fourteenth Amendment did not require the appointment of counsel in a non-capital case, unless the state law so required.2 The Supreme Court granted certiorari.
Darr was charged by information in the district court of Lincoln County, Oklahoma, with the offense of robbery of a bank with *672firearms. On December 1, 1930, he appeared in person and by counsel, waived the reading of the information, and entered a plea of not guilty. On December 27, 1930, the case .was set for trial on January 13, 1931. Oil January 13, 1931, he appeared and filed an application for a continuance, stating that he was without counsel. Thereupon, the court appointed M. A. Cox, a reputable and able lawyer of Chandler, Oklahoma, to represent him'. The trial was continued until the following day.
The offense charged was a serious one. The maximum punishment therefor was death or imprisonment at hard labor in the state penitentiary for a period of not less than five years: See 21 O.S. 1941 § 801. Darr filed a motion for a continuance on the ground that he had not had sufficient time to prepare his defense and procure witnesses. That motion was presented by Mr. Cox. The trial court denied the motion on the ground that Darr had not exercised due diligence.
On January 16, 1931, the jury returned a verdict of guilty and Darr was sentenced to imprisonment for a period of forty years in the Oklahoma State Penitentiary.
Darr filed a petition for a writ of habeas corpus in the Criminal Court of Appeals of Oklahoma alleging that his detention in the state penitentiary was unlawful because he did not have the means to employ counsel, did not have the aid of counsel, and did not have the aid of counsel of his own choosing in the criminal trial, and because his motion for a continuance on the ground he had not had ■sufficient time to prepare his defense and procure witnesses was denied by the state •court.
The Criminal Court of Appeals, solely ■on the basis of certified copies of the criminal appearance dockets, held that on January 13,' 1931, the court appointed M. A. Cox, a reputable bnd able lawyer, to represent Darr; that Cox ably represented Darr throughout the trial by attacking the sufficiency of" the information and the sufficiency of the state’s evidence, by re■questing a directed verdict; and after verdict, by filing and presenting a motion for a new trial ;■ ■ and that the motion for a continuance was denied on the ground that Darr had not exercised due diligence. The Criminal Court denied the writ.
Darr did not seek review of the decision of the Criminal Court of Appeals by petition to the Supreme Court of the United States for a writ of certiorari.
After the time for filing a petition for a writ of certiorari in the Supreme Court of the United States had expired, Darr filed his application for a writ of habeas, corpus in the United States District Court for the Eastern District of Oklahoma.
The crime with which Darr was charged, was a serious one. As stated above, he might have been punished either by death or imprisonment for a term of not less than five years. Although, through his counsel, he interposed a motion for a continuance on’ the ground that he had not had sufficient time to prepare a defense or to procure witnesses, the state court denied the motion and put him on trial on the beginning of the court day following the day counsel was appointed for him. These facts present a serious question as to whether the refusal of the trial court to continue the case in order to give Darr •time to consult with his counsel, prepare his defense, and procure witnesses did not result in the denial to Darr of the effective aid of counsel.3
I am unable to distinguish the instant case from the Wade case. If I correctly read the opinion in the Wade case, it holds that where a prisoner, who seeks a writ of habeas corpus in a United States District Court, had exhausted his state court remedies but had failed to seek review of the decision of the highest court of the state by a petition to the Supreme Court of the United States for a writ of certiorari, such failure is a relevant consideration for the Federal court in determining whether to entertain the subsequent application for a writ of habeas corpus, but not an absolute bar to the entertainment of such application by the Federal court; and that it is the right and duty of the Federal court to weigh the failure to seek certiorari against the mis*673carriage of justice that might result from a failure to grant relief and, in the exercise of a sound discretion, determine whether he should entertain or, refuse to entertain the subsequent application for a writ of habeas corpus.4
I would, therefore, reverse and remand to the District Court, with instructions to exercise the discretion with which it is endowed under the decision in the Wade case and determine whether or not it should entertain the application for the writ.
See Ex parte Hawk, 321 U.S. 114, 116, 117, 64 S.Ct. 448, 450, 88 L.Ed. 572, and cases therein cited, and the dissonting opinion in Wade v. Mayo, 334 U.S. at page 687, 68 S.Ct. 1270.
See Mayo v. Wade, 5 Cir., 158 F.2d 614.
Note, Harv.Law Review, Vol. 62, No. 1, November, 1948, p. 136; 28 U.S.C.A. § 2254; Canada v. Jones, 8 Cir., 170 F.2d 606.
Powell v. State of Alabama, 287 U.S. 45, 68-71, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; See Wade v. Mayo, 334 U.S. 672, 680, 681, 68 S.Ct. 1270.