On Petition for Rehearing
Before DUFFY, Chief Judge, MAJOR and LINDLEY, Circuit Judges. LINDLEY, Circuit Judge.The respondent, Warden of the Illinois State Penitentiary, speaking through the Attorney General, suggests in his petition for rehearing that the reversal of our judgment with directions to give petitioner a hearing will have an undesirable far-reaching effect upon prisoners of the state. He points to our decisions in United States ex rel. O’Connell v. Ragen, 7 Cir., 212 F.2d 272, and United States ex rel. Gawron v. Ragen, 7 Cir., 211 F.2d 902, reasserting the rule that when the merits of an application for habeas corpus in the district court have been previously presented to and passed upon by the state courts, including the highest court of the state, the federal district court should ordinarily decline to grant the writ even without holding a hearing. As the Supreme Court said in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 411, 97 L.Ed. 469: “Although they have the power, it is not necessary for federal courts to hold hearings on the merits, facts or law a second time when satisfied that federal constitutional rights have been protected.” In the present case we were mindful of that rule, but attempted to show that the circumstances were so extraordinary or unusual that the district court should have conducted a hearing in order to determine for itself whether defendant’s rights under the United States Constitution had been violated. In the Gawron case [211 F.2d 904], we called attention to the fact that petitioner contended that he had presented “an unusual and extraordinary situation.” There, however,we were of the opinion that the facts presented did not present a case of such unusual circumstances as to require the district court to grant a hearing.
It is clear from the authorities that a federal district court is without jurisdiction to entertain a petition for writ of habeas corpus by a prisoner of the state except where a federal question is presented and the applicant has exhausted all remedies in the state courts. It is axiomatic that the state courts are as much the guardians of the federal constitutional rights of its prisoners as are the federal courts. Consequently, the unquestioned rule is that before a district court of the United States has jurisdiction to entertain a petition for a writ of habeas corpus, it must appear that the alleged constitutional ques*314tions have been raised in the’ state court and there finally disposed: of. In such situation only the court obtains jurisdiction. However, it is not bound to act; and the cases show clearly that when there are no extraordinary circumstances the district court, in the exercise of a wise discretion, has a right to deny the application if it appears to it that the state court has correctly settled the question. Such is the effect we think, of Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469.
We did not intend to deviate from this rule; the ground of our decision lay in the narrow point which sometimes appears in applications for writs of habeas corpus by state convicts, namely, the question was presented of whether the circumstances, under the averments of the petition, were so unusual that the trial court may have violated petitioner’s rights when it refused to grant further continuances or to permit petitioner to make further effort to obtain counsel of his own choice, or when it appointed counsel who did not want to serve and is alleged to have been hostile to petitioner. It seemed to us that, under the petitioner’s averments, the circumstances were such that the court, having jurisdiction of the application, should have conducted a hearing and determined for itself Whether petitioner’s constitutional rights had been violated at the time of the trial. It may well be that, after hearing, the district court will be of the opinion that the state court’s decision upon this point is entirely convincing. On the other hand, it may be that the court will reach the opposite conclusion. In other words, upon federal questions, the federal court is not merely a rubber stamp for approving the decisions of the state courts. Having jurisdiction, it is its duty to determine the constitutional question. If the circumstances are such that it appears to the court that no adequate cause for issuance of the writ is presented, it may, in its discretion, rely upon the state court decisions, but it is not bound to do so and should not do so if it is convinced on hearing that a constitutional right has been violated. In Moore v. Dempsey, 261 U.S. at page 92, 43 S.Ct. at page 267, the court said: “ * * * it does not seem to us sufficient to allow a Judge of -the United States to escape the duty of examining the facts for himself when if true as alleged they make the trial absolutely void.” “In Bacom v. Sullivan, 181 F.2d 177, and Bacom v. Sullivan, 194 F.2d 166, the Fifth Circuit ruled that when a federal question had been presented to the state courts by at least one post-conviction procedure, certiorari on the same question having been once denied by this Court, there appeared a unique and extraordinary circumstance justifying federal examination under [Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761].” Brown v. Allen, 344 U.S. 443, at page 448, 73 S.Ct. 397, at page 403.
Needless to'say our opinion must be confined to the narrow issue presented; namely, whether the prima facie case was sufficient to require a hearing. Accordingly, the petition for rehearing is denied.