U.S. Supreme Court MOONEY v. HOLOHAN, 294 U.S. 103 (1935)

[Page 294 U.S. 103, 115]

perjured testimony or because material evidence was concealed or suppressed, that the fraud in such a case was not such fraud as was 'extrinsic to the record,' and that it was only in cases of extrinsic fraud that the relief sought could be had. It was apparently in relation to such an application that the court said that the injured party was 'without remedy.' People v. Mooney, 178 Cal. 525, 174 P. 325, 326. And it was with respect to that proceeding that the writ of certiorari was denied by this Court. Mooney v. State of California, 248 U.S. 579, 39 S.Ct. 21. The subsequent communications from the justices of the Supreme Court in connection with applications for executive clemency were of an advisory character and were not judicial judgments under the requirements of the Constitution of the United States.

We do not find that petitioner has applied to the state court for a writ of habeas corpus upon the grounds stated in his petition here. That corrective judicial process has not been invoked, and it is not shown to be unavailable. Despite the many proceedings taken on behalf of the petitioner, an application for the prerogative writ now asserted to be peculiarly suited to the circumstances disclosed by his petition has not been made to the state court. Orderly procedure, governed by principles we have repeatedly announced, requires that before this Court is asked to issue a writ of habeas corpus, in the case of a person held under a state commitment, recourse should be had to whatever judicial remedy afforded by the state may still remain open. Davis v. Burke, 179 U.S. 399, 402, 21 S. Ct. 210; Urquhart v. Brown, 205 U.S. 179, 181, 182 S., 27 S.Ct. 459; U.S. ex rel. Kennedy v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1. See, also, People of State of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 70, 49 S.Ct. 61, 62 A.L.R. 785.

Accordingly, leave to file the petition is denied, but without prejudice.

It is so ordered. Footnotes

[Footnote *] Rehearing denied Ex parte Mooney, 294 U.S. 732, 55 S.Ct. 511, 79 L. Ed. --.