804 Opinion of the Court.

nois decision was an adjudication of the rights to which the petitioner was entitled under the Due Process Clause, we would be constrained to hold that he had brought himself within our governing decisions. In his oral argument here, however, the Attorney General of the State insisted that the circumstances on which petitioner relies in claiming denial of a right under the United States Constitution were not properly before the Supreme Court of Illinois on the Illinois writ of error, but must be pursued in Illinois by habeas corpus. The Attorney General relies for his view of the local law upon two recent opinions of the Illinois Supreme Court, People v. Wilson, 399 Ill. 437, 78 N. E. 2d 514, and People v. Shoffner, 400 Ill. 174, 79 N. E. 2d 200. Both these opinions certainly recognize that the right to counsel of indigent accused may, under relevant circumstances, be part of the due process which the Fourteenth Amendment guarantees. If, as a matter of local procedure, Illinois chooses to allow a federal right, such as the present record presents, to be vindicated by habeas corpus in its Illinois scope, but does not make available the Illinois writ of error, that is for Illinois to say and not for us to deny. Even though our reading of the record and of Illinois law might give us a different understanding, we have had too great difficulty in ascertaining what is the appropriate Illinois procedure for raising claims of infringement of federal rights to reject the Attorney General's submission regarding Illinois procedural law. See, e. g., Marino v. Ragen, 332 U. S. 561. If the Attorney General is correct and petitioner sought to raise even a valid federal claim by way of an unavailable Illinois remedy, we have of course a judgment that rests on a non-federal ground, calling for dismissal of our writ. In this state of uncertainty, we follow our precedent in Herb v. Pitcairn, 324 U. S. 117. See also Phyle v. Duffy, 334 U. S. 431. Accordingly, we shall continue this cause for an appropriate period to enable us to be advised without ambiguity

Syllabus. 334 U. S.

whether the Illinois Supreme Court intended to rest the judgment herein on an adequate independent state ground or whether decision of the claim under the Fourteenth Amendment was necessary to the judgment rendered.

MR. JUSTICE BLACK and MR. JUSTICE Douglas are of the opinion that the judgment should be reversed.


1. The state supreme court having affirmed dismissal of a habeas corpus proceeding involving a claim of federal constitutional right on the ground that the full record was not before it, the writ of certiorari granted to review that judgment is dismissed because the judgment can rest on an adequate non-federal ground. P. 807.

2. A state prisoner's rights under the Federal Constitution must be pursued in accordance with the state procedure or, in default of relief by available state procedure, by a new claim of denial of federal right for want of such relief. P. 807.

228 N. C. 259, 45 S. E. 2d 563, certiorari dismissed.

Petitioner sued in a state court for habeas corpus to secure release from imprisonment under a conviction alleged to have denied his federal constitutional rights. A judgment dismissing the writ was affirmed by the state supreme court. 228 N. C. 259, 45 S. E. 2d 563. This Court granted certiorari. 333 U. S. 854. Dismissed, p. 807.

By special leave of Court, Wilford L. Whitley, Jr., pro hac vice, argued the cause and filed a brief for petitioner.

Ralph Moody, Assistant Attorney General of North Carolina, argued the cause for respondent. With him on the brief was Harry McMullan, Attorney General, and T. W. Bruton, Assistant Attorney General.

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After a conviction for robbery, petitioner sued out a writ of habeas corpus in a Superior Court of North Carolina claiming that the sentence he is serving involved a denial of his rights under the Fourteenth Amendment. The writ was dismissed and the dismissal affirmed by the Supreme Court of North Carolina. 228 N. C. 259, 45 S. E. 2d 563. If petitioner's allegations, with supporting affidavits, in the habeas corpus proceedings controlled the issue before us, they would establish circumstances that make the right to assistance of counsel an ingredient of the Due Process Clause. While the Supreme Court of North Carolina recognized the right of an accused to the benefit of counsel under appropriate circumstances, it held that in the proceedings on the habeas corpus the trial court had before it not merely the petitioner's allegations but "the oral testimony of the sheriff, which was not sent up." In short, there was before the North Carolina Supreme Court only a partial record of the proceedings in the Superior Court. In reviewing a judgment of a state court, we are bound by the record on which that judgment was based. Since the North Carolina Supreme Court went on the ground that it did not have the full record before it, we are constrained to dismiss this writ because the judgment below can rest on a non-federal ground. Petitioner's rights under the Federal Constitution must be pursued according to the procedural requirements of North Carolina or, in default of relief by available North Carolina proceedings, by a new claim of denial of due process for want of such relief. Foster v. Illinois, 332 U. S. 134, 139.

MR. JUSTICE Douglas and MR. JUSTICE RUTLEDGE are of the opinion that the judgment should be reversed.


MAY 3, 1948.

Per Curiam Decisions.

No. 397. INTERNATIONAL BROTHERHood of TEAMSTERs, CHAUFFEURs, WAREHOUSEMEN & HELPERs UNION ET AL. v. DENVER MILK PRODUCERs, INC. ET AL. Appeal from the Supreme Court of Colorado. Argued January 9, 1948. Decided May 3, 1948. Per Curiam: Because of the inadequacy of the record, we decline to decide the constitutional issues involved. The appeal is dismissed without prejudice to the determination in further proceedings of any questions arising under the Federal Constitution. Cf. Rescue Army v. Municipal Court, 331 U.S. 549 (1947). Dissenting: MR. JUSTICE BLACK and MR. JUSTICE MURPHY. Herbert S. Thatcher argued the cause for appellants. With him on the brief were J. Albert Woll and Philip Hornbein, Jr. Kenneth W. Robinson argued the cause and filed a brief for appellees. Robert D. Charlton was also of counsel. By special leave of Court, George K. Thomas, Assistant Attorney General, argued the cause for the State of Colorado, as amicus curiae, urging affirmance. With him on the brief was H. Lawrence Hinkley, Attorney General. Reported below: 116 Colo. 389, 183 P.2d 529.

No. 733. SchMITT v. WILDER, DIRECTOR of LICENSING, ET AL. Appeal from the Supreme Court of South Dakota. Per Curiam: The appeal is dismissed for the want of a substantial federal question. Ashley Sellers and Kenneth L. Kimble for appellant. Ray F. Drewry, Assistant Attorney General of South Dakota, for appellees. Reported below: 71 S. Dak. 575, 27 N. W. 2d 910.

79.2588 O-48—56 809

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