Page:G. Ricordi v. Paramount Pictures (189 F.2d 469).pdf/1

 L.Ed. 572. The statement of the Court in Darr v. Burford, supra, 339 U.S. at page 219, 70 S.Ct. at page 598, that “Nothing has been pleaded or proved to show that here exceptional circumstances exist to require prompt federal intervention” is equally applicable to this case. The petition complains of illegal confinement since February 21, 1942. The present action was not filed until March 14, 1950. The petition contains no allegation explaining the delay, makes no showing of “exceptional circumstances of peculiar urgency”, Ex parte Hawk, supra, 321 U.S. at page 117, 64 S.Ct. at page 450, and does not explain why the regular and orderly procedure in the State Court should not be followed before asking for federal intervention.

The application, coming after the trial and sentence in the state court proceedings, comes too late. The point now raised was available as a defense in the state court trial, but was not there raised or relied upon by appellant. It can not now be raised in a collateral proceeding in a federal court in a later attack on the state court judgment. United States ex rel. Jackson v. Brady, 4 Cir., 133 F.2d 476, 481, certiorari denied 319 U.S. 746, 63 S.Ct. 1029, 87 L.Ed. 1702, rehearing denied 319 U.S. 784, 63 S.Ct. 1315, 87 L.Ed. 1727; Parker v. United States, 4 Cir., 184 F.2d 488; Ex parte Spencer, 228 U.S. 652, 660–661, 33 S.Ct. 709, 57 L.Ed. 1010; Friedberg v. United States, 5 Cir., 69 F.2d 170. See also Robinson v. United States, 6 Cir., 144 F.2d 392, 396; Woolsey v. Best, 299 U.S. 1, 57 S.Ct. 2, 81 L.Ed 3. Even if not treated as waived, it has not as yet been presented in any State Court proceeding available to the applicant. We can not assume that it would not receive as full consideration in such a State Court proceeding as it would receive here, or that the applicant would not obtain full and prompt relief in such a proceeding, if he is entitled to it.

This view of the case makes it unnecessary to consider the question discussed in the majority opinion, upon which I express no opinion. Nor does it in any way affect what rights, if any, the appellant may have against the arresting officers.