December 7, 1960, Ernest Whippler, represented by court-appointed counsel, was convicted of murder. The Superior Court of Bibb County, Georgia, sentenced Whippler to death by electrocution. The Georgia Supreme Court affirmed. Whippler v. State, 1962, 218 Ga. 198, 126 S.E.2d 744. The United States Supreme Court denied certiorari. Whippler v. Georgia, 1963, 375 U.S. 960, 84 S. Ct. 446, 11 L. Ed. 2d 318. May 13, 1964, Whippler applied for federal habeas corpus. The district court, without holding an evidentiary hearing, dismissed the petition on the ground that Whippler, by not applying for state habeas corpus, had failed to exhaust his state remedies. We reverse: resort to Georgia courts is not necessary when Georgia law seems to be settled against post-conviction review of the petitioner's newly raised constitutional claims.

In Brown v. Allen, 1953, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469, the Supreme Court said of the habeas corpus petitions then before it:

"In each case petitions for certiorari to this Court for direct review of the state judgments rendered by the highest court of the state in the face of the same federal issues now presented by habeas corpus had been denied.

"It is not necessary in such circumstances for the prisoner to ask the state for collateral relief, based on the same evidence and issues already decided by direct review with another petition for certiorari directed to this Court." 344 U.S. at 447, 73 S.Ct. at 402.

Three years before, the Court had reaffirmed the rule that a state prisoner must apply for certiorari in the United States Supreme Court before seeking federal habeas corpus. Darr v. Burford, 1950, 339 U.S. 200, 70 S. Ct. 587, 94 L. Ed. 761. Brown v. Allen assumed the continuing vitality of this requirement. In Fay v. Noia, 1963, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837, the Court struck down the highest barrier posed by the exhaustion principle, holding that a state prisoner is never barred from federal habeas corpus by mere failure to exhaust state remedies no longer open to him.1

The exhaustion principle is a matter of comity, not a matter of jurisdiction. In federal habeas proceedings, "jurisdiction is confirmed by the allegation of an unconstitutional restraint and is not defeated by anything that may occur in the state court proceedings". Fay v. Noia, 372 U.S. at 426, 83 S.Ct. at 842, 9 L. Ed. 2d at 861-2. The Court overruled Darr v. Burford declaring, in effect, that application for certiorari in the United States Supreme Court is not properly to be regarded as a state remedy. But Fay v. Noia expressly left intact the "settled principles" of Brown v. Allen concerning "presently available state remedies".2

The current law of exhaustion is, at the very least, this: A habeas applicant who has sought direct review of his conviction (including all the constitutional issues raised in his habeas petition) in the highest state court, even though he has sought neither certiorari in the United States Supreme Court nor collateral review in any state court, has exhausted his state remedies. If the habeas petitioner raises constitutional issues he has never presented to the state courts, and if the applicant may still present those issues, he must first exhaust his state remedies before applying for federal habeas corpus. However, scope of the state remedy may be so narrow as to be inadequate and the possibility of state relief may be so uncertain as to make resort to state courts ineffective. Indeed, relief may be foreclosed by state law. When a federal habeas petition raises a new constitutional issue it is necessary, therefore, to examine state law to determine the utility of applying the exhaustion principle.

The district court below summarized the five grounds alleged in Whippler's habeas petition:

(1) Admission in evidence, over Petitioner's timely objection, of a coerced confession.

(2) Admission in evidence, over Petitioner's timely objection, of certain evidence obtained as the result of an unlawful search and seizure.

(3) Indictment by a grand jury and trial jury [sic] by a traverse jury from which Negroes had been systematically excluded.

(4) Confinement from July 19, 1960 to December 5, 1960 without benefit of a commitment hearing.

(5) Causing Petitioner to incriminate himself by taking his fingerprints under the pretense of custodial purposes and actually using then [sic] to obtain a conviction.

The court, in denying relief, held that the last three grounds had never been presented to the state courts, and that state habeas corpus was available to Whippler on these grounds. The state courts did, in fact, pass on the last contention, concerning improper use of Whippler's fingerprints: that issue is treated in the opinion of the Georgia Supreme Court.3 But the third and fourth grounds — unreasonable detention and systematic exclusion of Negroes from the jury — appear not to have been put to the Georgia courts. If Whippler may now raise either of these issues in a state habeas corpus proceeding, he has not exhausted his state remedies.

Habeas corpus in Georgia is a door that not every constitutionally deprived prisoner can open.4 The magic words are "deprivation of counsel".5 The applicant who cannot say them may not pass.

The Georgia rule is that habeas corpus cannot be used as a substitute for appeal, writ of error, or other remedial procedure for the correction of errors or irregularities alleged to have been committed by a trial court. Wallace v. Foster, 1950, 206 Ga. 561, 57 S.Ed.2d 920. This rule has been applied so strictly that the state is unable to cite a single case in which the Georgia Supreme Court, on habeas corpus, has held a judgment void on any ground other than denial of counsel. The state points out, however, the Georgia procedural rule that any question, constitutional or otherwise, not timely raised in the trial of a case and preserved on appeal would be considered waived and, under the "adequate and independent state ground doctrine", not subject to collateral attack.6 Before Fay v. Noia, a state ground was considered adequate and independent if application of state substantive or procedural law did not necessarily involve the determination of a federal question. Herndon v. Georgia, 1935, 295 U.S. 441, 55 S. Ct. 794, 79 L. Ed. 1530. And wide latitude was allowed the states in formulating rules of judicial procedure. Fay v. Noia radically altered the doctrine in holding that an independent state ground does not arbitrarily bar federal review on habeas corpus. This Court, relying on Fay v. Noia, has held the Georgia ground rule of assuming waiver from a failure to make a timely objection will not be allowed to frustrate the federally guaranteed right of a fairly constituted jury. Whitus v. Balkcom, 5 Cir., 1964, 333 F.2d 496. See the excellent discussion of this subject by Judge Bell in Cobb v. Balkcom, 5 Cir., 1964, 339 F.2d 95, 101.

The Attorney General recognizes that in Fay v. Noia, the United States Supreme Court drastically altered the adequate and independent state ground doctrine. We should not assume, so the argument runs, that the Georgia Supreme Court will be oblivious of Fay v. Noia.

But we are not reduced to assumptions or guesses. In Sims v. Balkcom, 1964, 220 Ga. 7, 136 S.E.2d 766, at p. 768, the ink of Fay v. Noia well dried, the Georgia Supreme Court, citing its own pre-Fay v. Noia decisions, said:

"The writ of habeas corpus is never a substitute for a review to correct mere errors of law. [Citations omitted.] It is an available remedy to attack a void judgment. [Citations omitted.] Therefore, we will not review in this proceeding alleged errors in holding one commitment hearing when the accused was without counsel, although his appointed counsel requested and obtained another commitment hearing at which the accused had counsel. Nor would alleged discrimination in making up the jury boxes in the absence of a timely challenge to the jury be reviewable [citations omitted] here or elsewhere, provided the accused was represented by counsel when such challenge must, under the law, be made."7

Under the language of Sims v. Balkcom, this petitioner does not qualify for Georgia habeas corpus. He has, therefore, exhausted his state remedies. He is entitled to his day in federal court to assert his federally protected rights.8

The judgment of the district court is reversed, and the case is remanded for proceedings, including an evidentiary hearing, consistent with this opinion.