Full opinion text
DELEHANT, District Judge. (Retired, serving by assignment) Loyd Carroll Grandsinger, who will usually be refeired to herein as “petitioner”, is confined in Nebraska State Penitentiary, of which Joseph B. Bovey is the duly appointed warden, preliminary to the proposed and contemplated execution of a sentence of death by electrocution, imposed upon petitioner by a judgment of the District Court of Cherry County, Nebraska, after the return of a verdict finding him to be guilty of a charge of murder in the first degree. Joseph B. Bovey will generally be designated as “respondent”. By leave of court, and after the presentation of an affidavit of poverty, petitioner filed, in forma pauperis, in this court and cause his application for writ of habeas corpus, along with a motion for appointment of counsel, and a motion for a stay of the execution of the sentence theretofore pronounced against him. The court, thereupon, entered orders, a) staying until the final determination of this proceeding the execution of the judgment and sentence of death, b) appointing the attorneys above identified as his counsel for the purposes of this proceeding, and c) ordering the respondent to show cause, within a period of time then fixed, why a writ of habeas corpus should not be issued, and granting to the petitioner leave to serve and file a response to such showing of cause. Respondent having served and filed a return to such order to show cause, and petitioner having served and filed a showing counter thereto, the court, upon due consideration of the record thus made, issued a writ of habeas corpus, to which respondent made timely return, in which he reiterated through incorporation by reference the allegations of his showing of cause. With the approval of counsel as to time, hearing was had upon the issues thus made; and, upon separate motions of the parties, further and supplemental hearing was had still later. Briefs and oral arguments of counsel have been submitted and considered, and the case is ready for final ruling by this court. Two broad questions are encountered; upon the submission. One is whether the jurisdiction of this court is properly invoked. And its answer depends upon petitioner’s exhaustion of such remedies-as are available to him under the law and in the courts of Nebraska. The other is whether, if jurisdiction be affirmed',, petitioner has made out in his pleadings and by his proofs a case entitling him to the relief for which he prays. That question has to be determined with due regard to the several grounds of invalidity by him urged against his conviction and sentence and the evidence relevant to those grounds. It seems appropriate that the issues and the pertinent facts and the court’s final ruling should be set out separately; and distinctly, first upon the jurisdictional issue, secondly upon the merits of petitioner’s claim. That sequence is observed in this announcement. Primarily, therefore, the factual or historical setting in which the issue of the exhaustion of state remedies arises will be recalled. It will not, however, be the purpose of the court to repeat in detail findings pertinent to that issue which are also significant upon the main problem of the petitioner’s claim of invalidity in his conviction and sentence. The “judgment and sentence” was made and given in and by the District Court of Cherry County, Nebraska, on June 16, 1954 after the return earlier on that date of a verdict of a jury finding the petitioner to be guilty of murder in the first degree as charged in the information on which he had been tried and fixing the penalty at death, and after the filing and overruling, also on the day of the return of the verdict, of a motion for a new trial. The petitioner, thereafter, made timely filing of a petition in error and perfected an appeal from the judgment and sentence to the Supreme Court of Nebraska. That court affirmed the judgment and sentence of the trial court on December 16, 1955. See Grandsinger v. State, 161 Neb. 419, 73 N.W.2d 632. It is obvious, from an examination of the opinion just cited, that it did not, strictly examine or rule judicially upon .either phase of the presently asserted grounds of invalidity of petitioner’s conviction and sentence, vide infra. Until the announcement of that ruling by the state’s Supreme Court and for some time thereafter, vide infra, the alleged grounds of such invalidity had not been clearly and explicitly presented to and urged upon that court. The petition in error upon which the ruling just identified was made had been filed by petitioner on July 15, 1954. Like the motion for new trial already adverted to, it assigned as a specification of error in the trial “error in the admission of evidence for the state”. That specification in the motion for new trial is in the exact language of the quotation just made. It is set out thus in the petition in error: “The trial court erred in admitting on behalf of the state incompetent, irrelevant and immaterial and prejudicial evidence over the objection -of the petitioner.” In his brief as petitioner in error in the Supreme Court of Nebraska, petitioner included within his statement of facts some assertions that question the freedom and voluntariness of statements, written and oral, on his part touching the offense charged against him which had been received in evidence. But he did not in such brief poise a real appellate contention or argument upon that point. In relation to that manner of submission of the appeal, it is fairly obvious that, despite certain language in its opinion, referring to his admissions received in evidence upon the murder trial, the state Supreme Court appears not to have considered the issue of freedom and voluntariness to have been tendered with a measure of clarity and directness adequate to require close examination by the reviewing court. And no reference to the subject appears among the syllabi or headnotes of the opinion in the official report. On January 5, 1956 petitioner filed a motion for rehearing in the state’s Supreme Court of which a copy is included with a supporting brief in a filing made in that court apparently on January 14, 1956 concurrently with the argument upon the motion. The motion for rehearing was overruled without opinion by an order entered and dated on February 11, 1956. In that motion for rehearing no effort was made to raise or tender to the court either of the grounds relied upon by the petitioner in this proceeding. A mandate of affirmance and a death •warrant having meanwhile been made and given by the Supreme Court of Nebraska, petitioner, on March 8, 1956 filed in that court and in the proceeding pending therein for review of his conviction a motion for recall of the mandate and stay of execution of the judgment and an application for stay pending an effort by petitioner to obtain a writ of certiorari from the Supreme Court of the United States for the review by the latter court of the affirmance by Nebraska’s Supreme Court of the conviction of and sentence upon petitioner. In that motion two of the questions which petitioner specified for raising by petition for writ of certiorari are thus set out: “(f) Was plaintiff in error compelled to give evidence against himself in violation of the constitutional privilege against self incrimination, or, was plaintiff in error denied his •constitutional right to a fair and impartial trial, or, was plaintiff in •error denied due process of law, by the admission by the District Court of Cherry County, Nebraska, of evidence of purported confessions and statements of plaintiff in error which the record showed were extracted from the plaintiff in error by means of threats, physical and mental duress, physical and mental exhaustion, and physical and mental torture ? * * * * * * “(i) Was plaintiff in error denied his constitutional right to adequate representation by counsel through actions of his counsel prejudicial to his case?” The motion in this paragraph identified was signed by petitioner in his own name, and not in his behalf by Mr. Charles A. Fisher, his then surviving attorney. There is nothing in the motion to indicate that Mr. Fisher had any part in its preparation. Actually, an affidavit in the record declares that he had none and knew nothing of the motion’s contents until after its filing. But for want of a proper submission of that issue, and because it is not dispositively significant, no finding is now expressly made upon it. On March 17, 1956 the Nebraska Supreme Court entered orders recalling its mandate and staying further proceedings until May 18, 1956. Under date of April 27, 1956, but with filing as of April 30, 1956, petitioner filed in the Supreme Court of Nebraska written notice that he had dismissed Mr. Fisher as his attorney on March 13, 1956, and on April 25, 1956 had retained Mr. O’Sullivan as his attorney; and on April 28, 1956, Mr. O’Sullivan signed an entry of appearance in petitioner’s behalf, which was also filed on April 30, 1956. Thereafter, and on June 18, 1956, through Mr. O’Sullivan as his attorney, petitioner filed in the Supreme Court of Nebraska a motion for leave of court to file an amended and supplemental motion for rehearing and a brief for rehearing, along with a copy of the proposed amended motion and brief. On that day also, the Supreme Court of Nebraska entered an order granting the motion and setting the amended and supplemental motion for rehearing for hearing before that court on June 23, 1956. Raised and tendered in and by the amended and supplemental motion for rehearing and brief were the following grounds for relief, as reflected in the motion itself: “3. Due to the confessed criminal misconduct of Charles A. Fisher, his then chief counsel, plaintiff in error was denied effective representation of counsel which was and is in violation of his rights under Section 1 of the Fourteenth Amendment to the Constitution of the United States, relating to deprivation ‘of life, liberty, * * * without due process of law * * * ’ “4. The plaintiff in error was denied due process of law as guaranteed to him by said Section 1 of the Fourteenth Amendment of the Constitution of the United States in that the misconduct of defense counsel, the misconduct of the special prosecutor in forcing defense counsel to confess to a possible criminal act before the jury, the failure of the trial court to protect the rights of the plaintiff in error, and the permeating incompetence of defense counsel, each and all of which denied plaintiff a fair trial as contemplated by the Constitution of the United States as heretofore referred to. “5. The alleged confessions of the plaintiff in error were obtained in violation of the due process of law clause aforementioned and their admission in evidence was and is in violation of the said due process clause of the Fourteenth Amendment of the United States Constitution aforementioned.” And the motion also tendered the following questions: “2. Did the confessed criminal and wrongful misconduct of defense counsel in tampering with the evidence and rendering it valueless create a conflict of interest between defense counsel and his client which denied plaintiff in error effective and unqualified representation by counsel ? “3. Did the claimed incompetence/ fraud and misconduct of defense counsel, in a trial where the evidence was close, where defense counsel’s misconduct was exploited by the special prosecutor to plaintiff in error’s substantial prejudice, and where the trial court failed to protect the fundamental rights of the plaintiff in error, create an exceptional situation which deprived the plaintiff in error of a fair trial under the Fourteenth Amendment of the United States Constitution as heretofore claimed? “4. Were the confessions, which were admitted in evidence by the trial court, obtained under such circumstances that their use by the State was contrary to the rights guaranteed to plaintiff in error by the Fourteenth Amendment of the United States Constitution heretofore referred to?” Hearing was had on the amended and supplemental motion for rehearing on June 23, 1956, and it was denied without opinion by an order of the Supreme Court of Nebraska made and entered on June 30, 1956. Stay of execution of the sentence having theretofore been granted by one of the justices of the Supreme Court of the United States, petitioner, on July 9, 1956 filed in that court a petition for a writ of certiorari to review the foregoing action of the Supreme Court of Nebraska, in which petition were presented the following questions: “1. Was petitioner, a defendant in a state capital case, denied due process under the Fourteenth Amendment to the United States Constitution: (a) Where defense counsel was caught during the trial tampering with the evidence introduced in the case by the State, was forced to confess his criminal misconduct in open court before the jury, thereby debasing and disgracing himself and his much harried client, and thus placing himself in a situation in which his own interests in protecting his professional future were adverse to the duties he owed his client, and where this conflict of interest prevented him from giving petitioner effective and unqualified representation by counsel; and/or (b) Where the exploitation of defense counsel’s misconduct by the prosecutor and trial court, coupled with defense counsel’s general incompetence, particularly in failing to make proper and adequate objections in preserving federal questions for review, and other misconduct of the prosecutor and the failure of the trial court to protect petitioner’s essential rights, deprived petitioner of a fair trial. “2. Did the admission and use of petitioner’s confessions constitute a denial of due process under the Fourteenth Amendment to the United States Constitution.” On October 22, 1956, the Supreme Court of the United States entered an order denying the foregoing petition for a writ of certiorari. Grandsinger v. Nebraska, 352 U.S. 880, 77 S.Ct. 104, 1 L.Ed.2d 81. On October 29, 1956, the Supreme Court of Nebraska by an order fixed December 28, 1956 between the hours of 6:00 a. m. and 6:00 p. m. as the time for the execution of the sentence upon the petitioner and issued a death warrant accordingly. Shortly before the time thus prescribed for the execution of the sentence petitioner in his own name filed herein the application for a writ of habeas corpus. While he acted in that behalf in his own name, it should not be supposed that his application is to be regarded as the work of an illiterate litigant. He manifestly had the assistance of a person or of persons skilled in the law in its preparation. That will not, indeed can not, be denied. The grounds for relief set out in the application are these: “The above described judgment and sentence was and is null and void because during the trial a conflict of interest arose which destroyed petitioner’s trial counsel’s ability effectively to represent petitioner. Due to this conflict of interest petitioner was deprived of the effective and unqualified representation of counsel which the Fourteenth Amendment to the United States Constitution commands to be afforded to a defendant in a state capital case.” The deprivation of the right of counsel arose for the following reasons: “(a) Petitioner alleges that during the course of his trial for first degree murder in the District Court of Cherry County, Nebraska, the State of Nebraska introduced into evidence a belt allegedly worn by the victim; that said belt allegedly contained a hole which the State of Nebraska contended was made by the fatal bullet; that the State of Nebraska sought by expert testimony to prove that the hole could have been made only by a .22 caliber size bullet; that such evidence was important to the State’s case; and that the Court impressed the importance of the Exhibit upon the jury and warned them merely to examine but not to probe at the hole. “(b) Petitioner further alleges that on the tenth day of the trial, when the proceedings had reached the crucial stage at which final arguments of counsel were to be made to the jury, petitioner’s Chief Defense Counsel was caught in the act of attempting to enlarge the size of the hole in the said belt by pushing a tapered dowel stick through it, said misconduct oecuring (sic) after the exhibits had been brought into the courtroom but before court had actually convened. “(c) Petitioner further alleges that his counsel caused or permitted counsel’s gross misconduct to be brought to the jury’s attention, as shown by the following proceedings which took place when the court convened a few moments later: “By Mr. Clarke (special prosecutor) : “Before we proceed with the arguments, Your Honor, there is a matter that has been taken up with, Your Honor, which we wish to get into the record. “The Court: Very well. “Mr. Clarke: We wish the record to show that counsel for the defendant, is willing that it shall show, that this morning (sic) in this court room, after the court reporter had brought all the exhibits in the case out and laid them on the reporter’s desk, Mr. Fisher, one of the counsel for the defendant, while he was examining Exhibit No. 10, being the leather pants belt heretofore identified as the belt of Marvin Hansen, and that at that time he took a dowel, being one of the wooden dowels on the reporter’s desk, and being either the same or one exactly like the one I am holding in my hand, which I will have to have marked as an exhibit, and pushed it violently— “Mr. Fisher: (Interrupting) I didn’t violently push it— “Mr. Clarke: (Interrupting) pushed it through the hole in the belt hard enough so that it materially enlarged the size of the hole to an extent which cannot now be determined and that the belt, Exhibit No. 10, is not now in the same condition as it was when it was offered in evidence and received in evidence, and that the hole is now materially larger than it was before Mr. Fisher did that. “(Mark this dowel as an exhibit, please.) (The wooden dowel referred to was marked as Exhibit No. 75.) “The Court: Mr. Fisher, as I understand it you have told counsel that you did that ? “Mr. Fisher: Yes. “The Court: You recognize that the hole is larger? “Mr. Fisher: Yes. “(d) Petitioner further alleges that his counsel’s confessed willingness to have this conduct brought to the jury’s attention was a flagrant violation of the duties counsel owed to petitioner; that petitioner’s defense was and is that he is innocent, and that at the time this misconduct took place the jury was going to have to resolve conflicting evidence and,, in the event of a guilty verdict,, determine whether or not to impose the death penalty; that defense counsel must have known how prejudicial it would be to petitioner’s, rights to have the jury diverted from the grave and difficult duties it faced: to the gross misconduct of counsel; but that defense counsel nonetheless, made no effort to protect petitioner’s, rights. “(e) Petitioner further alleges, that his counsel was diverted from, his duty to use all honorable means, to present facts and arguments in. behalf of petitioner and to abide by the Canons of Professional Ethics of' the Legal Profession because of a. conflict of interest created when his misconduct was discovered and he-therefore faced the prospect of criminal punishment, disbarment or other-disciplinary action, or economic loss;. and that counsel resolved this conflict of interest by cooperating with, court and prosecutor in order to protect himself, in utter disregard of" his duties to petitioner, whose own life was then in jeopardy. “(f) Petitioner further alleges, that the foregoing acts of misconduct were done without petitioner’s, knowledge at any time and without his consent or authorization, express, or implied. “The above described judgment, and sentence was and is void for the-reason that purported confessions, of petitioner were received in evidence and used to influence the jury notwithstanding the fact that the purported confessions were coerced and their use violated petitioner’s rights under the due process clause of the Fourteenth Amendment to the United States Constitution. “These purported confessions were coerced and their admission in evidence was a violation of petitioner’s constitutional rights for the following reasons: “(1) Prior to the time petitioner was apprehended he was physically, emotionally and mentally exhausted, having gone without food for twenty-four hours and without sleep for a similar or longer period. Petitioner had nearly drowned and was in no condition to undergo a long and intensive period of questioning. “(2) Petitioner was threatened, intimidated, and physically abused by officers of the state, Cherry County, and other members of the posse which captured him on Friday afternoon, April 9,' 1954. “(3) Petitioner was immediately taken to Valentine, Nebraska, for questioning and was frightened by a large mob milling about the place of questioning. “(4) On Friday evening, April 9, 1954, petitioner signed a purported confession after having been threatened, physically abused, and interrogated at great length by police officers. “(5) Petitioner at later times made other purported confessions which were used at the trial as a basis for the judgment and sentence of death now imposed upon petitioner. Petitioner alleges that these confessions were false, and were the result of further physical disabuse, threats, intimidations, and long and intensive questioning lasting for many hours, which made petitioner confess out of fear for his life. “(6) Petitioner alleges that he was held incommunicado from the time of his arrest on Friday afternoon, April 9, 1954, until at least Wednesday, April 14, 1954, and that despite attempts by friends, relatives and others to contact petitioner, he, petitioner, was not permitted to secure legal counsel or to consult with and obtain the advise (sic) of friends and relatives. “(7) Petitioner further alleges that he was not promptly given a preliminary hearing as required by the law of the State of Nebraska.” In the countershowing here of petitioner replying to respondent’s return to the order to show cause why the writ should not be issued, petitioner’s court appointed counsel amplified and particularized the grounds for relief asserted by him in his application to this court. That was done in language which, though not copied at length, is summarized by the writer hereof in a footnote. Petitioner’s status as “a person in custody pursuant to the judgment of a state court” would seem sufficiently to have been emphasized. In view of it, Title 28 U.S.C. § 2254 has to be regarded. It follows: “An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. “An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.” Essentially, that section, newly enacted in 1948, translated into formal legislation and somewhat clarified and amplified a procedural requirement that had emerged from many reported judicial opinions, of which Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572, is a fair reflection and summary. By virtue of the cited statute, it appears that a petitioner for a writ to procure his release from confinement under a state judgment is absolved from the necessity of resort to state remedies if “it appears * * * that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights” of the petitioner. The question at once arises, therefore, whether either of those supposed inadequacies of state procedure appears. Its answer is not unmistakably clear when one examines the course of Nebraska authority. The per curiam opinion in Ex parte Hawk, supra, though with something less than adequate assurance and analysis, indicates that until its date, the Supreme Court of the United States thought that, in Nebraska’s procedural system, one might seek relief against a void sentence by a state court through a writ of habeas corpus or by quest of a writ of error coram nobis, depending upon the appropriateness of those remedies severally to the history of his particular case. But subsequent phases of Hawk’s efforts to secure his release from imprisonment served somewhat to obscure the certainty of Ex parte Hawk, supra. Later in 1944, in Hawk v. Olson, 145 Neb. 306, 16 N.W.2d 181, 183, the Supreme Court of Nebraska affirmed a judgment of the District Court of Lancaster County, Nebraska, summarily denying a petition of Hawk for a writ of habeas corpus. In the course of its opinion it undertook to distinguish between the availability of the writ of error coram nobis and that of habeas corpus; and, doing so, used this language : “The writ of error coram nobis has been recognized in this state. Carlsen v. State, supra” (i. e. 129 Neb. 84, 261 N.W. 339). “The object of the writ is to bring into the record, before the court that rendered the judgment, facts which were unknown to the defendant at the time of trial through no lack of reasonable diligence on his part, which, if known at the time of the trial, would have resulted in a different judgment. As stated in Carlsen v. State, supra * * *: ‘ * * * the writ of habeas corpus does not afford a corrective judicial process to remedy an error of fact, at the trial, without which a conviction would not have resulted. * * * Habeas corpus is not a proper remedy to release one from prison who has been wrongfully convicted.’ ” Reviewing that ruling upon certiorari the Supreme Court of the United States in Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 120, 90 L.Ed. 61, reversed it and remanded the case for the purpose of trial upon the merits of Hawk’s claim that he had been denied the effective assistance of counsel. In its opinion, the court, speaking through Mr. Justice Reed, said, among other things: “As the Supreme Court of Nebraska considered the motion for continuance on the merits, no question of state procedure for the reexamination of criminal convictions arises. As to the issue on the motion for continuance, our duty requires us to determine only whether or not the denial under the facts alleged violates due process. We think there was an allegation that no effective assistance of counsel was furnished in the critical time between the plea of not guilty and the calling of the jury. Continuance may or may not have been useful to the accused but the importance of the assistance of counsel in a serious criminal charge after arraignment is too large to permit speculation on its effect. We hold that denial of opportunity to consult with counsel on any material step after indictment or similar charge and arraignment violates the Fourteenth-Amendment. “Petitioner states a good cause of action when he alleges facts which support his contention that through denial of asserted constitutional rights he has not had the kind of trial in a state court which the due process clause of the Fourteenth Amendment requires. This, of course, does not mean that uncontradicted evidence of a witness must be accepted as true on the hearing. Credibility is for the trier of the facts. The evidence may show that the charge was served upon petitioner well in advance of the trial (see note 5, supra) and that he had ample opportunity to consult with counsel and secure any needed witnesses. He may have intelligently waived his constitutional rights. Adams v. U.S. ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268. “Petitioner carries the burden in a collateral attack on a judgment. He must prove his allegations but he is entitled to an opportunity.” But when the case was returned to the Nebraska Supreme Court with a mandate of reversal, that court refused to enter judgment on the mandate of the Supreme Court of the United States, Hawk v. Olson, 146 Neb. 875, 22 N.W.2d 136, 138. In its justification of that patently unusual course it said in part: “We think the Supreme Court of the United States overlooked the full import of our opinion, for it said: ‘When the corrective process is provided by the state but error, in relation to the federal question of constitutional violation, creeps into the record, we have the responsibility to review the state proceedings.’ (Emphasis supplied.) ‘As the Supreme Court of Nebraska considered the motion for continuance on the merits, no question of state procedure for the reexamination of criminal convictions arises.’ (Emphasis supplied.) The Supreme Court of the'United States thus, as a premise for its jurisdiction to review and for its decision, assumed a proposition of state law contrary to our holding in the case. ***** “A ‘question of state procedure for the reexamination of criminal convictions’ did arise and was determined by us. That question remains in this case and is here now. A habeas corpus proceeding is not a ‘corrective judicial process’ in which the questions which petitioner seeks to present may be determined in the courts of this state. Although it holds that habeas corpus is a process available in the federal courts to redress the violation of the federal constitutional right, the Supreme Court of the United States does not discuss nor pass upon the nature of the remedy available in the courts of Nebraska. “It is not for us to say what constitutes a violation of the due process of law clauses of the Federal Constitution when the Supreme Court of the United States has spoken on that subject with relation to the question presented. Neither is it for us to say what issues may be justiciable in an application for a writ of habeas corpus when that writ is sought in the federal courts. But those are not and were not the issues presented and determined by us. “The issue here now is the same as it was when the case was initially before us, and that is, what issues are justiciable in an application for a writ of habeas corpus in the courts of this state. That question is for the courts of this state to decide. We have the undoubted right to decide upon our own jurisdiction and the jurisdiction of the courts of this state to which our appellate power extends. Davis v. Packard, 8 Pet. 312, 8 L.Ed. 957; Johnson v. Radio Station WOW [146 Neb. 429] 19 N.W.2d 853. The Supreme Court of the United States has said: '* * * the state may supply such corrective process as to it seems proper.’ Frank v. Mangum, 237 U.S. 309, 335, 35 S.Ct. 582, 590, 59 L.Ed. 969, 983; “In Jackson v. Olson [No. 32012, 146 Neb. 885] 22 N.W.2d 124 [165 A.L.R. 932], released concurrently herewith we have re-examined and restated the rules governing the use of the writ of habeas corpus in this state and pointed out that our holdings are in accord with the decisions of the Supreme Court of the United States there cited. Those rules are: To release a person from a sentence of imprisonment by habeas corpus, it must appear that the sentence was absolutely void. Habeas corpus will not lie to discharge a person from a sentence of penal servitude where the court imposing the sentence had jurisdiction of the offense, had jurisdiction of the person of the defendant, and the sentence was within the power of the court to impose. Such a judgment is not void. Habeas corpus cannot be used as a substitute for a writ of error. Habeas corpus is a collateral and not a direct proceeding when regarded as a means of attack upon a judgment sentencing a defendant. The regularity of the proceedings leading up to a sentence in a criminal ease cannot be inquired into on an application for a writ of habeas corpus, that matter being assailable only in a direct proceeding. When the judgment is regular upon its face and was given in an action where the court had jurisdiction of the offense and of the person of the defendant, extrinsic evidence is not admissible to show its invalidity. “Under those rules the issue, which the Supreme Court of the United States said petitioner presents, cannot be determined in a habeas corpus proceeding in the courts of this state. ***** “In full accord with our decisions we are required to hold that petitioner’s issues which the Supreme Court of the United States said he is entitled to have an opportunity to prove are issues which are not justiciable in a habeas corpus proceeding in this state.” Hawk, thereafter, undertook to procure his release through quest of a writ of error coram nobis but without success. Hawk v. State of Nebraska, 151 Neb. 717, 39 N.W.2d 561, 565, certiorari denied 339 U.S. 923, 70 S.Ct. 612, 94 L.Ed. 1346. It is to be noted, however, that on that occasion, he obtained, in the trial court, a hearing upon the merits of his claim, and, in the state’s Supreme Court, a review of the decision below upon the merits. He failed not because the remedy pursued was wholly unavailable but because, as both of the state courts found, the operative facts did not support his claim, including the element of it having to do with the alleged denial of the effective assistance of counsel. In the state Supreme Court’s opinion emphasis was placed upon Hawk’s knowledge, or readily available opportunity with reasonable diligence to have knowledge, at the time of his initial trial, of the wrongs of which he was complaining in the proceeding for writ of error coram nobis. And it also expanded upon Hawk’s supposed competence to represent himself in criminal litigation. The following excerpt from the opinion cited in this paragraph is instructive upon the state court’s appraisal of the reach of its writ of error coram nobis: See also Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124, referred to in the companion Hawk opinion; and Swanson v. Jones, 151 Neb. 767, 39 N.W.2d 557, both essentially supporting the view advanced in the Hawk opinion from which quotation has just been offered. “The writ of error is brought for a supposed error in law apparent on the record, and takes the case to a higher tribunal where the question is to be decided and the judgment, sentence, or decree is to be affirmed, modified, or reversed, while the writ of error coram nobis is brought for an alleged error in fact not appearing on the record, and lies to the same court in order that it may correct the error, which it is presumed would not have been committed had the fact in the first instance been brought to its notice. See 3 Am. Jur., Appeal and Error, § 1276, p. 766. “The common-law writ of error coram nobis is not a substitute for the statutory remedy of a writ of error under the Nebraska criminal procedure. See, Carlsen v. State, 129 Neb. 84, 261 N.W. 339, certiorari denied 293 U.S. 607, 55 S.Ct. 123, 79 L.Ed. 698; Newcomb v. State, 129 Neb. 69, 261 N.W. 348; Swanson v. State, 148 Neb. 155, 26 N.W.2d 595, certiorari denied, 331 U.S. 863, 67 S.Ct. 1759, 91 L.Ed. 1869. “The purpose of the writ of error coram nobis should be noted. The writ of error coram nobis is to enable the court to recall some adjudication, made while some fact existed which, if before the court, would have prevented rendition of the judgment, and which, through no fault of the party, was not presented. See Swanson v. State, supra. “The common-law writ of error coram nobis to bring into the record facts which were unknown to the defendant at the time of trial through no lack of reasonable diligence on his part, which, if known at the time of the trial, would have resulted in a different judgment, exists in this state under section 49-101, Comp.St.1929, now section 49-101, R.S.1943. See Carlsen v. State, supra. “Where the facts alleged are known to the applicant before or during the progress of the trial, or could have been known by the exercise of reasonable diligence, the writ must be denied. See, Swanson v. State, supra; Dobbs v. State, 63 Kan. 321, 65 P. 658; 24 C.J.S. Criminal Law § 1606(6), p. 154.” Long examination of Nebraska’s decisions within this area of the law, including, but not at all limited to, those already cited applications and limitations of the law, does not persuade this court that in the state’s jurisprudence there is an absence of available state corrective process for the vindication of a position such as petitioner is now taking. It is true that the later Hawk opinions tend strongly to support the view that a proceeding in the state court for a writ of habeas corpus may not be resorted to in Nebraska’s courts because of error or denial of due process in the reception of an involuntary or coerced statement or confession made by one accused of crime, or even because of the denial of the federally guaranteed constitutional right to the effective assistance of counsel through the circumstances pleaded here, vide infra. But it does not appear that the issue of the denial of the effective assistance of counsel may not be raised in a proceeding for a writ of error coram nobis. That is especially true in this case in the light of the manner in which the asserted deprivation of such assistance arose and of the present petitioner’s age and immaturity Those factors seem clearly to distinguish it from Hawk’s problem. Nor is any circumstance known or believed to exist which renders any available process ineffective to protect the rights of the petitioner if properly asserted in the state courts. Upon that point, this court is satisfied that, under all of the conditions that existed in petitioner’s trial he would not, in a state court corrective proceeding, find himself barred from the full and fair consideration of his contention of the denial of the effective assistance of counsel by reason of his failure, in the crisis in which he unwittingly found himself at the most perilous moment of his trial for a capital offense, to repudiate his erring counsel and thereafter to assume his own defense. The court, therefore, is persuaded that it must inquire whether there has been an exhaustion by petitioner of the remedies available to him under the laws and in the courts of Nebraska. That inquiry has been made and it is believed that it must be answered affirmatively. It has frankly to be acknowledged that the court’s conclusion would be directly to the contrary but for Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 402, 97 L.Ed. 469. Prior to the ruling in that case, this court had admittedly thought of the exhaustion of state remedies exclusively in terms of the so-called “collateral remedies”. One might have been mistakenly led to that supposition by the language of Ex parte Hawk, supra, although that opinion did not deal at all with the subject of direct proceedings for review of conviction but arose in a setting in which only collateral remedies were involved. But Brown v. Allen, supra, seems conclusively to have settled the question. That ruling affected three separate appeals from the affirmance of denials of petitions for writs of habeas corpus tendered by state prisoners to United States District Courts after they had pursued no corrective remedy other than an unsuccessful appeal to the state’s Supreme Court from their original convictions and sentences and an unavailing application to the Supreme Court of the United States for a writ of certiorari to review the affirmance of such convictions. The procedural posture of each of the cases then before the Supreme Court of the United States was, therefore, identical with that of the present action. And, despite a wide variety of view upon other matters, as reflected in the opinions reported under the single citation, the court seems clearly to hold that, without the prosecution of any collateral proceeding whatsoever, the presentation of the issue relied upon for a writ of habeas corpus, in a direct appeal from conviction, followed by the unsuccessful effort to obtain review through certiorari, sufficiently exhausts state remedies to comply with Title 28 U.S.C. § 2254. In the body of the opinion by Mr. Justice Reed, it is said that: “ * * * We conclude that all required procedure for state review of the convictions had been exhausted by petitioners in each case before they sought the writs of habeas corpus in the federal courts. 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. It is to be noted that an applicant is barred unless he has ‘exhausted the remedies available in the courts of the State * * * by any available procedure.’ The legislative history shows that this paragraph, in haec verba, was presented to the Congress with the recommendation of the Judicial Conference. The legislative history of [28 U.S.C.] § 2254 has no discussion of the considerations which moved congressional enactment other than that contained in S. Rep. No. 1559. But see a similar clause § 2254 in H.R. 3214, 80th Cong., 1st Sess.; H.R. 3214, 80th Cong., 2d Sess.; S.Rep. No. 1559, 80th Cong., 2d Sess., p. 9; Report of the Judicial Conference of Senior Circuit Judges, 1947, pp. 17-20. “The second paragraph of § 2254 has been construed by several courts of appeals. In Ekberg v. McGee, 9 Cir., 191 F.2d 625, the Ninth Circuit refused to consider that the statute meant to deny a federal forum where state procedures were inexhaustible. The Third Circuit in [United States ex rel.] Master v. Baldi, 198 F.2d 113, 116, held that the exhaustion of one of several available alternative state remedies with this Court’s denial of certiorari therefrom is all that is necessary. In Bacom v. Sullivan, 5 Cir., 181 F.2d 177, and Bacom v. Sullivan, 5 Cir., 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. “When, in April 1948, Judge Maris presented the Judicial Conference draft of § 2254 to the Senate Judiciary Subcommittee, the language of the revision of 28 U.S.C., on which the hearings were being held, set out three bases for exercise of federal jurisdiction over applications for habeas corpus from state prisoners. Under the language of the bill as it then read, an application might have been entertained where it appeared (1) that the applicant had exhausted the remedies available in the courts of the state, or (2) where there was no adequate remedy available in such courts, or (3) where such courts had denied the applicant a fair adjudication of the legality of his detention under the Constitution and laws of the United States. In accepting the recommendation of the Judicial Conference, the Congress eliminated the third basis of jurisdiction. S.Rep. No. 1559, p. 9, shows the reason for this as follows: “ ‘The second purpose is to eliminate, as a ground of Federal jurisdiction to review by habeas corpus judgments of State courts, the proposition that the State court has denied a prisoner a ‘fair adjudication of the legality of his detention under the Constitution and laws of the United States.’ The Judicial Conference believes that this would be an undesirable ground for Federal jurisdiction in addition to exhaustion of State remedies or lack of adequate remedy in the State courts because it would permit proceedings in the Federal court on this ground before the petitioner had exhausted his State remedies. This ground would, of course, always be open to a petitioner to assert in the Federal court after he had exhausted his State remedies or if he had no adequate State remedy. “ ‘The third purpose is to substitute detailed and specific language for the phrase ‘no adequate remedy available.’ That phrase is not sufficiently specific and precise, and its meaning should, therefore, be spelled out in more detail in the section as is done by the amendment/ “If the substitution for ‘adequate remedy available’ of the present definition was intended by the Congress to eliminate the right of a state prisoner to apply for relief by habeas corpus to the lower federal courts, we do not think that the report would have suggested that a remedy for denial of a ‘fair adjudication’ was in the federal court. The suggested elimination of district and circuit courts does not. square with the other statutory habeas corpus provisions. See 28. U.S.C. §§ 2241, 2242, 2251, 2252, 2253, 3d paragraph 28 U.S.C.A. §§ 2241, 2242, 2251, 2252, 2253. We are unwilling to conclude without a definite congressional direction that so radical a change was intended.” And the initial paragraph of the syllabus is in this language: “Where, on direct review of his conviction, a state prisoner’s claim of federal constitutional right has been decided adversely to him by the state supreme court and an application to this Court for certiorari has been denied, he has satisfied the requirement of 28 U.S.C. § 2254 that state remedies be exhausted before a federal court may grant an application for habeas corpus. Pp. 446-450. “(a) It is not necessary in such circumstances that he pursue in the state courts a collateral remedy based on the same evidence and issues. Pp. 447-450. “(b) Section 2254 is not to be construed as requiring repetitious applications to state courts for relief. P. 448, n. 3.” This court now puts aside with brief comment, but only after due study and reflection, the argument that the precise issues now submitted to this court have not been presented in the proceedings in the state court relied upon as exhausting state remedies. That contention appears to be factually unsupported. The history of the appellate proceedings pursued by petitioner has already been set out at great length and this includes extensive disclosure of the issues presented in the various appellate steps. It is true that, prior to the filing of the opinion of the Supreme Court of Nebraska in Grandsinger v. State, 161 Neb. 419, 73 N.W.2d 632, the issue of the denial of the effective assistance of counsel was not tendered at all and the issue of the denial of due process through the admission in evidence of involuntary and coerced statements of petitioner was only inadequately tendered. But promptly théreafter, and with the State Supreme Court’s allowance, upon motion therefor, and. in the amended and supplemental motion for rehearing, both questions were squarely and vigorously urged upon the court. That court denied corrective relief despite the presentation of those issues. And certiorari was thereafter sought upon the record thus finally made, and it was denied. Admittedly, this court might have proceeded with greater assurance if the State’s Supreme Court had accompanied its final ruling with an opinion. But it was not obliged to do so. And it may be supposed now to have considered and rejected the position taken in the amended and supplemental motion for rehearing. If it were going to disregard it as not really submitted for consideration it should have refused leave to file the amended and supplemental motion. And certainly the denial of certiorari occurred in the face of the whole record as finally made. Accordingly, whatever this court might have concluded before the decision in Brown v. Allen, supra, it now considers and holds that the record before it shows an adequate compliance with Title 28 U.S.C. § 2254. And it proceeds to the examination of petitioner’s claims upon their merits. At the threshold of the consideration of the merits of the proceeding, it is in order, without purposeless repetition of the language of the pleadings already set forth, to recall the grounds which petitioner asserts for his release from his present custody. They are, first, his deprivation of due process of law, through the admission in evidence in his trial upon the first degree murder charge, of certain statements or confessions, in part written and partly oral, claimed by him not to have been voluntarily made but rather to have been extorted from him by force and coercion, both physical and mental; and secondly, the denial to 'him of the effective assistance of counsel guaranteed by the Sixth Amendment of the Constitution of the United States, through the wrongful conduct of his principal counsel near the close of his trial and the action, thereafter and incident thereto, of such counsel, of the special prosecutor for the state, and of the trial judge. No issue is here made upon the guilt or innocence of petitioner under the murder charge which evoked his trial in, and was the vital question before, the state court. This court is necessarily unconcerned with, and will express no opinion upon, his guilt. Nor will it find facts or discuss problems relating solely to such guilt and not involved, immediately or remotely, in either or both of the two substantive grounds for relief now relied upon by petitioner. Loyd Carroll Grandsinger was born August 28, 1932. In April, 1954 he was, therefore, approximately twenty-one years, eight months of age. He was five feet six inches in height and weighed slightly more than one hundred twenty pounds. On the score of his racial background, he has some not clearly defined North American Indian blood but is largely white in his appearance. In the way of formal education he had completed the common or grade school courses and between one year and two years of high school studies. In appearance he is alert and intelligent; and he readily and clearly understands and uses the English language. His mother had died when he was about thirteen years old, but his father is still living. Petitioner was born at Valentine, Nebraska which is near to the interstate boundary between Nebraska and South Dakota, only about twelve miles southerly from it, in fact. His boyhood home had been in the portion of Nebraska and in the neighboring part of South Dakota, largely in the latter state, in which his father lived in April, 1954 and still lives. However, early in April, 1954 and for a few months immediately theretofore, petitioner resided in Bell Gardens, a suburb of Los Angeles, California. He was married and had one child. Early in April, 1954 he was estranged from his wife but not alienated from her beyond hope of reconciliation. He has a brother, Leon Grandsinger, who is about ten or eleven years his senior, and in early April, 1954 was also in the Los Angeles, California vicinity. Early in April, 1954 and probably during the predawn portion of April 3, 1954, petitioner and Leon Grandsinger left the Los Angeles area intending to proceed to northwestern Nebraska and to neighboring South Dakota communities. They traveled by automobile and started in a single old Ford car belonging to petitioner. Throughout the trip petitioner was armed with a .22 calibre pistol and before reaching Nebraska, Leon Grandsinger acquired and had a pistol of the same calibre. They also had ammunition with which to use those weapons. They proceeded generally through Las Vegas, Nevada, thence along U. S. highway 66 to Provo, Utah, and on through Rock Springs, Wyoming and Hot Springs, South Dakota, and eventually to Springview, Nebraska. Along the way at.various places that are not identified they stole, principally from standing automobiles, items of property whose kind and value are not disclosed. At some point in Wyoming they also stole an automobile and, from that point forward, used it for their motive power and to tow petitioner’s older vehicle. Though they had arrived in the general vicinity where their father lived they did not go to his home or report to him upon their whereabouts; and he first learned of their probable presence in the area only after the occurrence of the homicide out of which petitioner’s sentence later arose, and then through a radio newscast in which it was declared that the Grand-singer boys were being sought in that connection. During the night of Wednesday, April 7-8, 1954 a small store in which was maintained the United States post-office at Wewela, South Dakota was entered burglariously, and from it a considerable quantity of merchandise and a very small amount of money were stolen. Petitioner and his brother, Leon, were suspected of the burglary. On April 8, 1954, petitioner and Leon Grandsinger visited at some length at the home of one Brandenburg, a farmer on the Nebraska side of the state line, for whom petitioner had worked for a short while some months earlier, and also with two brothers named Frederickson with whom the two Grandsinger brothers made arrangements that during that evening, the Fredericksons, by the use of a piloting automobile, would direct or lead the two Grandsingers to a secluded place in the general neighborhood where, unobserved, they might do some work on their automobiles. But the Fredericksons then proceeded to make contact with William C. Freeman, the Sheriff of Cherry County, Nebraska, to lead the Grandsingers into a trap and betray them into the hands of the sheriff. On that night at about 11:30 o’clock, the Fredericksons in their automobile, with the Grandsingers following, Leon driving the automoble that was stolen in Wyoming and with it towing petitioner’s unlighted car which petitioner was guiding, drove southerly on highway 7 at a point in Cherry County, Nebraska several miles east and north of Valentine. Alerted by a prearranged signal, Freeman, the sheriff, and one Marvin Hansen, a member of the Nebraska state highway patrol, in an automobile equipped for police highway pursuit, followed the Grand-singers for a short distance and then, by warning signals, caused them to stop their cars on the west side of the roadway facing south. The officers’ vehicle was then stopped easterly from the Grandsinger cars, but so turned and with its lights in such position as to illuminate the Grandsingers and their automobiles. The sheriff then took Leon Grandsinger into custody without any noteworthy incident. But petitioner withdrew from the right side of his towed and then standing automobile and was approached from the rear of the vehicle by patrolman Hansen, and then sought to escape by running to the west. Some shots were fired and, shortly thereafter, Hansen was found lying fatally wounded by a bullet which the State of Nebraska charged, and on petitioner's trial undertook to prove, was fired from a .22 calibre weapon. The state’s position was that petitioner was the only person involved who was in possession of such a weapon, the pistol of Leon Grand-singer having been seized by the sheriff early in the encounter, and that the pistols of the sheriff and Hansen were both .38 calibre in size. In any event, petitioner escaped for the time being in the darkness and over the rough terrain westerly from the site of the automobiles and of the shooting of Hansen. Through the remainder of that night and until about 3:00 o’clock in the afternoon of Friday, April 9, 1954, petitioner remained in hiding in the rugged country in that neighborhood and along the northerly bank of the Niobrara river flowing through it. He insists that in that interval he had no rest, though he concedes that he may have obtained some fitful sleep. It is reasonably certain that such rest as he may have gotten was not unbothered. Meanwhile, prompted by the homicidal death on duty of one of its members, a large, but not precisely shown, number of the troopers and officers of the State highway patrol assembled in an effort to apprehend the petitioner. And, under the sheriff’s direction, a posse was recruited which searched the countryside for the petitioner. The exact number of the posse’s members may not be determined or declared with certainty. It appears quite clearly to have approached or reached three hundred. But it was scattered and operating over a wide area in northern Nebraska and southern South Dakota and was, therefore, spread pretty thin. Not many men were effectively gathered at one time in any single space. Most of the members of the posse were armed. Finally, at about 3:00 o’clock p. m., on April 9, 1954, petitioner observed a number of men arriving in and moving out of automobiles and searching in the area where he was and, in the correct persuasion that he was their quarry, undertook by flight to avoid capture. In the effort he plunged into the Niobrara river, by whose current he was carried down stream and entirely below the. surface of the water, until he reached the safety of a projecting log. He was then approached by, and induced to surrender to, Brandenburg, his former employer who was generally friendly to him. Immediately before, and when, Brandenburg took him into his custody there was an occasional and audible comment, among the fifteen or twenty members of the posse that were near at hand, suggesting that petitioner should be shot or otherwise killed; and the gun of one bystander was actually discharged but with no injury to anyone. Brandenburg, with little effort managed to prevent any violence towards, or demonstration against, petitioner. And he also delivered petitioner into the custody of the members of the state patrol. Petitioner was then completely drenched from his encounter with the waters of the river. He was unkempt and his hair was disarranged. The temperature was cold and chilling. His clothing was saturated with water and the lower part of one leg of his trousers was badly torn. In company with four other men, petitioner was first driven a short distance by automobile to the yard of a school house not far distant from where he was apprehended. There the sheriff entered that vehicle and seated himself in the right side of the front seat of the car which was being operated by a State patrolman. Petitioner sat between those two men. And two other men sat in the rear seat. Thus arranged, the occupants of the automobile were driven to the, court house, in which the jail is located, at Valentine, several miles distant. That car was accompanied by several other-vehicles in which other patrolmen and members of the posse rode. Before the car left the school house yard for Valentine there had been some comment in petitioner’s presence and hearing, suggesting that a crowd of people might already have assembled at Valentine and might be disposed to deal violently with petitioner. And it was partly to intercept any such development that a considerable number of men, including several state patrolmen, in other vehicles accompanied the automobile in which petitioner was removed to Valentine. On arriving at Valentine the car carrying petitioner was driven into the court house yard. When petitioner neared and reached the court house a not precisely determinable number of people, some of whom were armed, had gathered and were present in the court house grounds, including some children as well as adults. They did not in anywise constitute or resemble a mob and offered no violence to petitioner. Nevertheless he was aware from their very presence that they resented the killing of Marvin Hansen, and, suspecting petitioner of the homicide, were unfriendly to him. However