320 U.S. 219

Ex parte ABERNATHY. Ex parte DAYTON. Ex parte HANSEN et al. Ex parte KESLING. Ex parte BURALL. Ex parte GOBIN. Ex parte DONNELLY. Ex parte MAURICE. Ex parte GOLDSMITH. Ex parte DAVIS. Ex parte HUTTO. Ex parte FRITERS. Ex parte DOZA. Ex parte HUGHES. Ex parte MILLER. Decided Oct. 18, 1943. Charles Abernathy, pro se. djQ PER CURIAM. The applications are severally denied. In these cases petitioners invoke the exercise of the jurisdiction conferred on this Court by 28 U.S.C. sections 377,
[220]
451, 28 U.S.C.A. §§ 377, 451, to issue writs of habeas corpus in aid of its appellate jurisdiction. Cf. Ex parte Peru, 318 U.S. 578, 582, 583, 63 S.Ct. 793, 796, 87 L.Ed. 1014. That jurisdiction is discretionary, 318 U.S. 584, 63 S.Ct. 797, 87 L.Ed. 1014; Bowen
v.
Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455, and this Court does not, save in exceptional circumstances, exercise it in cases where an adequate remedy may be had in a lower federal court, Ex parte Current, 314 U.S. 578, 62 S.Ct. 120, 86 L.Ed. 467; Ex parte Spaulding, 317 U.S. 593, 63 S.Ct. 69, 87 L.Ed. 486; Ex parte Hawk, 318 U.S. 746, 63 S.Ct. 979, 87 L.Ed. 1123, or, if the relief sought is from the judgment of a state court, where the petitioner has not exhausted his remedies in the state courts, Mooney v. Holohan, 294 U.S. 103, 115, 55 S.Ct. 340, 343, 79 L.Ed. 791, 98 A.L.R. 406; Ex parte Botwinski, 314 U.S. 586, 62 S.Ct. 476, 86 L.Ed. 473; Ex parte Davis, 317 U.S. 592, 63 S.Ct. 26, 87 L.Ed. 484; Id., 318 U.S. 412, 63 S.Ct. 679, 87 L.Ed. 868; Ex parte Williams, 317 U.S. 604, 63 S.Ct. 431, 87 L.Ed. 491. Refusal of the writ, without more is not an adjudication on the merits and is to be taken as without prejudice to an application to any other court for the relief sought. Application severally denied. United States v. Adams [64SCt14,320US220,88LEd4] 64 S.Ct. 14 320 U.S. 220 88 L.Ed. 4 UNITED STATES ex rel. McCANN v. ADAMS, Warden, et al.

This proceeding is a sequel to Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268, 143 A.L.R. 435. We there reversed an order of the Circuit Court of Appeals of the Second Circuit discharging the present relator from custody. 126 F.2d 774. We did so because we held that, if his waiver was the exercise of an intelligent choice made with the considered approval of the trial court, he could as a matter of law waive his right to a jury trial without being represented by counsel. After the case went back to the Circuit Court of Appeals on mandate and further steps not necessary here to recount were taken, the relator filed a petition for a writ of habeas corpus in the District Court which, with supporting affidavits, adequately raised the issue whether in fact he intelligently—with full knowledge of his rights and capacity to understand them—waived his right to the assistance of counsel and to trial by jury. That issue, as appears from our former opinion, was explicitly withdrawn from consideration on the habeas corpus proceedings previously before the Circuit Court of Appeals. 126 F.2d 774. That issue, now fairly tendered by the petition for habeas corpus below, has never been adjudicated on its merits by the lower courts. But it is no longer within the bosom of the trial court. Nor can it be disposed of on the appeal of his conviction, for the claim rests on materials dehors the trial proceedings. It is a claim which the relator should be allowed to establish, if he can. We cannot say that, in the light of the supporting affidavits, the petition for a writ of habeas corpus was palpably unmeritorious, and should have been dismissed without more. We are compelled therefore to accede to the Government's consent to a reversal of the order of the Circuit Court of Appeals affirming the order denying the application for the writ of habeas corpus.