Castle, Chief Judge, and Swygert and Kerner, Circuit Judges.
Petitioner-appellant, Neil A. Woodington, seeks a Writ of Habeas Corpus, having been found guilty by a jury, in the Circuit Court of Wisconsin, of a violation of the Wisconsin Securities Law, Section 189.19(2) (d). During and after the trial, numerous motions, petitions and writs were sought in the Circuit Court, Wisconsin Supreme Court and a petition for a writ of certiorari was sought in the United States Supreme Court. All of these motions were denied.
An appeal was filed in the Wisconsin Supreme Court and a full hearing on the merits was had. The judgment of the trial court was unanimously affirmed. State v. Woodington, 31 Wis.2d 151, 142 N.W.2d 810 (1966), rehearing denied, 31 Wis. 2d 151, 143 N.W.2d 753, appeal dismissed and certiorari denied, 386 U.S. 9, 87 S. Ct. 854, 17 L. Ed. 2d 699 (1967).
A petition for a Writ of Habeas Corpus was filed in the District Court for the Western District of Wisconsin and was denied. It was followed by a motion for a Certificate of Probable Cause in November, 1967, which was granted and it is upon this certificate that the matter is before this court.
Each of the grounds urged here for reversing the judgment order of the district court were identically urged and argued in full on their merits in the appeal before the Wisconsin Supreme Court. The unanimous opinion of that court carefully considered and correctly rejected each of the grounds alleged.
Where a state court has considered the merits of an appeal and the United States Supreme Court has declined to review the court's decision by way of certiorari, a federal court will not ordinarily reexamine the questions thus adjudicated upon a Writ of Habeas Corpus. Ex parte Hawk, 321 U.S. 114, 118, 64 S. Ct. 448, 88 L. Ed. 572 (1943), Brown v. Allen, 344 U.S. 443, 465, 73 S. Ct. 397, 411, 97 L. Ed. 469 (1952) rehearing denied 345 U.S. 946, 73 S. Ct. 827, 97 L. Ed. 1370 (1953):
As the state and federal courts have the same responsibilities to protect persons from violations of their constitutional rights, we conclude that a federal district court may decline, without a rehearing of the facts, to award a writ of habeas corpus to a state prisoner where the legality of such detention has been determined, on the facts presented, by the highest state court with jurisdiction, whether through affirmance of the judgment on appeal or denial of post-conviction remedies.
In Speller v. Allen, 192 F.2d 477 (4th Cir. 1951), affirmed 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469, rehearing denied 345 U.S. 946, 73 S. Ct. 827, 97 L. Ed. 1370, the Court of Appeals, at page 478, quotes its language stated previously in Stonebreaker v. Smyth, 163 F.2d 498 (4th Cir. 1947) which is most applicable to the case before the court:
We are confronted at the outset with the fact that the case presented by petitioner is precisely the same as that in which relief was denied by the Virginia courts and in which certiorari was denied by the Supreme Court of the United States. The rights of petitioner were fully presented in that case and the Virginia courts had full power to grant the relief asked, had they thought petitioner entitled to it. The facts were fully before the Supreme Court of the United States on certiorari; and proper respect for that court compels the conclusion that if it had thought that the record showed a denial of petitioner's constitutional rights, certiorari would have been granted and petitioner would have been afforded relief. While action of the Virginia courts and the denial of certiorari by the Supreme Court were not binding on the principle of res judicata, they were matters entitled to respectful consideration by the court below; and in the absence of some most unusual situation, they were sufficient reason for that court to deny a further writ of habeas corpus. It would be intolerable that a federal district court should release a prisoner on habeas corpus after the state courts have refused him relief in precisely the same case on a similar writ and the United States Supreme Court has refused to review their action on certiorari. This would be, in effect, to permit a federal district court to review the Supreme Court of the United States as well as the highest court of the state.
Cases also applicable are United States ex rel. Lorenzo v. Pennsylvania, 108 F. Supp. 581 (D.Pa.1951), affirmed per curiam, 3 Cir., 192 F.2d 576; United States ex rel. Gawron v. Ragen, 211 F.2d 902 (7th Cir. 1954); Carpenter v. Sain, 263 F.2d 330 (7th Cir. 1958).
While binding weight need not be attached to the state court's determination, the federal court may accept such determination in the absence of a vital flaw. Fay v. Noia, 372 U.S. 391, 422, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). However, before the determination may be accepted, the federal courts must review the state proceedings (as done in Speller) in order to ascertain that all federal standards have been met.
The nature of this review was spelled out in Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), which was decided contemporaneously with Fay v. Noia, supra. The court held, 372 U.S. at 312-313, 83 S. Ct. at 757:
Standards which were subsequently enacted by Congress as an amendment to 28 U.S.C. § 2254, the pertinent portion of which ...