US SUPREME COURT DECISIONS

Respondent was convicted of burglary and grand larceny in an Arkansas state court and sentenced by the jury to the maximum sentence permissible under the state recidivist statute. On appeal, the Arkansas Supreme Court reversed, holding that evidence of certain prior felony convictions was inadmissible for the purpose of enhancing respondent's sentence, and revised the sentence to the permissible minimum. Respondent then brought a habeas corpus petition in Federal District Court, alleging that his sentencing after trial had been unconstitutional, and was not remedied by the Arkansas Supreme Court's revision of it. The District Court dismissed the suit for want of jurisdiction, but the Court of Appeals reversed, holding that respondent had been denied due process of law by the failure to permit him to be resentenced by a jury, and that resentencing was required because the recidivist statute had been amended since respondent's trial and, if the amendment applied to him, would now provide a lower minimum sentence.

Held: Where the claim that respondent is entitled to be resentenced by reason of the amended recidivist statute apparently has not been presented to the state courts, a federal court, in the absence of any reason to believe that state judicial remedies would now be unavailable, is required to stay its hand to give the State the initial opportunity to pass upon and correct alleged violations of federal rights. The requirement of 28 U.S.C. §§ 2254(b) and (c) that state remedies first be pursued is particularly appropriate where, as here, the federal constitutional claim arises from the alleged deprivation by state courts of rights created under state law.

Certiorari granted; 599 F.2d 842, reversed and remanded.