
    No. 111
    WONG SUN v. FLUCKEY, INSPECTOR
    U. S. District Court, N. D. O.
    Oct. 6, 1922.
    No. 11569
    Full opinion see 283 Fed. 989
    HABEAS CORPUS — (1) Res judicata — (2) Issues that might have been tried — (3) Appeal and error effect — (4) Permission first obtained.
    Attorneys — William J. Dawley, Cleveland, for petitioner; B. W. Henderson, Asst. U. S. Atty., of Cleveland, for defendant.
   Epitomized Opionion

WESTENHAVER, D. J.

Wong Sun was arrested in 1915, charged with being in this country unlawfully. A warrant of deportation issued, he was discharged on this; rearrested in October, 1917; after a prolonged hearing, the charges being- sustained, he had applied for release by habeas corpus. The writ being denied he appealed to the U. S. Circuit Court of Appeals, which affirmed the lower court. He brought this application making a second attempt, claiming the right to bring repeated applications on the same state of facts; and that the court examined only the one question; that of his right to a judicial hearing in addition to an executive hearing, which question was decided against the applicant. The immigration authorities contended that the case was res judicata as to all issues that could have been raised.

Held:

1. A former judgment on habeas corpus application is conclusive as to all questions decided and which could have been decided.

2. That the reason for the common law rule, in proceeding in criminal case, which allowed repeated applications for the writ no longer exist where there is right of review.

3. Where the law allows review by writ of error or appeal, and the case is affirmed on review, the doctrine of res judicata applies, and the lower court cannot entertain a new application on the same set of facts without permission of the reviewing court.  