He petitioned the Oklahoma Court of Criminal Appeals for habeas corpus claiming he could not afford counsel and was not given enough time to prepare witnesses for his defense.

Congress authorized federal courts in 28 USC § 2254 to grant habeas review when the state process was "ineffective to protect the rights of the prisoner".

The exhaustion requirement recognized in Ex parte Hawk was codified in the 1948 amendment to § 2254: "This new section is declaratory of existing law as affirmed by the Supreme Court.

"[5][6] The dissent was concerned that "denial of certiorari would in practice attain a significance which the Court is unwilling to give it by candid adjudication".

[7][4] Brown v. Allen unambiguously stated that denial of certiorari should not be given weight by district courts considering habeas petitions.