WOODBURY, Circuit Judge.
This is an appeal on certificate of probable cause, Title 28 U.S.C.A. § 2253, from a final order of the United States District Court for the District of Massachusetts dismissing an application for a writ of [132]*132habeas corpus without prejudice and denying the writ.
The petitioner and one Ralph P. Dupont were indicted and tried together on pleas of not guilty in the Massachusetts Superior Court for the County of Middlesex for a homicide committed in the course of an attempted armed robbery. Both were found guilty by the jury of murder in the second degree and both were sentenced to life imprisonment in conformity with Massachusetts law. Neither appealed and they were forthwith committed. At the trial, which took place in November, 1947, the petitioner was represented by counsel appointed by the court whose skill and competence is unquestioned.
Subsequently in June, and again in September, 1948, the. petitioner acting pro se, filed separate motions for a new trial on the ground of after discovered evidence. These motions were heard by the judge who presided at the trial and both were denied without findings of fact, conclusions of law, or memorandum opinion. The petitioner appealed from the denial of both motions to the Supreme Judicial Court of Massachusetts and asked that Court to appoint counsel to assist him therein. He withdrew his request for counsel, however, when the counsel who had represented him at the trial volunteered to aid the petitioner in prosecuting his appeal, and in due course on July 21, 1949, the Supreme Judicial Court handed down its opinion affirming the Superior Court. Commonwealth v. Coggins, 324 Mass. 552, 87 N.E. 2d 200. The Supreme Court of the United States denied certiorari. 338 U.S. 881, 70 S.Ct. 152.
Thereupon the petitioner, again acting pro se, applied to the court below for a writ of habeas corpus alleging that his “trial, conviction, and sentence, individually or collectively, was rendered * * * in contravention of (his) Federal Constitutional Rights to ‘Due Process of Law’ as related and guaranteed * * * by virtue of the Fourteenth Amendment to the Constitution of the United States.” As already appears the District Court dismissed the application and denied the writ, and obtaining a certificate of probable cause from that court, the petitioner comes here on appeal.
On this appeal the petitioner filed a brief pro se and also asked us for a writ of habeas corpus ad testificandum to permit him to appear and argue in person. We denied his application for the writ, not because we doubted our power to issue it, but because in the exercise of our discretion we felt that oral argument by the petitioner himself was not reasonably necessary to our adequate understanding of the case. Price v. Johnston, 334 U.S. 266, 278-286, 68 S.Ct. 1049, 92 L.Ed. 1356. The petitioner also asked us to appoint counsel to aid him on this appeal and we did so. But the petitioner objected to representation by the counsel whom we had appointed asserting his incompetence in matters of federal constitutional law.- We well knew that the petitioner’s objection was utterly unfounded, and we did not deem it incumbent upon us to appoint some other attorney to represent the petitioner. Nevertheless, in view of the petitioner’s objection, we changed the designation of the counsel we had appointed from counsel for the petitioner to amicus curiae so that we might have the benefit of his skill and learning at oral argument.
The petitioner’s basic contention is that the prosecuting authorities knowingly used perjured testimony in order to bring about his conviction, and that this action on their part under the rule enunciated in Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, constituted a denial of that due process of law to which he is entitled under the Fourteenth Amendment of the Constitution of the United States. Undoubtedly if the petitioner’s premise is sound, and his conviction did in fact rest upon perjured testimony knowingly used by the prosecuting authorities for that purpose, he has indeed been deprived of due. process of law as guaranteed to him by the Fourteenth Amendment. But he has once tried to establish the factual basis upon which his constitutional contention, rests in the courts of the Commonwealth of Massachusetts, and failed. This does not mean, however, that as a neces[133]*133sary consequence he is forever barred from again trying to- establish the factual basis for his contention in the court below, for it was established in Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989, that the doctrine of res judicata is not applicable in habeas corpus cases. On the other hand it does not follow from the inapplicability of the doctrine of res judicata that in spite of his unsuccessful attempt in the Massachusetts courts he is entitled as of legal right, or without more appearing, even in judicial discretion, to try his basic factual issue over again in the court below. While state courts have full discretionary power either to hear again or summarily to dispose of repeated applications for habeas corpus grounded on the same facts filed by prisoners in state custody, and federal courts have like powers with respect to prisoners in federal custody, different considerations apply in cases like the present. Due respect for the delicacies of the relationship between the United States and its courts, and the states and theirs, under a federal system such as ours (see Darr v. Burford, 339 U.S. 200, 205 et seq., 70 S.Ct. 587, 94 L.Ed. 761, and cases cited) requires that the federal courts withhold their relief in state custody cases until it is made to appear that the state has not afforded a constitutionally adequate opportunity to prove the factual basis for a constitutional contention such as this unless “exceptional circumstances of peculiar urgency are shown to exist.” United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1, 3, 70 L.Ed. 138; Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572. In my view the area of judicial discretion in cases like the present is limited to the evaluation of the urgency of any exceptional circumstances which may be present in a particular case. Thus, finding no “exceptional circumstances of peculiar urgency” whatever in the case at bar, the primary question for us as I see it is whether under Massachusetts law Coggins has been afforded an opportunity consonant with the due process requirements of the Fourteenth Amendment to prove that perjured testimony was in fact knowingly used by the prosecuting officials to obtain his conviction. For it is only after this question has been answered in the negative that the court below is open to him for a hearing on the merits.
At this point, however, I am confronted with two perplexing problems, arising from certain language used by the Supreme Court in recent cases.
The Supreme Judicial Court of Massachusetts did not rest its decision in Commonwealth v. Coggins, 324 Mass. 552, 87 N.E.2d 200, upon some nonfederal ground. On the contrary, taking it for granted that Massachusetts law provided Coggins with an adequate remedy by motion for a new trial, it held that Massachusetts practice and procedure had been fully complied with in the disposition of his motions for new-trial, and that by that practice and procedure Coggins had not been deprived of any right secured to him by the due process provision of the Fourteenth Amendment. Thus the highest court of the Commonwealth never reached Coggins’ basic federal constitutional question for the reason that in its view Coggins, although afforded due process of law, had failed to establish any foundation in fact for it to rest upon. That court did, however, consider a federal question, i. <?., the adequacy under the Fourteenth Amendment of the local system for administering the criminal law, and hence the Supreme Court of the United States had jurisdiction to grant Coggins’ petition for a writ of certiorari directed to the Supreme Judicial Court of Massachusetts. The Supreme Court’s denial of Coggins’ petition for the writ under these circumstances presents the question of what weight if any, we should give that denial.
Raising this question does not indicate that I am unaware of the many occasions upon which the Supreme Court has emphasized that its denial of certiorari is not to be taken as a ruling upon the merits, or, indeed, even as having any bearing whatsoever upon the merits. I pose the question for the reason that the Supreme Court in House v. Mayo, 324 U.S. 42, 48, 65 S.Ct. 517, 521, 89 L.Ed. 739, while reaffirming the proposition that its denial of certiorari “imports no expression of opinion upon the merits of a case”, nevertheless, closely paraphrasing Ex parte Hawk, [134]*134321 U.S. 114, 118,1 64 S.Ct. 448, 88 L.Ed. 572, (which it cites) goes on to say: “It is true that where a state court has considered and adjudicated the merits of a petitioner’s contentions, and this Court has either reviewed or declined to review the state court’s decision, a federal court will not ordinarily reexamine upon writ of habeas corpus the questions thus adjudicated. * * * But that rule is inapplicable where, as here, the basis of the state court decision is that the particular remedy, sought is not one allowed by state law, for in such a case this Court lacks jurisdiction to review the decision.”
Moreover, the Court of Appeals for the Second Circuit in Schechtman v. Foster, 1949, 172 F.2d 339, 342, certiorari denied, Schectman v. Foster, 339 U.S. 924, 70 S.Ct. 613, interpreted the foregoing language as requiring it to give effect on the merits to a denial of certiorari by the Supreme Court in prior state proceedings. And the subsequent opinion of the court in Darr v. Burford, 339 U.S. 200, 214-216, 70 S.Ct. 587, 595-597, 94 L.Ed. 761, written by Mr. Justice Reed and concurred in by the Chief Justice and Mr. Justice Minton, handed down over a year after the Schechtman case, mentions but avoids decision of the question of the significance, if any, of a denial of certiorari to the highest state court in cases like this. See Mr. Justice Frankfurter’s dissenting opinion in Darr v. Burford, supra, 339 U.S. 224, 70 S.Ct. 600.
The other perplexing question confronting me at the threshold of this case is whether it falls within our province to disagree with the Supreme Judicial Court’s decision of the federal question it considered on Coggins’ appeal should we feel disposed to do so. I pose this question because in the opinion of the court in Darr v. Burford, supra, 339 U.S. 216, 70 S.Ct. 596, in which on this point Mr. Justice Burton and Mr. Justice Clark agreed, it is said: “It is this Court which ordinarily should reverse state court judgments concerning local criminal administration.” And in the sstme case on the following page it is said: “It is this Court’s conviction that orderly federal procedure under our dual system of government demands that the state’s highest courts should ordinarily be subject to reversal only by this Court and that a state’s system for the administration of justice should be condemned as constitutionally inadequate only by this Court.”
If the language quoted above is to be taken literally and given general application, then it would appear that even though a prior denial of certiorari to the highest state court is of no moment, it is not our function, except in extraordinary cases, to disagree with that court’s determination that the local system for the administration of justice squares with federal constitutional requirements. Hence, if it is not for us to disagree with the highest state court, it would seem that the function of the inferior federal courts in these cases would be only to expedite the applicant for habeas corpus along his secondary road through the federal courts to a second petition to the Supreme Court for certiorari to review the federal question which it has once declined to consider. , And, on the other hand, if the denial of certiorari to the highest state court is to be given any weight at all by the inferior federal courts in cases like the present, it would seem to follow that we ought also to expedite the applicant on his way for, as pointed out by Judge Learned Hand- in the Schechtman case, supra, 172 F.2d 343, “unless we are altogether to disregard the action of the court of last resort in the very case itself, the denial ought to be conclusive.” However, until clearer sailing directions are forthcoming I do not care to dispose of this case summarily, or perhaps even, perfunctorily, on the basis of either the proposition that in these cases [135]*135denial of certiorari to the highest state court is conclusive upon us on the merits, or else that it is not our function as an inferior federal court to disagree with the Supreme Judicial Court of Massachusetts as to the constitutional adequacy of the system for administering criminal justice in that Commonwealth even if we should feel so inclined. I turn, therefore, to the petitioner’s contention.
Coggins filed both of his motions for new trial pro se. But at the hearings on those motions he was represented by the counsel who had represented him at the trial. He was also present at both hearings personally pursuant to writs of habeas corpus ad testificandum issued on his application by the justice of the Massachusetts Superior Court before whom the motions were heard, who as already appears was also the justice who had presided at the trial.
His first motion was supported by the affidavit of a witness for the Commonwealth at the trial who said in her affidavit that, motivated by jealousy, (she had been Coggins’ fiancée but he had broken their engagement) she had then testified falsely with respect to statements indicative of guilt made to her by Coggins while he was confined in jail awaiting trial. This affidavit was corroborated by those of three others to the effect that the first affiant had admitted to them that she had testified falsely' at Coggins’ trial, and by that of still another to the effect that he was present when the first affiant visited Coggins in jail and nothing was then said by the latter tending to indicate his guilt. In addition, the affidavits of two persons were introduced tending to establish an alibi, and also those of two more tending to show that two police officers who had been subpoenaed to testify at the trial would have said had they been called, which they were not, that the- Commonwealth’s star identification witness at first had had great difficulty in identifying Coggins. Moreover, affidavits of Coggins’ codefendant, and of the latter’s brother, Alfred J. Dupont, Jr., were also introduced; the former to show the falsity of the testimony of a police officer with respect to incriminating statements made by Coggins in jail, and the latter to show that the Commonwealth’s principal witness on the issue of identity had originally identified the affiant as an assailant, but that in spite of this identification he had never been formally charged with participation in the crime.
All of these affidavits were presented to the justice at the hearing, who said he would consider them, and he also heard oral testimony by some of the affiants who were present in court.
Coggins’ second motion for new trial was supported by another affidavit of the affiant who previously had sworn that she had testified falsely at the trial in which she reiterated her perjury, and also added, what she had significantly omitted from her first affidavit, that the falsity of her testimony was not only known to the prosecuting attorney, but also that he had encouraged her to give it. In addition to this affidavit Coggins requested the court to issue compulsory process to require the attendance at the hearing on this motion of the two Duponts, of one of the affiants who had corroborated the first affiant above, and also of one of the jurors who Coggins stated would say that he had given weight to the first affiant’s testimony at the trial in arriving at his verdict. The court granted Coggins’ request for process as to the juror and the corroborating affiant, but not as to the Duponts, and also granted an application made by Coggins for a writ of habeas corpus ad testificandum to enable him to attend the hearing, which was set for December 7. Thereupon Coggins applied for writs -of habeas corpus ad testificandum to produce both Ralph P. Dupont, and .also the brother Alfred J. Dupont, Jr., (who was also confined in the Massachusetts penitentiary) at the hearing. The court refused these writs and Coggins was so informed by letter from the clerk in which it is stated that the court would, however, consider the affidavits of the Duponts already on file. Coggins then wrote to the court that affidavits from the two Duponts were “practically out of the, question” and that he would like to have them personally in court ■at the hearing “because they hold testimony and evidence which is one of the assignments of my motion” which “has nev[136]*136'er been discussed during my trial or hearing for a new trial.” This request was not acted upon, and at the' outset of the hearing on December 7, at which Coggins, his counsel, and the witnesses who had been summoned were present, Coggins repeated his request for the production of the two Duponts and asked for a recess to “have these men brought before this Court, as they are my first witnesses and are very important witnesses.”
The court then said:
"Coggins, it was brought to your attention by the Court, whether your counsel brought it to your attention or not, I have no way of knowing, but I rather suppose he did, knowing him to be a very able attorney, and that he, as you have already said, did everything that possibly could be done in your behalf, but certainly I brought it to your attention at the hearing on June 25, 1948, on your motion for new trial at that time, that by Rule 46 of the Superior Court Rules, and I quote the rule:
. “ ‘The Court need not hear any motion or opposition thereto grounded on facts unless the facts are verified or are apparent upon the record and files or are agreed and stated in writing signed by the attorneys for the parties interested.’
“I say I brought that to your attention June 25, if you did not already know it, but in spite of the rule, as I recall it now, on June 25, 1948, I did take some testimony at your request, and at your request at this hearing I have caused summons to be issued for two witnesses at your request. It isn’t the practice to take oral testimony in such situations as this and the time has come when I must make it clear to you that I do not propose to take any oral testimony; that you must comply with the rule of the court in respect to this matter, and you can understand that I do not propose, because I have already indicated to you, to bring either or both of the Duponts here to testify orally, I repeat what had already been said to you by the Clerk in his letter to you, that I am willing to consider the affidavits already on file from both of these individuals.”
Coggins replied that as a.prisoner he was unable to “get a notary public.to notarize such documents” as affidavits and the court replied: “That is a very interesting comment, sir, but it so happens on June 22nd, 1948, you filed in your behalf many .affidavits, the number of them I am not attempting. to state, and since then you have filed affidavits. Anything further, Cog-gins?”
Coggins then said that he was:
“ * * * trying to explain they will notarize affidavits but they will not notarize affidavits that are going to hurt somebody or are incriminating themselves, and a notary public there, Mr. Joseph Tambeau, Chief Clerk of the prison, definitely refuses to notarize any such paper as what his testimony shall be, and I am a prisoner and. I must obey the rules. If he says he shall not notarize it, he will not, and there is nothing I can do about it.”
******
“That is why, sir, I have requested those witnesses. They have very important testimony.”
After some further colloquy the court terminated the discussion by saying: “I have already told you, sir, I am not going to bring the Duponts to court. What do you want to say about the motion, anything?”
The hearing' then proceeded with oral testimony from the juror, and from the other witness who had been summoned, who said that the affiant who had sworn to her perjury at the trial had told the witness that she had been questioned by . the police about her second affidavit, and told by them “that if she didn’t take back what she had stated in her affidavit, they would send her to prison for life for perjury.”
Coggins himself was then allowed to take the stand to tell the court that if Ralph P. Dupont were present he would testify that he was an eye witness' to the homicide for which Coggins had been convicted, that he knew the persons who had participated therein, and that Coggins was not one of them, and that the brother, Alfred J. Du[137]*137pont, Jr., if present, would testify “that it was he who had suggested to Ralph Dupont that the truth be told to prove the innocence of the petitioner.”
In opposition to the motion the Commonwealth presented a police officer who testified that he had questioned thé affiant who swofe that she had perjured herself, and had shown her the statutory penalty for perjury, and that “while he questioned her as to the truth of her affidavits, she orally admitted that her testimony on the trial was true.”
After considering matters with respect to the affidavit and testimony of the juror, and hearing arguments of counsel and of Coggins personally, the court took the motion under advisement and the next day denied it without opinion.
Coggins then succeeded in obtaining an affidavit from Ralph P. Dupont in which the affiant said that he was an eye witness to the homicide for which Coggins had been convicted, that he knew the persons who had participated therein, and that Coggins “was not present at the time the crime was committed.” Coggins sent this affidavit to the clerk of the Massachusetts Superior Court with a motion to vacate judgment which the clerk refused to accept for filing on the ground of lack of statutory provision therefor. Coggins thereupon took his appeal from the denial of both of his motions for new trial to the Supreme Judicial Court of Massachusetts.
The foregoing facts are taken from the voluminous application for habeas corpus filed by Coggins in the court below. Since that court denied the application without requiring the respondent to answer and without a hearing, we assume them to be true. House v. Mayo, 324 U.S. 42, 45, 65 S.Ct. 517, 89 L.Ed. 739. Taking them as true, however, Coggins has not made out a case for the issuance of a writ of habeas corpus by the District Court. The reason for this is that, absent “exceptional circumstances of peculiar urgency”, a federal court ought not to entertain applications for habeas corpus by persons in state custody unless otherwise the applicant would be without a remedy which is constitution-ally adequate to redress the wrong complained of. And here it seems to me clear, first, that Massachusetts law afforded Cog-gins a remedy by motion for a new trial, and second, that the remedy afforded was constitutionally adequate in that under the law of the Commonwealth Coggins in the pursuit of the remedy afforded had a full and fair opportunity to prove the factual basis for the federal constitutional question presented within the requirements of the due process clause of the Fourteenth Amendment. See Ex parte Hawk, 321 U.S. 114, 118, 64 S.Ct. 448, 88 L.Ed. 572, cited with approval by this court in Buchanan v. O’Brien, 1 Cir., 181 F.2d 601, 603, in which, after stating that a federal court will not ordinarily re-examine on habeas corpus the merits of contentions once considered and adjudicated by the state courts, and certiorari has either been granted or denied, the court goes on to say, (omitting citations) : “But where resort to state court remedies has failed to afford a full and fair adjudication of the federal contentions raised, either because the state affords no remedy, * * * or because in the particular case the remedy afforded by state law proves in practice unavailable or seriously inadequate, * * * a federal court should entertain his petition for habeas corpus, else he would be remediless.”
It is true that the Massachusetts trial justice decided Coggins’ motions without opinion so that we are in the dark as to his reasons for that action. Hence, although we know that the highest court of the Commonwealth found it unnecessary to consider Coggins’ basic constitutional contention, we do not know whether or not the trial justice also found it unnecessary to do so. It may be that the trial justice believed Coggins’ evidence, but, in ignorance of the rule of Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, failed to appreciate that the deliberate use of perjured testimony required vacation of the conviction. On the other hand it is equally probable that the trial justice, having presided at the trial and therefore having seen the affiant who swore that she had then perjured herself, and believing the police officer who testified for the Commonwealth [138]*138at the hearing on the second motion for new trial, found Coggins’ evidence that perjured testimony was knowingly used to obtain his conviction wholly unworthy of belief, and thus did not reach the constitutional question at all.
The first assumption, i. e. that the trial justice believed Coggins’ evidence but made, an error of federal constitutional law, is not open to us for two reasons. In the first place an applicant for habeas corpus to make out a case has the burden of alleging and proving primary facts, not inferences, that show, notwithstanding the presumption of constitutional regularity in state court proceedings that he has been in fact denied due process of law. Schechtman v. Foster, 2 Cir., 172 F.2d 339, 342; Darr v. Burford, 339 U.S. 200, 218, 70 S.Ct. 587, 94 L.Ed. 761, and cases cited. In the second place the. assumption that the trial justice was unaware of the well settled rule that a conviction obtained by the deliberate use of perjured testimony deprived the accused of due process of law would be a rather violent one in view of the clear pronouncement several years ago in Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, later reaffirmed in Pyle v. Kansas, 317 U.S. 213, 216, 63 S.Ct. 177, 87 L.Ed. 214, and White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348. Moreover, it has long been the rule that we are not at liberty “to presume that the decision of the state court would be otherwise than is required by the fundamental law of the land, or that it would disregard the settled principles of constitutional law announced by this court, upon which is clearly conferred the power to decide ultimately ' and finally all cases arising under the constitution and laws of the United States.” Ex parte Royall, 117 U.S. 241, 252, 6 S.Ct. 734, 740, 29 L.Ed. 868, cited with approval in Darr v. Burford, 339 U.S. 200, 205, 70 S.Ct. 587, 94 L.Ed. 761. See also Bute v. Illinois, 333 U.S. 640, 671-672, 68 S.Ct. 763, 92 L.Ed. 986.
I think we ought therefore to assume, in the silence of the trial justice, that he disbelieved Coggins’ evidence, and hence found no occasion to consider the validity under the due process clause of the Fourteenth Amendment of a conviction obtained by the conscious use of perjured testimony. In short, I agree with the Court of Appeals for the Second Circuit that a prisoner in state custody makes out a case in the District (Court for federal habeas corpus in cases like this only in the event that he can affirmatively show that the state court denying his application either failed to give any consideration at all to his evidence, or else failed to understand that as a matter of federal constitutional law the deliberate use of perjured testimony vacates a conviction based thereon. Schechtman v. Foster, 172 F.2d 339.
Moreover it is also true that under Massachusetts law a party moving for a new trial in a criminal case does not have an absolute legal right to present the testimony of witnesses in support of his motion, but may under rule of court in the discretion of the trial justice be relegated to the use of affidavits only to support his factual contentions. This rule of criminal procedure does not in my opinion run afoul of the Fourteenth Amendment for it does not deprive one who has been convicted of a crime of any right which can properly be classified as fundamental, such as the right to notice of the criminal charge and the right to' an adequate opportunity to be heard in defense. The rule merely provides an expeditious method for handling motions grounded on facts in that it authorizes the trial court in its discretion to require proof by affidavit rather than by the time consuming method of oral testimony. It is merely a rule of administrative convenience which does not offend any fundamental principle of justice of which I am aware, and it is well settled that “The commonwealth of Massachusetts is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness, unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked' as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674. In brief the rule impresses me as a practical one which I can by no means say “is so flagrantly unjust that the Con[139]*139stitution of the United States steps in to forbid it.” Id., 291 U.S. 115, 54 S.Ct. 336.
It might, however, still be objected that invoking the rule with respect to prisoners whose affidavits are unobtainable serves to prevent the production of any evidence at all, and hence deprives a moving party of due process of law. In the first place it is doubtful if prison rules in fact prevented Coggins from obtaining affidavits from the Duponts. He obtained affidavits from them in support of his first motion, which the court said it would consider on his second one, and furthermore he obtained an affidavit from one of them the day following the second hearing. It may well be, and perhaps the trial justice well knew, that prison rules did not prevent prisoners from executing affidavits. In the second place the trial court permitted, and presumably considered, a statement by Coggins at the second hearing with respect to what the substance of the Duponts’ testimony would be if called to the stand. Thus it appears that Coggins in fact succeeded in placing all his evidence before the court on his second motion for new trial despite the rule.
One more matter calls for brief mention. In the court below Coggins for the first time asserted that he had been denied due process of law because at the trial the court admitted the testimony of a police officer secreted in a cell between him and his codefendant who used “disguise, misrepresentation and psychological tactics” to prevent them from sleeping and in this way elicited from them “information and statements”, presumably of a damaging nature, as to which he was allowed by testify. The District Court refused to consider this contention for the reason that Coggins had never attempted to raise it in the Massachusetts courts and hence had not exhausted his state remedies. This action on the part of the court below is correct. Darr v. Burford, 339 U.S. 200, 203, 70 S.Ct. 587, 94 L.Ed. 761.
The order of the District Court is affirmed.