In RE WHITE v. Rhay

399 P.2d 522, 65 Wash. 2d 711, 1965 Wash. LEXIS 766

• Court: Washington Supreme Court
• Decided: February 19, 1965
• Docket: 37866
• Status: Published

Opinions

Donworth, J.

The history of petitioner’s resort to his state remedies in regard to his conviction on two counts of murder is exhaustively and accurately recorded in Judge Hale’s separate opinion in this proceeding. We have no disagreement with the factual statements contained therein.

However, a majority of the court is of the opinion that, in view of the unusual circumstances (described below) under which this petition for habeas corpus comes before us, this court presently has no jurisdiction of the subject matter of this proceeding.

We are also of the opinion that, assuming arguendo that this court does have such jurisdiction, it should decline to exercise it because it would be merely rendering an advisory opinion.

I.

Briefly reviewing the procedure in the present case subsequent to our denial of the petitioner’s petition for rehearing on March 13,1963 (with respect to this court’s affirmance of his conviction in State v. White, 60 Wn. (2d) 551, 374 P. (2d) 942 (1962)), the petitioner:

(1) Petitioned the United States Supreme Court for a writ of certiorari to review our affirmance of his conviction. His petition was denied October 21, 1963, in White v. Washington, 375 U. S. 883, 11 L. Ed. (2d) 113, 84 S. Ct. 154;

(2) Petitioned this court for a writ of habeas corpus which, after a hearing en banc, was denied on March 19, 1964, in In re White v. Rhay, 64 Wn. (2d) 15, 390 P. (2d) 535;

(3) On March 25, 1964, petitioned the United States District Court for the Eastern District of Washington, Southern Division, for a writ of habeas corpus, pursuant to 28 U.S.C.A. § 2241, et seq., in which he challenged the validity of the judgment and sentence which had been affirmed by this court in State v. White, supra. The respondent named in the petition was the Superintendent of the Washington State Penitentiary who held the petitioner in his custody. An order to show cause, directed to respondent in the petition, was issued on the same date, March 25, 1964. He appeared in the proceeding through an assistant attorney general and moved to dismiss the petition on the ground that the petitioner had failed to exhaust his state remedies. Of course, all the previously mentioned state proceedings had ended, and no state proceeding was currently pending or in progress. This motion was heard by the federal district court on July 31,1964.

On August 12, 1964, the United States District Court entered an order reading, in part:

“. . . The court having heard the arguments in support of the respondent’s motion to dismiss for failure to exhaust state remedies pursuant to 28 USC 2254, and the arguments of the petitioner in opposition thereto; and having read and considered the memoranda of authorities submitted by the respective parties and having reviewed the files and records herein; and the petitioner and the respondent, by and through their respective attorneys, having agreed that the petitioner be granted the opportunity to make application for a writ of habeas corpus to the Supreme Court of the State of Washington setting forth such issues therein as are challenged in this cause by the respondent upon the grounds of failure to exhaust state remedies pursuant to 28 USC 2254, as the petitioner shall deem to be appropriate, to be filed in the Supreme Court of the State of Washington not later than August 17, 1964; now, therefore,

“It Is Hereby Ordered, Adjudged and Decreed that all further proceedings in this cause be held in abeyance, subject to the filing by the petitioner, Don Anthony White, not later than August 17, 1964 of an application for a writ of habeas corpus in the Supreme Court of the State of Washington and pending the final disposition of the issues therein by the Supreme Court of the State of Washington and subject to the further order of this court.” (Italics ours.)

(The order also stayed the execution of the sentence imposed by the Superior Court for King County until further order of the United States District Court.)

The petitioner then filed a new petition for a writ of habeas corpus in this state supreme court, alleging therein substantially the same matters as were alleged in his petition filed in the district court on March 25, 1964. This petition was heard en banc by this court on October 9, 1964.

Our reasons for stating that this court has no jurisdiction of the subject matter of this proceeding are based principally upon 28 U.S.C.A. § 2243, which directs the manner in which the federal district court is to entertain a petition for a writ of habeas corpus, and 28 U.S.C.A. § 2254, which directs that, in order to entertain the petition in the manner provided for in § 2243, the federal district court shall first decide whether the petitioner has exhausted his state remedies. The requirements of these two statutory sections are discussed in two recent decisions of the United States Supreme Court, interpreting the powers of the federal district court in habeas corpus proceedings under 28 U.S.C.A. § 2241, et seq., with respect to persons convicted of felonies in state courts. They are Fay v. Noia, 372 U. S. 391, 9 L. Ed. (2d) 837, 83 S. Ct. 822 (1963); Townsend v. Sain, 372 U. S. 293, 9 L. Ed. (2d) 770, 83 S. Ct. 745 (1963).

In Noia, the petitioner had failed to appeal to the highest court in his state from a conviction of murder. His two codefendants had appealed and their convictions were affirmed but they were subsequently freed through federal habeas corpus proceedings because it was found that their confessions had been coerced, and hence their admission in evidence violated their federal constitutional rights.

Noia, in a federal habeas corpus proceeding, was denied relief by the district court because, having failed to appeal his conviction to the state appellate court, he had not exhausted his state remedies under 28 U.S.C.A. § 2254, which provides:

“An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State ...”

On appeal, the federal court of appeals reversed the district court’s order and granted him the relief sought. The United State Supreme Court granted certiorari, and, after an exhaustive review of the history of the writ of habeas corpus in England and in the United States, affirmed the court of appeals.

The majority opinion in Noia is so long that extensive quotation is impractical. We, therefore, will attempt .to state in substance the pertinent parts of the decision which seem to us to delineate the powers and duties of federal district courts in passing upon petitions for habeas corpus filed by state prisoners.

(1) The question of whether a state prisoner has exhausted the remedies available to him in the courts of the state is to be determined by the federal district court. The powers of the federal courts in habeas corpus proceedings are based upon the supremacy clause of the United States Constitution and the Act of 1867, as amended (28 U.S.C.A. § 2241, et seq.).

In Noia, it was said, at page 398:

“ . . . (1) Federal courts have power under the federal habeas statute to grant relief despite the applicant’s failure to have pursued a state remedy not available to him at the time he applies; the doctrine under which state procedural defaults are held to constitute an adequate and independent state law ground barring direct Supreme Court review is not to be extended to limit the power granted the federal courts under the federal habeas statute. (2) Noia’s failure to appeal was not a failure to exhaust ‘the remedies available in the courts of the State’ as required by § 2254; that requirement refers only to a failure to exhaust state remedies still open to the applicant at the time he files his application for habeas corpus in the federal court. . . . ”

(2) Once the federal district court assumes jurisdiction, the jurisdiction is exclusive, under 28 U.S.C.A. § 2243, which reads:

“A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto. . . . [Then follow paragraphs relevant to the appropriate subject of the order to show cause, the return, and the hearing.]

“The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.” (Italics ours.)

The statute clearly provides only two alternatives. Either the federal district court shall take jurisdiction of the subject matter and hold its hearings so as to try the matter, or it shall dismiss the matter. Nowhere in the statute is there a provision that the federal district court can hold jurisdiction of the subject matter while the parties return any questions raised by the petition to the state supreme court by stipulation of the parties. The statute does not provide for any form of remand of questions to the state supreme court, directly or indirectly.

(3) In the hearing that is required under 28 U.S.C.A. § 2243, the federal district court has the power to take testimony and try the facts anew in order to decide whether a state prisoner has been deprived of a federal constitutional right. The last paragraph of § 2243, as emphasized above, shows this.

In Noia, the majority, referring to the Act of 1867, said, at page 417:

“. . . This Court, shortly after the passage of the Act, described it in equally broad terms: ‘This legislation is of the most comprehensive character. It brings within the habeas corpus jurisdiction of every court and of every judge every possible case of privation of liberty contrary to the National Constitution, treaties, or laws. It is impossible to widen this jurisdiction.’ Ex parte McCardle, 6 Wall. 318, 325-326.”

And, further in the opinion, it was said, at page 422:

“ . . . Even if the state court adjudication turns wholly on primary, historical facts, the Federal District Court has a broad power on habeas to hold an evidentiary hearing and determine the facts.”

(4) If the federal district court decides (either with or without an evidentiary hearing) to grant the petition, it has power to order the release of the state prisoner either absolutely or conditionally. The condition usually imposed is that the state court grant the petitioner a new trial within a specified time. The district court has no power to revise the state court’s judgment.

This rule is stated in Noia, at page 430:

“. . . And the broad power of the federal courts under 28 U.S.C. § 2243 summarily to hear the application and to ‘determine the facts, and dispose of the matter as law and justice require,’ is hardly characteristic of an appellate jurisdiction. Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him. Indeed, it has no other power; it cannot revise the state court judgment; it can act only on the body of the petitioner.

Such relief was granted in the Horn, Gonzales, and Griffith cases, all three of which originated in the courts of the state of Washington and involved persons convicted of first degree murder. (1) In re Horn v. State, 52 Wn. (2d) 613, 328 P. (2d) 159 (1958). (In the Horn case, a federal habeas corpus was issued June 27, 1959, by order of the Federal District Court for the Eastern District of Washington, cause No. 1385. No opinion was reported.) (2) Cranor v. Gonzales, 226 F. (2d) 83 (C.A. 9th, 1955).¹ (3) State v. Griffith, 52 Wn. (2d) 721, 328 P. (2d) 897 (1958), cert. den. 359 U. S. 1015, 3 L. Ed. (2d) 1039, 79 S. Ct. 1156 (1959); Griffith v. Rhay, 282 F. (2d) 711 (1960) (reversing 177 F. Supp. 386, and ordering habeas corpus to issue.) In none of these cases did the federal district court try to return the case to the Washington State Supreme Court before it proceeded, although the question of exhaustion of state remedies was obviously present in each of these cases. Such question had to be answered in order for the federal court to properly assume jurisdiction.

In Townsend v. Sain, supra (which was decided the same day as Noia), the Supreme Court discussed the problem as to when the federal district court must grant a state prisoner a factual hearing on his application for habeas corpus. The majority stated the rule, at page 311, as follows:

“The rule could not be otherwise. The whole history of the writ—its unique development—refutes a construction of the federal courts’ habeas corpus powers that would as-simulate their task to that of courts of appellate review. The function on habeas is different. It is to test by way of an original civil proceeding, independent of the normal channels of review of criminal judgments, the very gravest allegations. State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution. Simply because detention so obtained is intolerable, the opportunity for redress, which presupposes the opportunity to be heard, to argue and present evidence, must never be totally foreclosed. See Frank v. Mangum, 237 U. S. 309, 345-350 (dissenting opinion of Mr. Justice Holmes). It is the typical, not the rare, case in which constitutional claims turn upon the resolution of contested factual issues. Thus a narrow view of the hearing power would totally subvert Congress’ specific aim in passing the Act of February 5, 1867, of affording state prisoners a forum in the federal trial courts for the determination of claims of detention in violation of the Constitution. The language of Congress, the history of the writ, the decisions of this Court, all make clear that the power of inquiry on federal habeas corpus is plenary. Therefore, where an applicant for a writ of habeas corpus alleges facts which, if proved, would entitle him to relief, the federal court to which the application is made has the power to receive evidence and try the facts anew.

“HI.

“We turn now to the considerations which in certain cases may make exercise of that power mandatory. The appropriate standard—which must be considered to supersede, to the extent of any inconsistencies, the opinions in Brown v. Allen—is this: Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.”

In further elaboration, the majority stated, at page 318:

“. . . Although the district judge may, where the state court has reliably found the relevant facts, defer to the state court’s findings of fact, he may not defer to its findings of law. It is the district judge’s duty to apply the applicable federal law to the state court fact findings independently. The state conclusions of law may not be given binding weight on habeas. That was settled in Brown v. Allen, supra, at 506 (opinion of Mr. Justice Frankfurter).” (Italics ours.)

Having in mind these two recent decisions of the Supreme Court, both cases having been cited, and relied on by both parties, we now consider their application to the case before us.

As pointed out above, the petitioner in the present case had previously invoked the jurisdiction of the federal district court by filing his petition therein for a writ of habeas corpus challenging the validity on federal constitutional grounds of the judgment and sentence of death which was affirmed by this court in State v. White, supra.

The federal district court, after a hearing, entered the order of August 12,1964, a portion of which is quoted above.

As we read the order, the district court has taken jurisdiction thereof. But because the parties by their counsel have stipulated that the petitioner be granted an opportunity to make an application to this court for a writ of habeas corpus setting forth such issues therein as are challenged in this cause (i.e. in the federal district court) by the superintendent of the state penitentiary “upon the grounds of failure to exhaust state remedies pursuant to 28 U.S.C. § 2254,” the federal district court abated its own proceedings, but retained its jurisdiction.

For the reasons stated herein, we are of the opinion that the federal district court has exclusive jurisdiction of this matter, has final authority to decide all federal questions of law posed, and has power to hold a factual hearing if deemed necessary to enable it to decide the issues presented by the petition filed therein March 25, 1964, including the issue of whether the petitioner has exhausted his state remedies under § 2254.

It follows that we must decline to pass upon the petition for habeas corpus filed in this court by the petitioner on August 17, 1964, because this court has no jurisdiction of the matters alleged therein since the federal district court at present has exclusive jurisdiction thereof. That court cannot, directly or indirectly, or with or without the consent of the parties before it, vest in this court any jurisdiction of the subject matter.

II.

Assuming, arguendo, that this court has jurisdiction of the subject matter of this proceeding, we think that we should decline to exercise it.

If, as indicated in the federal court’s order (quoted above), the principal purpose in permitting the petitioner to file a substantially identical petition for habeas corpus in this court is to ask us to decide whether he has failed to exhaust his state remedies with respect to the matters alleged therein pursuant to 28 U.S.C.A. § 2254, we should decline to answer the question, because we would be rendering an advisory opinion on a federal question.

No question of state law is involved in this case. In this state there are only two courts of record—the superior court (the trial court) and the Supreme Court (the only appellate court). When petitioner was tried and sentenced by the superior court and his sentence was affirmed after a hearing before this court, he filed a petition for rehearing in this court (which was denied March 13, 1963).² It seems to us that the federal district court now is in a position to decide on the record made in the state courts whether the petitioner has exhausted his state remedies. No opinion by this court is necessary.

On the other hand, if the federal district court desires further investigation as to the factual matters alleged in the petition before it, that court has power to hold an evidentiary hearing and make its own determination as to any facts bearing on the question of whether the petitioner has been deprived of any rights guaranteed him by the United States Constitution.

Another facet of this case which should be noted is that the petitioner has asked this court to enter an order of reference requiring the trial court to hold a factual hearing on certain issues raised in the petition and make findings of fact in respect thereto.

It is clear (as stated in Judge Hale’s separate opinion herein) that we should not do so even assuming that we had jurisdiction to do so.

In the case of In re Horn v. State, 52 Wn. (2d) 613, 328 P. (2d) 159, which was an original application to this court for habeas corpus, Horn had been convicted of murder in the first degree and was sentenced to life imprisonment. He contended that he had been coerced by fear, coercion, and threats of bodily injury to sign a confession, which was admitted in evidence over his objection. In that case, we did grant an order of reference to the superior court requesting that it take additional evidence and make findings on the coercion issue. Upon receipt of the findings, we considered them and denied relief on the ground alleged in the petition. The United States District Court for the Eastern District of Washington, upon Horn’s subsequent petition to that court for habeas corpus, held an evidentiary hearing, and, upon its own findings, ordered Horn released permanently from the custody of the superintendent of the state penitentiary. See footnote 1, above.

The Horn case illustrates the futility of our delaying the functioning of the federal district court by granting an order of reference to the Superior Court of King County in the present case. Such a course would merely consume the time of state courts in an attempt to perform the functions of the federal district court, and would not in any way facilitate the final disposition of this matter by the only court which is competent to decide the issues.

In support of his motion, petitioner cites Noia and Sain. As we have endeavored to point out in part I of this opinion, the cited decisions not only do not support petitioner’s motion, but specifically hold that the federal district court has power to hold an evidentiary hearing to determine such issues. In our opinion, we should not delay the progress of this case by ordering the trial court to duplicate the functions of the federal district court.

On the oral argument, the petitioner’s counsel stated that the federal district court had permitted him to file his petition in this court (upon stipulation of counsel) as a matter of comity between state and federal courts.

We are unable to see that comity has anything to do with the present situation. As pointed out in Judge Hale’s separate opinion, this court long ago completed its functions in regard to this controversy. The petitioner invoked the jurisdiction of the federal district court pursuant to 28 U.S.C.A. § 2241, et seq. That court accepted jurisdiction of the proceeding and still retains jurisdiction “subject to the further order” of that court. It has also stayed the execution of this court’s judgment “pending further order” of that court.

The doctrine of comity simply requires that, where two courts have jurisdiction of a particular controversy, the first court to assume jurisdiction shall be permitted to completely dispose of it without interference from the other court. The doctrine does not mean that a federal district court which has taken jurisdiction of a controversy may grant permission to the litigants to transfer the case to the highest court of a state so that that court may perform part of the former’s functions or to refer the matter to a state trial court for that purpose.

If comity could conceivably have any application here, it can only mean that this court should refrain from making any decision on the merits and should decline to render an advisory opinion while the controversy is pending in a court of competent jurisdiction.

It is possible, under our separate federal and state judicial systems, to bounce a criminal case back and forth between them for 11 years. The Chessman case is a prime example.³ In the Chessman case there was a special problem, namely the reproduction of a trial record adequate for purposes of appeal from the unusual shorthand notes of a trial-court reporter who had died before he completed his transcription. The case’s collateral and nonjudicial aspects were well advertised by all types of news media. The case was a thorn in the side of both the federal and state judiciary, mainly because of the deference the federal courts tried to pay to the state courts (regarding the trial record and additional state court hearings). Much of the delay in that case could have been avoided if the federal district court had held evidentiary hearings and had determined the factual issues in 1950 as it finally did in 1956. (See footnote 3.)

As Judge Goodman stated in In re Chessman, 128 F. Supp. 600, 602 (N.D. Cal. S.D., 1955), after noting the prior numerous proceedings in state and federal courts:

“When does the wheel stop turning? What must the citizen think of our ‘nickel in the slot’ administration of criminal justice? The court would be fully justified in refusing to consider the present petition as repetitious [of prior proceedings] ... . ”

We do not suggest that petitioner in the present case is using the judicial tactics similar to those of Mr. Chessman, but we do think that this court should note the similarity of the various proceedings involving the petitioner in the courts of this state and those involved in the early Chessman proceedings. It seems to us that the only way to settle the issues raised by the petitioner once and for all is in one direct and complete proceeding in the only court with the final authority to hold the necessary hearings and decide the questions of fact and law, namely the federal district court, whose jurisdiction of the petition was invoked on March 25, 1964.

As indicated above, we are constrained to dismiss the petition before us for lack of jurisdiction of the subject matter. In the alternative, assuming jurisdiction, we must decline to give the petitioner a purely advisory opinion as to whether he has exhausted his state remedies.

The petitioner’s petition filed herein August 17, 1964, is hereby dismissed.

Hill, Weaver, and Ott, JJ., concur.

Rosellini, C. J., concurs in the result.

1 In Cranor v. Gonzales, 226 F. (2d) 83, the court of appeals affirmed the habeas corpus relief granted by federal district court in Giron v. Cranor, 116 F. Supp. 92, after an independent factual trial on new evidence produced in that court by petitioner.

Gonzales had been convicted in the Superior Court for King County of murder in the first degree, and was sentenced to life imprisonment on April 28, 1950. He did appeal to the Supreme Court of the State of Washington, but his appeal was dismissed for lack of prosecution without a hearing as to the merits. He later filed a petition in the Washington State Supreme Court for a writ of habeas corpus, which was denied.

He then filed a similar petition in the federal district court. His principal contention was that the confession which was admitted in evidence at his trial was obtained from him by striking and beating him and by threats of more such physical violence. The district court, after holding its own evidentiary hearing, ruled that Gonzales’ confession (self-incrimination) had been unconstitutionally obtained by the police. In granting him habeas corpus relief, the district court said:

“. . . The order will provide that Gonzales be released, unless the State grants him a new trial within sixty days after the date of the order, or, if appeal is taken, within sixty days after receipt by the Clerk of this Court of a mandate of the Court of Appeals affirming the order.” Giron v. Cranor, 116 F. Supp. 92, 97.

The court of appeals, in affirming, held that the federal district court had power to hold an evidentiary hearing and retry the factual issues. The court quoted from Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469, 73 S. Ct. 397, as follows:

“But the jurisdiction assumed and undertaken by the district court in this case was in no sense equivalent to the jurisdiction which the Supreme Court exercised in the Stein case [346 U. S. 156, 97 L. Ed. 1522, 73 S. Ct. 1077] and in no sense constituted a review or overruling of the case in the State court. The jurisdiction of the district court, if it existed, was that described by Mr. Justice Frankfurter in Brown v. Allen, supra, 344 U. S. at page 510, 73 S. Ct. at page 448; ‘Insofar as this jurisdiction enables federal district courts to entertain claims that State Supreme Courts have denied rights guaranteed by the United States Constitution, it is not a case of a lower court sitting in judgment on a higher court. It is merely one aspect of respecting the Supremacy Clause of the Constitution whereby federal law is higher than State law. It is for the Congress to designate the member in the hierarchy of the federal judiciary to express the higher law. The fact that Congress has authorized district courts to be the organ of the higher law rather than a Court of Appeals, or exclusively this Court, does not mean that it allows a lower court to overrule a higher court. It merely expresses the choice of Congress how the superior authority of federal law should .be asserted.’ ...” Cranor v. Gonzales, 226 F. (2d) 83, 91.

2 The former additional prerequisite to the exhaustion of state remedies was the application to the United State Supreme Court for a writ of certiorari to review the judgment of the highest court of the state. See Darr v. Burford, 339 U. S. 200, 94 L. Ed. 761, 70 S. Ct. 587, which was expressly overruled in this point in Noia. As mentioned above, petitioner took this step and his petition for certiorari was denied by the United States Supreme Court.

3 Chessman was tried beginning in the state trial court on April 11, 1949. Thereafter followed a long list of proceedings in the form of appeals, repeated applications for habeas corpus, and writs of certiorari. Only some of these were officially reported. They are as follows, in chronological order: People v. Knowles (and Chessman), 35 Cal. (2d) 175, 217 P. (2d) 1 (1950), cert. den. Knowles (Chessman) v. People, 340 U. S. 879, 95 L. Ed. 639, 71 S. Ct. 117 (1950); People v. Chessman, 35 Cal. (2d) 455, 218 P. (2d) 769, 19 A.L.R. (2d) 1084 (1950); People v. Chessman, 38 Cal. (2d) 166, 238 P. (2d) 1001 (1951), cert. den. 343 U. S. 915, 96 L. Ed. 1330, 72 S. Ct. 650, rehearing den. 343 U. S. 937, 96 L. Ed. 1344, 72 S. Ct. 773 (1952); Chessman v. People (of State of California), 205 F. (2d) 128, cert. den. 346 U. S. 916, 98 L. Ed. 412, 74 S. Ct. 278, rehearing den. 347 U. S. 908, 98 L. Ed. 1066, 74 S. Ct. 430 (1954); In re Chessman, 43 Cal. (2d) 296, 273 P. (2d) 263 (1954); In re Chessman, 43 Cal. (2d) 391, 408, 274 P. (2d) 645 (1954); cert. den. 348 U. S. 864, 99 L. Ed. 681, 75 S. Ct. 85 (1954); In re Chessman, 128 F. Supp. 600 (N.D. Cal. S.D. 1955) (In its statement of facts, the opinion notes four prior unreported denials of federal habeas corpus, dating March 17, 1950, December 4, 1950, November 6, 1951, and June 9, 1952), appealed; In re Chessman, 219 F. (2d) 162, affirmed 221 F. (2d) 276 (C.A. 9th), reversed 350 U. S. 3, 100 L. Ed. 4, 76 S. Ct. 34 (1955); In re Chessman, 44 Cal. (2d) 1, 279 P. (2d) 24 (1955). (This was a state habeas corpus application started after the federal habeas corpus reported in 128 F. Supp. 600 was denied, but before the appeal was completed on the federal habeas corpus.); Chessman v. Teets, 138 F. Supp. 761, affirmed 239 F. (2d) 205 (C.A. 9th), vacated 354 U. S. 156, 1 L. Ed. (2d) 1253, 77 S. Ct. 1127 (1956); Chessman v. Superior Court, 50 Cal. (2d) 835, 330 P. (2d) 225 (1958); People v. Chessman, 52 Cal. (2d) 467, 341 P. (2d) 679, cert. den. 361 U. S. 925, 4 L. Ed. 241, 80 S. Ct. 296 (1959); cert. den. 362 U. S. 965, 4 L. Ed. 879, 80 S. Ct. 883 (1959); Chessman v. Dickson, 275 F. (2d) 604 (C.A. 9th, 1960).