Dunbar

Dunbar petitions for a second’ rehearing on his motion to me for a certificate of probable causé for appeal, which has twice previously been denied because of thfe failure to comply with certain procedural requirements. These requirements now having been met, I will proceed to consider the motion on its merits.

The appeal is from a judgment of the United States District Court for the Eastern District of Washington, Southern Division, dismissing Dunbar’s petition for a writ of habeas corpus. The record indicates that the district court relied upon two grounds in dismissing the petition: (1) That Dunbar’s complaint'was against the Washington State Board of Prisons and Paroles and not against the Superintendent of the Washington State Penitentiary, respondent below, and that the district court had no power of supervision and control over the former; and (2) that the petition does not state facts sufficient to entitle Dunbar to relief.

The first ground relied upon by the district court was erroneous. Dunbar alleges directly that he is in the custody of the Superintendent and this allegation is not controverted by any thing in the record. The person having the physical custody of the…