(dissenting).

The court’s opinion has completely missed the point of this appeal. Says the opinion: “The prime contention of Simpson’s counsel appears to be that because the California Supreme Court denied without opinion his petition for the writ, that therefore it did not consider the petition.” (Emphasis mine.) That is not the point at all. Whether a state court shall or shall not write an opinion when it decides a case, is of no concern to any federal court. 1 The appellant here has not argued otherwise. What he has contended is something quite different. It is that he has never had, a hearing, either in the California court, or in the district court below. Of course, he had a hearing on the appeal from his conviction. But the facts he now asserts were not in issue at his trial, or on that appeal. What he now alleges, and seeks to prove is, that the prosecutor for the state knowingly used false testimony to obtain appellant’s conviction, testimony which the State’s Attorney coerced a witness into giving. 2 The petition was *893 inartificially drawn in Simpson’s own handwriting, 3 but the essential allegations are there when it is construed in accordance with the rule of Thomas v. Teets, 9 Cir., 205 F.2d 236, 238 , and the cases there cited. 4

If the facts alleged are true, he has been denied his constitutional right to due process. Mooney v. Holohan, 294 U.S. 103 , 55 S.Ct. 340 , 79 L.Ed. 791 ; Pyle v. State of Kansas, 317 U.S. 213 , 63 S.Ct. 177 , 87 L.Ed. 214 . There is no denial of these allegations, hence they must be assumed to be true. White v. Ragen, 324 U.S. 760, 763 , 65 S.Ct. 978 , 89 L.Ed. 1348 ; House v. Mayo, 324 U.S. 42, 45 , 65 S.Ct. 517 , 89 L.Ed. 739 ; Thomas v. Teets, supra, 205 F.2d at page 238 .

Certainly, if the allegations of the petition were put in issue, and hearing were had, it might well develop that the allegations were not true. But the right of any litigant, no matter who he may be, to have a hearing upon an issue of fact presented to a court, is a very elementary one, and a fundamental thing. Very recently the Supreme Court has reversed a State Supreme Court, Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116,123 , 76 S.Ct. 223 , and this court, Chessman v. Teets, 350 U.S. 3 , 76 S.Ct. 34 , for failure to afford a state prisoner a hearing on his allegations of denial of constitutional rights.

Had the issue raised by the allegations of this petition been determined by a state court which “has given fair consideration to the issues and the offered evidence,” it would not have been obligatory for the court below again to try the same issue. Brown v. Allen, 344 U.S. 443, 463 , 73 S.Ct. 397, 410 , 97 L.Ed. 469 . But the issue here, the issue of knowing use of perjured testimony, was never tried in any California court. The petition was presented to the California Supreme Court on February 24, 1955, and denied the same day. Appellant had a right to a hearing in the district court and its denial was error.

What was said in Herman v. Claudy, supra [ 350 U.S. 116 , 76 S.Ct. 226 ] has precise application here. The court said: “The foregoing narrative of the allegations in the petition and the answer reveals a sharp dispute as to the facts material to a determination of the constitutional questions involved. The allegations as to petitioner’s treatment prior to confession and his understanding of the nature and consequences of a guilty plea present the very kind of dispute which should be decided only after a hearing. It is true that the trial record shows that petitioner told the judge that he was guilty and said ‘I throw myself at the mercy of the court, Your Honor.’ But neither these nor any other statements made before the trial judge at that time are in themselves sufficient to refute as frivolous or false the serious charges made by the petitioner concerning matters not shown by the record. * * * The sound premise upon which these *894 holdings rested is that men incarcerated in flagrant violation of their constitutional rights have a remedy.”

In attempting to understand the reasons which may have prompted the trial court to dismiss this petition without a hearing, I bear in mind, of course, that at that time the Herman v. Claudy case and the Chessman case had not been decided. But Thomas v. Teets had been, and it had reversed the same district court. There is no suggestion in the order that there had been failure to exhaust the state remedy. 5 The indication is quite the contrary, and any such suggestion would in any event be without merit. 6

How then may we account for the trial ■court’s action? The recital in the order that the California court “has fully and •adequately considered all matters presented to it by petitioner” is just not so, for the petition was denied the same day it was filed. The trial court could not, in the words of Brown v. Allen, supra, be “satisfied, by the record, that the state process has given fair consideration to the issues and the offered evidence”, for there was no such record, and no such ■consideration.

This is not the only case in which hearings have been refused upon issues of fact presented by such petitions, or by petitions under Title 28 § 2255. Note the reversals in Herman v. Claudy, Chessman v. Teets, Thomas v. Teets, supra, Price v. Johnston, 334 U.S. 266 , 68 S.Ct. 1049 , 92 L.Ed. 1356 , and United States v. Hayman, 342 U.S. 205 , 72 S.Ct. 263 , 96 L.Ed. 232 . I cannot help but think that this situation has some relation to the appalling volume of such applications which continue to flood the federal courts. In many instances the petitions have an air of incredibility. It is apparent that even if they were required to be verified by oath, the pains of perjury would be no deterrent to the filing of such petitions. The available statistics demonstrate that such skepticism is justified. In Cranor v. Gonzalez, 9 Cir., 226 F.2d 83, 93 , we gave the figures compiled by Mr. Justice Frankfurter as to the outcome of some 3702 such applications made during a four year period. Only five of those applicants made a case for discharge by federal district courts. In short, with but rare exceptions, the applications were without merit. The prisoner who makes *895 such an application has nothing to lose and everything to gain. The prisoner under sentence of death may gain time; other prisoners, at the very least, may gain a trip to the federal courtroom. But the filing of contrived petitions will not be discouraged by too critical a construction of petitions with summary denials thereof. Thus Thomas, whose petition contained allegations which were simply not true, Thomas v. Teets, 9 Cir., 220 F. 2d 232 , nevertheless obtained years of delay, and had the satisfaction of obtaining a reversal and of seeing his name in the reports, 205 F.2d 236 because the hearing he finally got was first denied him. The same thing happened to Price, a federal prisoner, prior to the adoption of Title 28, § 2255, (Price v. Johnston, 334 U.S. 266 , 68 S.Ct. 1049 , and Price v. Swope, 9 Cir., 178 F.2d 273 ), and after the adoption of § 2255 it happened to Hayman, (United States v. Hayman, 342 U.S. 205 , 72 S.Ct. 263 and Hayman v. United States, 9 Cir., 205 F.2d 891 ). The much publicized experience of applicants such as Thomas, Price and Hayman may well have encouraged others to try the same thing, and have contributed to the spate of such cases.

Of course the Price, Hayman and Thomas cases were close ones. Thus the Thomas reversal was by a closely divided court. But if in any case of doubt the trial court when presented with a petition for a writ of habeas corpus would forthwith take steps to set the case for hearing, and the taking of testimony, it seems likely that when the facts show a fabricated case, and the findings so state, the whole matter could be brought to an end by denial of a certificate of probable cause.

The feeling, supported by the statistics, that the chances are 740 to 1 that such an application is without merit, the knowledge that it may even be a contrived invention, should not deter any judge from shouldering this burden of combing the facts in every such case upon the chance that it may be one of those 13/100ths of 1 per cent that may have some merit. Granting that these applications, all taken together, present a task for the courts that is hard to bear, yet it is a proud tradition of our system that every man, no matter who he may be, claiming denial of due process is entitled to have that claim examined. Making this examination, doing this combing at the earliest possible stage in the litigation may well help ameliorate this serious condition in the federal courts.

* * *

Since the foregoing was written the concurring opinion has been presented. It but serves further to demonstrate the weakness of the majority’s position. It seeks to make two points. The first is that the California court, on the mandatory appeal, “accepted this testimony as true”. Of course it accepted it as true; —the question of coercion by the prosecutor was not then in issue, as I have stressed above. “ [T] he question brought forward on a habeas corpus, is always distinct from that which is involved in the cause itself.” Ex parte Bollman, 1807, 4 Cranch 75, 101 , 2 L.Ed. 554 , per Marshall, C. J.

The second point is based upon the fact that the Supreme Court denied cer-tiorari after the California court had' denied the identical petition for habeas' corpus. That this circumstance has no. significance whatever in a case of this kind was decided in Brown v. Allen, 344 U.S. 443, 497 , 73 S.Ct. 397 , 97 L.Ed. 469 .

The remark, in the concurring opinion, that “he suggests no one else who will testify to the fact”, is one I cannot understand. A petition need not list expected witnesses. He has been given no chance to call any. As the Supreme Court said of a similar suggestion in Price v. Johnston, 334 U.S. 266, 291 , 68 S.Ct. 1049 , 1063: “Whether petitioner does or does not have any new information * * * is a matter which should be determined in the first instance by the District Court. And it is one on which petitioner is entitled to be heard either *896 at a hearing or through an amendment or elaboration of his pleadings.”

I think the order of the district court should be reversed and the cause remanded for a hearing upon the merits.

. That is aside from those rare cases ■where the United States Supreme Court, reviewing a state court decision, must inquire whether the state decision rested on a state or a federal ground. See Dixon v. Duffy, 344 U.S. 143 , 73 S.Ct. 193 , 97 L.Ed. 153 .

. As disclosed by the decision of the California court on petitioner’s mandatory appeal, People v. Simpson, 43 Cal.2d 553 , 275 P.2d 31 , Simpson was prosecuted on the theory that he counseled, advised and encouraged Ms thirteen year old son, Clarence Simpson, to kill petitioner’s wife, Vivian. Among the state’s witnesses was one Donald Dodge, a sixteen year old son of the deceased woman, who testified as to petitioner’s threats to Mil his wife, and that petitioner said to his wife: “I’m going to kill you and make it look like an accident. I’ll have Clarence do it.”

Appellant’s petition plainly refers to this testimony when it alleges: “Frank *893 Pierson, the deputy district attorney taken my stepson by the arm and told him to swear what I told you to swear I gave you that car. If you do [not swear] what I told you to swear, I will prosecute you.” (The bracketed words are inserted at the point where the writing in the original petition is illegible.) The quoted language followed a general allegation that false testimony was given against petitioner.

. Simpson had been sentenced to die February 25, 1955. His counsel advise us that they were appointed to assist petitioner at approximately 5:00 P.M. on February 23, when they were completely unfamiliar with his case; that they visited him at San Quentin the following morning and secured from Iiim the petition prepared by him in longhand. They presented the petition in that form to to the district court which granted a stay to permit habeas corpus in the California court. The same day, an identical petition was filed with the California Supreme Coux-t which promptly denied it. The time factor no doubt accounts for the failure of Simpson’s counsel to redraft the petition.

. “Thomas’ application being drawn by an inexperienced layman is to be construed to give its allegations effect, though inartificially drawn. Darr v. Burford, 339 U.S. 200, 203 , 70 S.Ct. 587 , 94 L.Ed. 761 ; Price v. Johnston, 884 U.S. 266 , 292, 68 S.Ct. 1049 , 92 L.Ed. 1350 .”

. Following an introductory recital that the petition had been considered and counsel heard, the order stated: “And it appearing to the court that the Supreme Court of the State of California has fully and adequately considered all matters presented to it by petitioner, that the courts of the State of California have afforded petitioner due process of law and his present contentions appearing to be without merit,

“It is therefore ordered that the petition of Henry C. Simpson for a writ of habeas corpus be and the same is hereby denied and any stay of execution heretofore granted is vacated.”

. Respondent warden does contend that there was failure to exhaust the state remedy because of the failure of appellant’s petition in the Supreme Court of California to conform to the rule of In re Swain, 34 Cal.2d 300, 303 , 209 P.2d 793, 796 . That ease requires that a convicted defendant “allege with particularity the facts upon which he would 'have a final judgment overturned and that he fully disclose his reasons for delaying in the presentation of those facts.” The petition in the California court was in form identical to that filed below. Plainly it meets the requirements of the Swain case. The state court would necessarily read the petition in the light of its own prior decision on the appeal from the conviction. That decision shows that the testimony of Donald Dodge was material and was relied upon by the State to help supply the requisite corroboration for an accomplice’s testimony. Since the allegations in this portion of the petition are of matters dehors the record on appeal, the excuse for failure to present those facts upon the appeal is self-evident. Nothing in the California court’s order denying the writ indicates that it was denied because of lack of particularity. The order of the court below shows on its face that it considered that the California court denied the petition on the merits. “The reasonable inference, therefore, is that the California Supreme Court denied the petition on the merits of the case.” Woollomes v. Heinze, 9 Cir.. 198 F.2d 577 . 578.