In re the

Poe has presented to this Court what he calls a “Petition for a Writ of Probable Cause” which is in substance an application for a certificate of probable cause as prescribed by Title 28, § 2253. Pursuant to the Court rules, the petition has been assigned to me for consideration and action.

Poe proposes to appeal to this court from an order of the United States District Court for the District of Oregon denying his petition for a writ of habeas corpus. He is a prisoner serving a term in the Oregon State Penitentiary, pursuant to the judgment of an Oregon Court. His petition for writ of habeas corpus was denied by the district court on the ground that he had not exhausted his remedy in the state courts within the meaning of § 2254 of Title 28.

In considering whether I should issue this certificate I am of the opinion that I am permitted, as was the district judge, to “call for the record” of the state proceedings in which petitioner alleges he did attempt to procure the same relief. See Brown v. Allen, 344 U.S. 433 , 463, 503, 73 S.Ct. 397 , 97 L.Ed. 469 . I have done that and discover that the records of the Circuit Court of Marian County, Oregon, show that on March 26, 1956, Poe…