Marion James Linden v. Fred R. Dickson, Warden California State Prison, San Quentin

Marion James Linden, a California state prisoner under sentence of death for murdering a policeman, appeals from a district court order dismissing his application for a writ of habeas corpus. ' This is the second time that he has been before this court, and he has been before the California Supreme Court on three occasions.

Less than three weeks after we affirmed the denial of Linden’s first application to the district court for a writ of habeas corpus, he filed the instant application in that court. In this application he presented no matter of which he was not fully aware when he filed his first application in the district court. The district court denied the second application on the day it was filed, without issuance of an order to show cause, without a hearing, and without examination of the state court record. Linden then appealed to this court. We issued a certificate of probable cause, granted leave to appeal in forma pauperis, and stayed execution until further order of this court.

The only ground urged by Linden for reversal is that the district court erred in dismissing the instant application without first examining the state court record.

When an application by a…