This is an appeal from a judgment of the United States District Court for the Northern District of California, Northern Division, denying the petition of Harold Jackson, appellant herein, for a writ of habeas corpus. Jurisdiction of this court is based upon 28 U.S.C. § 1291 (1958). Defendant was convicted after a jury trial in the Superior Court of the State of California in and for the City and County of San Francisco of kidnapping with resultant bodily harm. Since the death penalty was imposed, appellant took an automatic appeal to the California Supreme Court. People v. Jackson, 44 Cal.2d 511 , 282 P.2d 898 (1955). That court reversed the finding of bodily harm (and with it the death penalty) on grounds of insufficient evidence, but affirmed the conviction of kidnapping for-the purpose of ransom, and directed the superior court to impose a sentence of life imprisonment. Appellant did not petition the United States Supreme Court for a writ of certiorari after that decision.

Some six years later appellant applied to the California Supreme Court for a writ of habeas corpus on the grounds of misconduct of the trial judge and the prosecuting attorney. The California Supreme Court denied his petition and the Supreme Court of the United States denied certiorari.

Appellant then brought this habeas corpus petition in the United States District Court for the Northern District of California, Northern Division, on November 15, 1962. The district court issued an order to show cause to the warden of Folsom Prison. The warden made a written return thereto in which there was set out a summary of certain evidence given in the trial and in which certain legal contentions were made opposing the petition. On December 12, 1962, appellant filed a written traverse to the warden’s return. Thereafter, on May 9, 1963, the district court filed a written memorandum and order denying appellant’s petition for a writ of habeas corpus. Timely notice of appeal to this court was filed by appellant and his accompanying application for a certificate of probable cause was denied by the district court on the ground that the proposed appeal was without merit and not taken in good faith. A certificate of probable cause was later granted by this court.

The main contention made by appellant in the district court and in this court is that he has been denied a fair and impartial trial in violation of the due process requirement of the fourteenth amendment to the United States Constitution. The appellant makes no claim that the facts as to what occurred at the trial are in dispute. Indeed, he relies upon the facts shown in the record in the case. Upon oral argument counsel stated that the facts were not in dispute. Thus a hearing in the district court was not necessary.

At his trial in the state court, Jackson’s main defense was that the asserted kidnapping was a hoax devised between Jackson and the victim to extort money from the victim’s father. He also contended that the victim suffered no bodily harm during the claimed kidnapping. On appeal appellant also claimed that during his trial the trial judge and the prosecuting attorney were guilty of misconduct which required reversal. The contentions of appellant and the occurrences at the trial were discussed in detail by the Supreme Court of California in its opinion and rather than unduly lengthen this opinion we refer to that discussion, 44 Cal.2d at 517-521 , 282 P.2d at 901-903 . After this detailed discus sion the Supreme Court said, id. at 521 , 282 P.2d at 903-904 ,

The court thereupon reversed the conviction as to the death penalty and directed the trial court to impose a sentence of life imprisonment for the crime of kidnapping for the purpose of ransom.

Article VI, section 4% of the California Constitution reads as follows:

A defendant is entitled to a fair trial and the protection of the due process requirements of the fourteenth amendment even though the evidence of his guilt is overwhelming. Malinski v. New York, 324 U.S. 401 , 65 S.Ct. 781 , 89 L.Ed. 1029 (1945). That section 4% does not act to prevent a reversal where the established elements of a fair trial have been denied a defendant was pointed out by the California Supreme Court in People v. Sarazzawski, 27 Cal.2d 7, 10-11 , 161 P.2d 934, 936 (1945), where the court stated:

Later California cases have adhered to these principles.

The question before us is whether, conceding all that occurred at the trial, the appellant was denied his constitutional right to a fair trial. As stated in Sampsell v. California, 191 F.2d 721, 725 (9th Cir. 1951), cert. denied, 342 U.S. 929 , 72 S.Ct. 369 , 96 L.Ed. 692 (1952) :

The district court in its memorandum order set forth his appraisal of the trial as shown in the margin.

As did the district court, we also have examined the record and we have carefully read all of the many pages of the record which have been referred to in appellant’s opening and closing briefs. We agree with the district court and with the Supreme Court of California that at times the statements of the trial judge and of the prosecuting attorney were improper and should not have been made. However, considering all of the evidence in the ease, the length of the trial, the provocation offered by appellant, the more than abundant evidence of the guilt of the defendant, the inconsistent statements of the appellant, and all of the other factors that entered into the hotly contested trial, we cannot say that the errors, if any, committed in the trial court or any of the occurrences therein were of such stature that thereby the appellant was constitutionally deprived of a fair trial or of due process. Nor can we say as stated in Sampsell v. California, supra, “over the judgment of the state Supreme Court, that the trial was unfair to the point of violating the Fourteenth Amendment to the Constitution of the United States or in violation of any other section of that charter.”

The judgment is affirmed.

. Townsend v. Sain, 372 U.S. 293, 318 , 83 S.Ct. 745 , 9 L.Ed.2d 770 (1963). . People v. Rogers, 56 Cal.2d 301, 307 , 14 Cal.Rptr. 660, 663 , 363 P.2d 892, 895 (1961); People v. Elliot, 54 Cal.2d 498, 506 , 6 Cal.Rptr. 753, 758 , 354 P.2d 225, 230 (1960); In re Winchester, 53 Cal.2d 528, 531 , 2 Cal.Rptr. 296, 298 , 348 P.2d 904, 906 (1960); People v. Dorman, 28 Cal.2d 846, 852 , 172 P.2d 686, 690 (1946). . “Although the conduct of the trial judge and the district attorney are not to be condoned, and could certainly stand independently to sustain a reversal and the granting of a new trial, the conduct was not so gross, in considering the record as a whole, as to rise to constitutional proportions. Certainly the remarks, considering the whole record and length of the trial (The trial lasted from March 29, 1954, to May 6, 1954), are not sufficient to ‘move a federal court to hold, over the judgment of the State Supreme Court, that the trial was unfair to the point of violating the Fourteenth Amendment to the Constitution of the United States or in violation of any other section of that charter.’ [Citing Sampsell.] “The record contains the account of many demonstrations, contemptuous con-, duct, vulgarity, and disrespect for the law and the court, on the part of petitioner. The ease hinged on the credibility of the victim as opposed to the credibility of petitioner. When petitioner denied his own mother and brother (The brother appeared in court for visual identification and similarity, and testimony as to petitioner’s true identity.), his testimony was shown to be completely untrustworthy in this regard (as well as other points throughout the trial), and the jury had a clear course. The ill considered remarks by the court and the prosecutor could add very little to the inevitability of a judgment of conviction brought about by petitioner’s own conduct. The principal complaint of petitioner to the trial judge’s remarks were associated with the death penalty. The Supreme Court of California has, however, reversed the death penalty, thus eliminating the prejudicial sting of those remarks. What is left is hardly more than what might well be expected from a prolonged, heated and tense trial, especially in view of petitioner’s deportment therein.”