Appellant appeals from the order of the United States District Court for the Northern District of California denying his petition for a writ of habeas corpus. Appellant prosecutes this appeal in pro-pria persona. The district court issued a certificate of probable cause and permitted appellant to appeal in forma pauperis.

Appellant is presently in State custody following his conviction, by a jury, of violating Sec. 209 of the Penal Code of the State of California [kidnapping for the purpose of robbery], and two violations of Sec. 211 of the Penal Code of the State of California [robbery of two different persons].

Appellant, together with one Wright and one Malone, was tried in the Superior Court of the State of California in and for the County of Los Angeles, and each of the three was represented by separate counsel. No appeal was taken by appellant from the judgment of conviction. Co-defendant Wright appealed from the judgment of conviction imposed upon him, and his conviction was affirmed by the California Court of Appeals for the Second Appellate District. People v. Wright, 216 Cal.App.2d 866 , 31 Cal.Rptr. 432 (1963).

In his petition, appellant alleges that petitions for habeas corpus relief were denied by the Superior Court of the State of California in and for the County of Marin, and the California Court of Appeal, First Appellate District. It appears from the record that appellant filed a petition for writ of habeas corpus jointly with his co-defendant Wright in the Supreme Court of California, on the ground that appellant’s conviction rests on evidence obtained by an illegal search and seizure incident to an unlawful arrest, in violation of the Fourth Amendment to the Constitution of the United States. The petition was denied by written opinion. In re Wright, et al., on habeas corpus, 65 Cal.2d 650 , 56 Cal.Rptr. 110 , 422 P.2d 998 (1967). The Supreme Court stated, at page 652, 56 Cal.Rptr. at page 111 , 422 P.2d at page 999 :

In his petition for writ of habeas corpus filed in the district court, petitioner contends that he was convicted in violation of the rights guaranteed to him by the Fourth Amendment to the Constitution of the United States because evidence was used against him at the trial that was the product of an unlawful search and seizure. Specifically, he contends that the search and seizure was incident to an arrest which was unlawful because the arresting officers had insufficient information on which to base the probable cause needed for an arrest without a warrant.

In the written order denying appellant’s petition for the writ, the district court states:

The written order describes the events preceding the arrest of appellant by summarizing such events as set forth in the opinion in People v. Wright, supra, and such written order then continues:

In People v. Wright, supra, the Court states at page 869, 31 Cal.Rptr. at page 434:

We have examined the only brief filed by counsel for Wright in the District Court of Appeal. The only reference to the claimed violation of the Fourth Amendment, in respect to Wright, appears in the specifications of error. This reference is as follows:

We find no further reference to such contention in such brief. Since the only defense presented by Wright was an alibi, it is likely that Wright’s counsel considered the constitutional question, now urged before us by appellant, to be of no significance on Wright’s appeal.- At page 869, 31 Cal.Rptr. at page 434, in People v. Wright, supra, it is stated:

It is our view that the district court erred in not having before it, for consideration, a copy of the reporter’s transcript of appellant’s trial before making its finding of fact that:

In our view of the circumstances disclosed by the record, we believe that the rationale set forth in Townsend v. Sain, 372 U.S. 293 , 83 S.Ct. 745 , 9 L.Ed.2d 770 (1963), and Fay v. Noia, 372 U.S. 391 , *1141 83 S.Ct. 822 , 9 L.Ed.2d 837 (1963) 1 compel us to vacate the order entered by the district court and to remand the cause to the district court for further consideration after securing from appellee a reporter’s transcript of the trial of appellant in the State Court, and for such other and further proceedings as to the district court may appear to be required.

. The Court of Appeal decided this question against appellant Wright and in favor of the State. People v. Wright, supra.”

. See also 28 U.S.C.A. Sec. 2254 , as amended Nov. 2, 1966, Pub.L. 89-711, § 2 ; 80 Stat. 1105 .