Thompson

Appellant, an inmate of Alcatraz prison, petitioned for discharge on habeas corpus and his petition was dismissed on motion of the warden. The question is whether the writ should have been issued and an inquiry into the facts pursued.

The petition discloses that in June 1941 appellant was tried and convicted in the United States Court for the Eastern District of Tennessee on a charge of kidnapping in violation of 18 U.S.C.A. § 408a, and was sentenced to serve twenty-five years. According to the petition, the question presented is “whether the petitioner was deprived of the rights to ,have the effective assistance of his counsel for the purpose of direct appeal.” The allegations are that petitioner was desirous of appealing to the United States Circuit Court for the Sixth Circuit but was prevented from doing so “in that he was deprived to have *375 access to his attorney for the purpose of perfecting such appeal, and that the United States Marshal immediately [within fifteen hours] conveyed Petitioner to the United States Penitentiary at Atlanta, Georgia, where Petitioner was deprived of his rights to contact his attorney, and that by such unlawfully acts of the United States…

(dissenting).

I 'dissent. The court’s opinion decides an important question of constitutional law contrary to the decisions of the Supreme Court in Cochran v. Kansas, 316 U.S. 255 , 62 S.Ct. 1068 , 86 L.Ed. 1453 ; Glasser v. United States, 315 U.S. 60 , 62 S.Ct. 457 , 86 L.Ed. 680 , and McCandless v. United States, 298 U.S. 342 , 56 S.Ct. 764 , 80 L.Ed. 1205 .

It further decides a question of constitutional law in conflict with the law as *376 stated by the Court of Appeals for the District of Columbia in Boykin v. Huff, 73 App.D.C. 378 , 121 F.2d 865 . It also overrules sub silentio the decision of this court in Wilfong v. Johnston, 156 F.2d 507 .

This court’s opinion holds that though a sentenced man, desiring to exercise his constitutional right to access to counsel and to file a notice of appeal, has been prevented from exercising such rights by the wrongful acts of the Attorney General’s agents and thereby lost his appeal, his petition for a writ of habeas corpus must be denied if it do not show the errors in his trial he would have relied upon if he had taken the appeal. 2 ****

That is to say, though Thompson show his constitutional right to due process has been denied,…