Price

This appeal challenges the discretionary power of the court to deny a habeas corpus petition because of an abusive use of the privilege of the writ through the filing of successive petitions presenting seriatim grounds at all times within the knowledge of the applicant. Panels of this court have repeatedly affirmed the existence of such authority, 1 but in view of the importance of the question and the possible bearing upon it of recent Supreme Court decisions the appeal has been set down for hearing before the full bench.

Appellant is serving a sentence of 65 years on a general verdict of guilty under an indictment charging violations of 12 U.S.C.A. §§ 588b(a) and (b) and 588c, relating to bank robbery and assault and kid *706 napping incidental thereto. The present is his fourth petition for the writ, all of them having been presented to the United States district court for the northern district of California. 2 On appeal from the first refusal to discharge we affirmed the judgment, Price v. Johnston, 125 F.2d 806 , cer-tiorari denied 316 U.S. 677 , 62 S.Ct. 1106 , 86 L.Ed. 1750 and a like result was reached on appeal in the second proceeding, Price v. Johnston, 9 Cir., 144…

(dissenting).

Under the pressure of the large number of habeas corpus petitions filed in this circuit, this decision establishes a principle hamstringing a wrongfully imprisoned man. It plainly makes it the, law for this circuit that a man convicted on perjured testimony procured by a United States attorney, but who does not discover the facts until after he has filed a petition for the writ on another ground, must serve his sentence — here for 65 years.

In so narrowing the relief afforded by the writ, this court is but following a continued line of decisions since the increase of such petitions in this court, in which the Supreme Court recently has reversed us. They are: Waley v. Johnston, 316 U.S. 101 , 62 S.Ct. 964 , 86 L.Ed. 1302 ; Robinson v. Johnston, 316 U.S. 649 , 62 S.Ct. 1301 , 86 L.Ed. 1732 ; Holiday v. Johnston, 313 U.S. 342 , 61 S.Ct. 1015 , 85 L.Ed. 1392 ; Walker v. Johnston, 312 U.S. 275 , 61 S.Ct. 574 , 85 L.Ed. 830 .

The ground of the petition of the appellant, kept from appearing before us, is properly stated in the court’s opinion. It is, as there stated, that the prosecuting attorney “knowingly employed false testimony on the trial, to obtain the…

(dissenting).

I am unable to subscribe to the majority opinion, because I think by it the holding in Swihart v. Johnston, 9 Cir., 150 F.2d 721, 722 , is extended beyond its true limitations.

In the Swihart case we held that controlling weight in the consideration of a petition for the writ of habeas corpus may be given the fact that a former petition, based upon the same cause, had been filed, heard and decided. We did not hold that the court could refuse to consider a petition for the writ merely because a former petition had been adjudicated. No case, so far as I am aware, has ever gone further than the expression we used in the cited case, to wit, “One of the matters which may be considered and given controlling weight is a prior refusal to discharge on a like petition.” This expression does not mean and should never be judicially extended to mean that because one petition had been heard and denied, a second petition, based upon different allegations, could or should be dismissed as a matter of course.

No more is stated in the cited case than that in the consideration of the second petition the instance of, and the facts connected with, the first petition may turn the scales…