Swope

This is an appeal by the warden of Alcatraz prison from an order, granted by Judge Denman of this court, directing the discharge of appellee McDonald, from custody on his petition for habeas corpus. 79 F. Supp. 30 .

On the same claim of deprival of counsel and on substantially the same showing as is made here the Court of Appeals óf the Tenth Circuit has twice held against the petitioner, McDonald v. Hudspeth, 113 F.2d 984 ; McDonald v. Hudspeth, 129 F.2d 196 , in each of which cases certiorari was denied, 311 U. S. 683 , 61 S. Ct. 64 ; 85 L. Ed. 441 ; 317 U. S. 665 , 63 S. Ct. 75 , 87 L. Ed. 535 , rehearing denied 317 U. S. 709 , 63 S. Ct. 157 , 87 L. Ed. 565 . This court in turn, on the identical evidence now- presented, reached the conclusion that .the petitioner is not entitled to his release. Johnston v. McDonald, 9 Cir., 157 F.2d 275 . The Supreme Court again denied review, McDonald v. Johnston, 329 U. S. 795 , 67 S. Ct. 480 , 91 L.Ed. 680 . The Sixth Circuit, also, in a proceeding by McDonald to vacate the judgment of conviction, rejected the claim here asserted. McDonald v. United States, 166 F.2d 323 . Normally we would, without further discussion, reverse on the…