Ekberg

This is an appeal from an order of the district court refusing to allow appellant Ekberg to file, in forma pauperis, an application for a writ of habeas corpus. The district court found that the applicant, a prisoner confined on a conviction of felony in the state courts of California, had exhausted his state remedies and that the Supreme Court of the United States, 339 U.S. 969 , 70 S.Ct. 988 , 94 L.Ed. 1377 , denied certiorari to review the action of the Supreme Court of the State of California in denying his petition for habeas corpus. The brief of the appellee admits that the application for the writ in the district court presents no grounds which have not been presented heretofore in the action filed by appellant in the state court, namely, the petition for the writ of habeas corpus to the California Supreme Court.

The ground of the district court’s decision is that, although the appellant had exhausted the state remedy in habeas corpus, he must nevertheless show exceptional circumstances to warrant the exercise of his discretion to refuse to allow the filing of his application for the writ “if it appear that the applicant has no cause of action”. Huffman v. Smith, 9 Cir.,…

(dissenting).

The appeal is from an order denying an application for leave to file a habeas corpus petition in forma pauperis. Such an application is addressed to the discretion of the trial court, Huffman v. Smith, 9 Cir., 172 F.2d 129 , Tate v. People, 9 Cir., 187 F. 2d 98 , and I am unable to see that the court abused its discretion. The petition for the writ presented no question of substance. Most of the points raised had been fully considered by the California court on appeal from the judgment of conviction, People v. Ekberg, 94 Cal.App.2d 613 , 211 P.2d 316 , and their lack of merit exposed. In respect of points not urged on the direct appeal there is likewise no substantial showing of the denial of a federal right. I would affirm the judgment.