Calvin Winston Jackson, Appellant, v. Louis S. Nelson, Warden, Appellee, 419 F.2d 1324 (9th Cir. 1969)

Plaintiff, a state prisoner, appeals from a denial of relief on a petition for a writ of habeas corpus. This is plaintiff's third attempt to obtain federal habeas corpus relief. Ruling on an earlier petition the district judge determined that all matters raised by plaintiff were matters of law. After consideration of the merits, he ruled against plaintiff's contentions. In each of the two prior applications the district judge denied petitioner a certificate of probable cause, and this court in each instance also denied such a certificate. (Misc. No. 2975 Oct. 19, 1966; Misc. No. 3613 Nov. 13, 1967).

In the present case, the district judge found petitioner's application did "not allege and is not predicated on factual or other grounds not previously adjudicated by this Court." Accordingly he denied relief on the petition under the terms of 28 U.S.C. § 2244(b). This section provides in pertinent part:

"When * * * after a hearing on the merits of an issue of law, a person in custody pursuant to the judgment of a State court has been denied by a * * * judge of the United States release from custody or other remedy on an application for a writ of habeas corpus, a subsequent application * * need not entertained * * * unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the * * * judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ."

Our review of the record indicates that plaintiff has not satisfied the burden placed upon him by 28 U.S.C. § 2244(b). The trial court correctly discharged the order to show cause and denied relief under the petition.

The judgment is affirmed.