Price v. Johnston

ST. SURE, District Judge.

Petitioner seeks his release from Alcatraz Penitentiary on his third petition for writ of habeas corpus. The first, No. 23268-W, was heard and denied on January 14, 1941, by Judge Martin I. Welsh. On appeal, with the entire record of the matter before it, and after lengthy discussion, the judgment of the District Court was affirmed. Price v. Johnston, 9 Cir., 125 F.2d 806. Certiorari was denied by the United States Supreme Court, 316 U.S. 677, 62 S.Ct. 1106, 86 L.Ed. 1750. The second petition, No. 23721-R, was heard by Judge Michael J. Roche, petitioner being present in court, and was denied by Judge Roche on September 8, 1943. On appeal the order of the District Court was affirmed. Price v. Johnston, 9 Cir., 144 F.2d 260.

Petitioner alleges “that the questions now raised was not raised in the prior petitions No. 23268-W and 10.671.R.” However, these matters were known to petitioner when he filed the petitions in 23268-W and 23721 — R. If petitioner intended to rely on these matters he should have urged them in 23268-W. “To reserve them for use in a later proceeding ‘was to make an abusive use of the writ of habeas corpus.’ ” Swihart v. Johnston, 9 Cir., 1945, 150 F.2d 721.

Since upon the face of the petition petitioner is not entitled to the writ, Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 85 L.Ed. 830, the petition for writ of habeas corpus is denied.