
    WALLER v. YOUELL, Superintendent of Virginia State Penitentiary.
    No. 4968.
    Circuit Court of Appeals, Fourth Circuit.
    June 16, 1942.
    See, also, 62 S.Ct. 1313, 86 L.Ed.-.
    Before PARKER, SOPER, and DOBIE, Circuit Judges.
   PER CURIAM.

This cause came on to be heard on the application of the petitioner to this court and each judge thereof for a certificate of probable cause for the allowance of an appeal, and also for an order allowing an appeal from the decision of the District Court of the United States for the Eastern District of Virginia, Richmond Division, whereby the petitioner’s application for writ of habeas corpus was denied ; and the application herein was heard at length by the undersigned, sitting as the Circuit Court of Appeals, Fourth Circuit, and as individual judges thereof; and it appeared from said application that the petitioner was indicted and tried for murder in the Circuit Court of Pittsylvania County, State of Virginia, and on July 15, 1940, was convicted by a petit jury therein, who found a verdict against the petitioner of murder in the first degree, and fixed the petitioner’s punishment as death, and petitioner was sentenced to be electrocuted on December 27, 1940; and that on said date, the Governor of Virginia granted a stay of execution to March 14, 1941, and on March 4, 1941, the Supreme Court of Appeals of Virginia granted a review of the judgment and sentence, and on October 13, 1941, affirmed the same, Waller v. Commonwealth, 178 Va. 294, 16 S.E.2d 808, and thereafter the petitioner was resentenced to be electrocuted on December 12, 1941; and that on December 9, 1941, the Governor of Virginia granted a stay of execution to March 20, 1942, to permit petitioner to apply to the Supreme Court of Appeals of Virginia for a writ of habeas corpus; and on January 22, 1942, such a petition was accordingly filed and was supported by affidavits containing factual allegations; and on the same date, the said court denied the petition for habeas corpus; and on March 12, 1942, the Governor of Virginia granted a further stay of execution to May 19, 1942, to permit the petitioner to apply to the Supreme Court of the United States for a writ of certiorari to review the action of the Supreme Court of Appeals of Virginia in dismissing the petition for habeas corpus ; and on April 1, 1942, the petitioner filed in the Supreme Court of the United States such a petition for certiorari; and on May 4, 1942, the Supreme Court of the United States denied said petition, 62 S.Ct 1106, 86 L.Ed. —; and on May 6, 1942, the Governor of Virginia granted a further stay of execution until June 19, 1942, to permit the petitioner to apply to the Supreme Court of the United States for a rehearing of the denial of certiorari; and on May 26, 1942, the petitioner filed such a petition for rehearing and at the same time applied to the Supreme Court of the United States for leave to file a petition for an original writ of habeas corpus; and on June 1, 1942, the Supreme Court of the United States denied the said petition for rehearing, 62 S.Ct. 1289, 86 L.Ed.-, and the petition for leave to file a petition for habeas corpus, Ex parte Waller, 62 S. Ct. 1285, 86 L.Ed. —L-; and on June 10, 1942, the petitioner filed in the District Court of the United States for the Eastern District of Virginia, Richmond Division, a petition for writ of habeas corpus, which was argued before said court on June 10 and 11, 1942; and that on June 11, 1942, the said court denied the petition for writ of habeas corpus, and on the same day refused a certificate of probable cause for an allowance of an appeal. 46 F.Supp. 411.

Now Therefore, it appears to this court and the individual judges thereof, that all of the questions raised by the petitioner herein have been repeatedly and maturely considered by the courts hereinbefore mentioned, that is to say, the Supreme Court of the United States, the Supreme Court of Appeals of Virginia, and the District Court of the United States for the Eastern District of Virginia, Richmond Division, and found to be without merit; and this court and the individual judges thereof being of the opinion that the petition filed herein is entirely without merit, it is, this 16th day of June, 1942, ordered:

That the application for a certificate of probable cause and for an appeal be and the same is hereby ■ denied by the Circuit Court of Appeals, Fourth Circuit, and by the undersigned as individual Circuit Judges.  