
    UNITED STATES ex rel. McCANN v. ADAMS, WARDEN, et al.
    No. 371.
    Decided November 8, 1943.
    
      Gene McCann, pro se.
    
    
      
      Solicitor General Fahy, Assistant Attorney General Tom C. Clark, and Mr. Oscar A. Provost were on the brief for respondents.
   Pee Curiam.

This proceeding is a sequel to Adams v. U. S. ex rel. McCann, 317 U. S. 269. We there reversed an order of the Circuit Court of Appeals of the Second Circuit discharging the present relator from custody. We did so because we held that, if his waiver was the exercise of an intelligent choice made with the considered approval of the trial court, he could as a matter of law waive his right to a jury trial without being represented by counsel. After the case went back to the Circuit Court of Appeals on mandate and further steps not necessary here to recount were taken, the relator filed a petition for a writ of habeas corpus in the District Court which, with supporting affidavits, adequately raised the issue whether in fact he intelligently — with full knowledge of his rights and capacity to understand them — waived his right to the assistance of counsel and to trial by jury. That issue, as appears from our former opinion, was explicitly withdrawn from consideration on the habeas corpus proceedings previously before the Circuit Court of Appeals. 126 F. 2d 774. That issue, now fairly tendered by the petition for habeas corpus below, has never been adjudicated on its merits by the lower courts. But it is no longer within the bosom of the trial court. Nor can it be disposed of on the appeal of his conviction, for the claim rests on materials dehors the trial proceedings. It is a claim which the relator should be allowed to establish, if he can. We camiot say that, in the light of the supporting affidavits, the petition for a writ of habeas corpus was palpably unmeritorious, and should have been dismissed without more. We are compelled therefore to accede to the Government’s consent to a reversal of the order of the Circuit Court of Appeals affirming the order denying the application for the writ of habeas corpus.

The motion for leave to proceed in forma pauperis and the petition for certiorari are therefore granted and the judgment is reversed for further proceedings not inconsistent with this opinion. Petitioner’s applications for other relief are denied.

So ordered.  