
    BURNS v. WILLIAMS.
    No. 11550.
    Circuit Court of Appeals, Fifth Circuit.
    Feb. 8, 1946.
    Rehearing Denied Feb. 25,1946.
    M. B. Grace and Horace Alford, both of Birmingham, Ala., for appellant.
    John O. Harris, Asst. Atty. Gen., State ■of Alabama, for appellee.
    Before 'WALLER and LEE, Circuit Judges.
   PER CURIAM.

The motion for rehearing of our previous order refusing to issue a certificate of probable cause under Section 466, Title 28, U.S. C.A., as well as the motion seeking said certificate, were consolidated and argued together.

In oral argument it was represented that ■the lower Court, at the hearing, had before it a certified copy of the record presented to the Supreme Court of the State of Alabama in the application of petitioner for a writ of error coram nobis. It was further represented that the said recopd in the Su: preme Court contained affidavits containing the evidence relied upon by the petitioner and by the State of Alabama in such proceeding, and that the issues of law and fact in the proceeding before the State Court were identical with the issues of law and fact in the habeas corpus proceeding before the lower Court and now before this Court. We are of the view that all of the record which was before the District Court in this proceeding should be made a part of the record in said cause before us, and we have so directed.

Since the oral argument the Judge of the Court below has issued a certificate that a duly authenticated copy of the evidence before the Supreme Court of the State of Alabama had been introduced in the trial of said cause and considered by him, and this certified copy of said record, under the certificate of the Clerk of the District Court of the United States for the Middle District of Alabama, Northern Division, has been duly received. It is ordered that said portion'of said record so filed shall be considered a part of the record in the proceeding now before us.

We are of the opinion that the proceedings in the lower Court present no new questions of law or fact that have not heretofore been considered and acted upon by the Court of last resort of the State of Alabama, 246.Ala. 135, 19 So.2d 450, and cer-tiorari denied by the Supreme Court of the United States, 65 S.Ct. 589, and that, therefore, probable cause, as required by Section 466, Title 28 U.S.C.A., for an allowance of an appeal to this Court has not been shown and does not exist.

It is, therefore, ordered that the petition for a certificate of probable cause to this Court should be, and the same is hereby, on this rehearing, denied.

It is further ordered that the motion of the respondent to dismiss the appeal filed herein in the absence of a certificate of probable cause should be, and the same is hereby, sustained, and said appeal is hereby dismissed.

McCORD, Circuit Judge, took no part in the consideration or decision of this case.  