(concurring in part and dissenting in part).
I concur in the majority opinion insofar as it holds that “the district court acted within its discretion in refusing to appoint counsel to assist petitioners prepare their petitions before that court.” I dissent from that portion which holds that the district court erred in denying petitions for issuance of writs of habeas corpus “without having compelled production of the state court record to determine whether petitioners’ contentions were fully and fairly dealt with by the state court.”
Before agreeing to such a result, which in my view is calculated to be a mischief-maker as a precedent, I would have to be convinced to a certainty that such a result is required by Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770, much relied upon by Judge Castle. I have read and reread that opinion and I am not so convinced; in fact, the court there recognized that district judges were not required to grant evidentiary hearings in all cases. The court stated (page 318, 83 S.Ct. p. 760):
“Although the district judge may, where the state court has reliably found the relevant facts, defer to the state court’s findings of fact, he may not defer to its findings of law. It is the district judge’s duty to apply the applicable federal law to the state court fact findings independently.”
In the instant situation we have an opinion of the Supreme Court of Illinois, People ex rel. Glenn Lane et al. v. Pate, Warden et al., 39 Ill.2d 115, 233 N.E.2d 554, which incorporates its findings of fact on issues substantially identical with those relied on here.
The issues here raised by petitioners upon which they claim they were entitled to a hearing and a production of the state court record, as shown by the majority opinion, were “that the indictments were neither filed against nor served upon them prior to their trial, and that the jury was never polled and the verdict never signed.” In addition, petitioners allege in their petition, “The verdict was signed by only the foreman * *
In the Illinois Supreme Court case, Lane appealed from a judgment of the Circuit Court of Will County which dismissed his petition for habeas corpus. Thereupon, the Supreme Court granted leave to file an original petition for ha-beas corpus on behalf of Lane and Wor-low, both of whom were represented by attorneys. The issues before the Supreme Court and the contentions advanced in support thereof are stated in its opinion as follows (page 555, 223 N.E. 2d):
“The defendants contend that there is nothing of record to indicate either (1) that the petitioners were furnished with copies of the indictment returned in Peoria County or (2) that the trial in Putnam County was upon that indictment. They also contend that the record does not show that the indictment was returned in open court, or that the defendants were furnished with copies of it. And they assert that because the verdict upon which the judgments were entered was signed only by the foreman of the jury, the judgments are void.”
*976The court’s opinion evidences that each issue raised by defendants and their arguments in support thereof were considered and rejected. The court stated (page 556):
“The record of the proceedings at the trial of the defendants has been filed in this court as an exhibit in the original habeas corpus action, and it shows that the contentions of the defendants are totally without merit.”
The court specifically found (1) “The record shows affirmatively that both defendants were furnished copies of the indictment”; (2) “* * * the original indictment was included in the record of the proceedings in the circuit court of Peoria County which was filed in the circuit court of Putnam County on January 10, 1964,” and (3) “The record in the present case recites that the individual jurors were polled immediately upon the return of the verdict, and that each juror stated that the verdict returned ‘was and is now his or her verdict’.” The court also concluded (page 556) :
“The defendants’ contention that the convictions are nullities because the verdict was signed only by the foreman of the jury is not supported by any relevant authority.”
Thus, every factual issue raised by petitioners in the instant proceeding has been considered and found adversely to them by the Illinois court. Notwithstanding this, the case is to be returned to the district judges “to determine whether petitioners’ contentions were fully and fairly dealt with by the state court.” In doing so, the district judges will be required to examine and evaluate the same trial court record as that which the Supreme Court had before it. The majority opinion will cast an additional burden on district judges in this and perhaps other cases, for which, in my view, there is no logical or legal basis.