(dissenting).
The petitioner filed his petition for habeas corpus in the district court and his main contention was that the state prosecuting authorities knowingly used perjured testimony to secure his conviction for the crime of murder in the Massachusetts court in November, 1947. The court denied the application without requiring the respondent to answer and without a hearing, and the allegation that perjured testimony was knowingly used to secure his conviction must be assumed to be true and makes a prima facie showing of the denial of the prisoner’s due process rights under the Fourteenth Amendment. Williams v. Kaiser, 323 U.S. 471, 474, 65 S.Ct. 363, 89 L.Ed. 398.
On June 9, 1948 and September 24, 1948, the petitioner filed two motions for a new trial based on the ground of newly discovered evidence in the Massachusetts court. The hearings on the motions for a new trial, based on the principal ground of newly discovered evidence, i. e., that perjured testimony was knowingly used by the state authorities, were confined for the most part to affidavits presented by Cog-gins, which, if true, reflected perjured testimony and its knowing use by the state authorities. The motions for a new trial were heard on June 25 and December 7, 1948. The first motion was denied on June 28 and the second motion was denied on December 8, 1948.
The court denied both motions without making any findings with respect to the ultimate issue of fact, to wit, whether perjury was knowingly used by the state authorities to secure the prisoner’s conviction, and without filing an opinion. On appeal, the Massachusetts Supreme Court did not consider the constitutional question with which we are concerned here and the United States Supreme Court denied certiorari. The record in the state court on the motions for new trial is barren as to the reasons for the state court’s action and the following questions remain unanswered. Did the court find that perjury was knowingly used? If it did so find, did it know that under the *146doctrine of Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, the constitutional rights of the defendant would be violated? Or did the court deny the motions in the exercise of its discretion, Commonwealth v. Coggins, 324 Mass. 552, 87 N.E.2d 200, and not consider the evidence at all? Or, under Massachusetts practice, did the court deny Coggins’ motions for a new trial because it concluded-that the perjury, Coggins’ newly discovered evidence, was committed -but was not a material factor with the- jury in his conviction? Davis v. Boston Elevated Railway Company, 235 Mass. 482, 495, 496, 126 N.E. 841.
This latter- ground would run afoul of Mooney v. Holohan, supra, and it was on this ground the hearing on the second motion was conducted.4 The principles with respect to motions for a new trial set forth in the Davis case are applied to criminal as well as civil cases. Commonwealth v. Coggins, supra, 324 Mass, at page 555, 87 N.E.2d 200. Also, the court could have dismissed the -motions on the ground that the evidence was not “newly discovered”, Commonwealth v. Coggins, supra, 324 Mass. at page 554, 87 N.E.2d 200, and, of course, if this were done, it would connote a failure to consider the merits of the constitutional question.
There is no question that Massachusetts afforded opportunity under its practice for the petitioner here to prove deliberate use of perjured testimony to secure his conviction. The basic question is: did the prisoner secure a full and- fair hearing? .
Where .the;state courts have considered and adjudicated the merits of a prisoner’s contentions and the Supreme Court has reviewed or declined to review the state court’s decision, a federal court will not ordinarily re-examine upon a writ of habeas corpus the questions thus adjudicated. Ex parte Hawk, 321 U.S. 114, 118, 64 S.Ct. 448, 88 L.Ed. 572. Of course, the court was not saying this, circumstance was a bar to further proceedings in the federal court to re-examine the question even if the state Supreme Court considered the question and the United States Supreme Court denied certiorari. .It was addressing itself to the abuse of the writ and considering the question of res. judicata. The court merely pointed out that the circumstance that the state court had-adjudicated the question should be taken into consid*147eration by the federal court in exercising its discretion. It did not say that consideration of the constitutional question by the state court acts as a bar to the federal court hearing the truth of the fact and law involved. See Salinger v. Loisel, 265 U.S. 224, 230, 231, 44 S.Ct. 519, 68 L.Ed. 989; cf. 28 U.S.C.A. § 2244. Ex parte Hawk, supra, 321 U.S. at page 118, 64 S.Ct. at page 450, goes on to say: “But where resort to state court remedies has failed to afford a full and fair adjudication of the federal contentions raised, * * * or because in the particular case the remedy afforded by state law proves in practice unavailable or seriously inadequate, * * * a federal court should entertain his petition for habeas corpus, else he would be remediless.” (Emphasis mine.) Cf. White v. Ragen, 324 U.S. 760, 767, 65 S.Ct. 978, 89 L.Ed. 1348. If the state court proceedings in the case here were inadequate, and it seems they were, the district court should have entertained the petition.
I do not, as I say, consider there was a full adjudication of the federal contentions raised by the prisoner in the state court. The state remedy pursued by Coggins proved to be wholly inadequate. In fact, I do not find there was any adjudication at all of the basic factual question involved. Also, there is not the slightest evidence that the state court considered the constitutional claim in any respect, i. e., whether perjured testimony knowingly used, in and of itself, violated the Fourteenth Amendment. What the state court did consider was whether there was deliberate use of perjury and whether it was a factor in the conviction of the prisoner.
Judge WOODBURY states that federal courts are not courts of review of state court action. However, a federal court is not sitting'as a court of review in a habeas corpus proceeding. If the Massachusetts court committed an error of law, e. g., found knowing use of perjury, ■ concluded it was not- a material factor in securing Coggins’ conviction, and refused to vacate the conviction, certainly this court would entertain habeas corpus to correct the error. Res adjudicata has no application to petitions for habeas corpus and the power to overturn state criminal administration is not limited to the United States Supreme Court. Darr v. Burford, 339 U.S. 200, 216, 70 S.Ct. 587, 94 L.Ed. 761. “A petition for habeas corpus in a federal court, after the State process has been exhausted, ‘comes in from the outside,’ as Mr. Justice Holmes phrased it in his dissenting opinion in Frank v. Mangum, 237 U.S. 309, 345, 346, 35 S.Ct. 582, 594, 595, 59 L.Ed. 969; a view which established itself as law in Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543.” Mr. Justice Frankfurter dissenting in Darr v. Burford, supra, 339 U.S. at page 233, 70 S.Ct. at page 605. It cannot be denied that the petitioner in some court at some time is entitled to have the verity of his evidence with respect to the perjured testimony considered and the facts determined, even if at first blush it does not seem credible. In the absence of findings of fact, it is impossible, when one considers the alternatives upon which the motions for new trial could be denied, to state the merits were fully and fairly adjudicated. On the petitioner’s appeal from the denial of his motions, the Supreme Court of Massachusetts, Commonwealth v. Coggins, supra, was as much in the dark as I am as to the ground for the court’s denial of the petitioner’s motions and it in turn did not consider at all the basic federal question of constitutional law involved, i. e., the knowing use of perjured testimony or its relation to the Fourteenth Amendment, and the United States Supreme Court did not have it before it on the denial of certiorari. As a matter of fact the state Supreme Court could not consider Coggins’ constitutional claim, as no findings were made by the trial court. The Massachusetts Supreme Court pointed out that the lower court was empowered to dismiss the motions as a matter of discretion and for all the record shows, it would seem as though that is just what the lower Massachusetts court did and the Supreme Court approved.
There is something more to the due process of law guaranteed by the Fourteenth Amendment than regard for matter of form of procedure. Federal courts can and *148should look beyond form and inquire into the very substance of the matter to the extent of deciding whether a prisoner has been deprived of his liberty without due process of law. Frank v. Mangum, supra, 237 U.S. 331, 35 S.Ct. 588. Federal courts can inquire whether the proceedings have been more than an empty shell although every form may have been preserved. Mr. Justice Holmes in dissenting opinion in Frank v. Mangum, supra, 237 U.S. at page 346, 35 S.Ct. at page 594. Mr. Justice Holmes, 237 U.S. on page 347, 35 S.Ct. on page 595, of Frank v. Mangum, supra, states: “We have held in a civil case that it is no defense to the assertion of the Federal right in the Federal court that the state has corrective procedure of its own— that still less does such procedure draw to itself the final determination of the Federal question. * * * When the decision of the question of fact is so interwoven with the decision of the question of constitutional right that the one necessarily involves the other, the Federal court must examine the facts.” (Emphasis mine.)
Resort to United States Supreme Court decisions shows the insistence of that court on the requirement that prisoners confined both under federal and state process be afforded a full opportunity to be heard on the factual and legal aspects of a federal question. There is no need of an extensive review of the case's. Where the Supreme Court has had doubt concerning the basis of a state court judgment, it has remanded the case with a directive that the prisoner may proceed in the federal district court. Burke v. Georgia, 338 U.S. 941, 70 S.Ct. 422. As the court stated in Darr v. Burford, supra, 339 U.S. at page 215, 70 S.Ct. at page 596: “If this Court has doubts conr cerning the basis of state court judgments, the matter may be handled as in Burke v. Georgia, 338 U.S. 941, 70 S.Ct. 422, [perjury case] with an express direction that the petitioner may proceed in the federal * * * court * • * (Emphasis mine.) Such doubt exists here. The Supreme Court also stated in Darr v. Burford, supra, 339 U.S. at page 215, 70 S.Ct. at page 596: “There may be issues of state procedure, questions of fact regarding the alleged violations "of constitutional rights, and issues of law respecting the scope of constitutional rights — problems made difficult by the frequent practice of state courts to dismiss the applications without opinion.” (Emphasis mine.) The court also states, 339 U.S. at page 215, 70 S.Ct. at page 596‘: “If the District Court feels that error may have occurred, it has power to examine the application to see' if circumstances exist to justify it in holding a hearing on the merits.” (Cf. Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61, where the case was remanded to the state court for a determination of the facts.) Smith v. O’Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859; see cases sent back to the federal district court, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830. If, as in Burke v. Georgia, a state court case, where no opportunity was given to the prisoner under a state court statute to secure a hearing on his facts and constitutional question and the prisoner resorted to the federal court as the Supreme Court directed, the federal court would be required under the federal habeas corpus statute to make specific findings of fact, 28 U.S.C.A. § 2243; Walker v. Johnston, supra, 312 U.S. 287, 61 S.Ct. 579, the same procedure should be required in the state courts to satisfy due process where a federal question arises, if review in the federal courts is to be forestalled. Unless the state court does find the facts and states the reasons for its action, how can it be determined whether the prisoner has had a full and fair hearing of his constitutional question? We do not know in Coggins’ case whether it was. disposed of on a state ground contrary to federal law or on a federal ground. As the record remains in the absence of an opinion, Cog-gins’ case, if perjury was found, might have been denied on a state ground i. e., that there was perjury knowingly used but it was not a factor in convicting the prisoner. If so, a federal court should inquire into the federal question. White v. Ragen, supra, 324 U.S. at page 765, 65 S.Ct. at page 981. Generally speaking, if it does not • affirmatively appear in the disposition *149of a federal question in the state court that a ■ full and fair adjudication of the federal question was had — facts and constitutional claims — and the matter is open to the interpretation, as is the case here, that the prisoner’s contentions were disposed of in a summary manner as a matter of discretion or on some such state ground as that the perjury, if it was committed, was not a material factor (Massachusetts state law) in securing the prisoner’s conviction, the federal court should inquire into the facts and constitutional claim. Ex parte Hawk, supra, 321 U.S. at page 118, 64 S.Ct. at page 450.
My associates seem to dispose of this case by assuming or inferring that the state court judge found that the witness Rutina could not be believed and she did not commit perjury at the trial. If this assumption can be made, I would agree it would be the end of the petitioner’s case, as the federal court would probably not entertain the petition in the exercise of its discretion. Darr v. Burford, supra, 339 U.S. at page 215, 70 S.Ct. at page 596; cf. 28 U.S.C.A. § 2244. Also, if this assumption can be made, this case should be disposed of in one paragraph. To put it another way, if there was a decision that there was no deliberate use of perjury in' the state court, cases such as United States ex rel. Jackson v. Ruthazer, 2 Cir., 181 F.2d 588, 589 and Goodwin v. Smyth, 4 Cir., 181 F.2d 498 would lead the way and the federal court in all probability would decline to examine further into the merits. The state court decisions in these cited cases, People ex rel. Jackson v. Ruthazer, 196 Misc. 34, 90 N.Y.S.2d 205, and Smyth v. Godwin, 188 Va. 753, 51 S.E.2d 230, show affirmatively that the state authorities made an exhaustive review of the facts. Here we have the converse of these cases. There is nothing to indicate there has been a determination of the facts and there is positive evidence that even if the state court found perjury, the deliberate use of perjury, it applied state law in deciding the constitutional claim and not federal law. This case, unlike the cases cited, leaves the proceeding in the state court in an aura of darkness as to an adequate remedy — an unusual circumstance— that in the interests of justice should require a federal court to hear the facts and determine them no matter how depraved the petitioner appears to be from the record. Ex parte Hawk, 321 U.S. at page 118, 64 S.Ct. at page 450, 88 L.Ed. 572.
But how can this assumption, i. e., no perjury, be made, when there are other equally probable inferences, i. e., that the motions were dismissed as a matter of discretion; that the evidence was not newly discovered; that the court never heard of Mooney v. Holohan (the principle of the use of perjured testimony in its relation to due process is not found in any Massachusetts case); that even if it was acquainted with Mooney v. Holohan and Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214, it dismissed the motion on the ground the perjury was not a material factor in securing Coggins’ conviction ? How could a lower court decide that in all likelihood there was nothing in the petitioner’s case? Judge Woodbury makes the assumption because of the silence of the trial justice. Judge Magruder seems to justify his inference upon what Judge Pinanski stated at one of the hearings on the motions: “I say to him if I found as a fact he was convicted upon perjured testimony, I would set aside the verdict of the jury without the slightest hesitation.” This statement does not justify such an inference. Judge Pinanski said if “he was convicted upon perjured testimony.” (Emphasis mine.) He does not say if he found perjured testimony was “used” he would grant the motions. What he was saying is what is set forth in footnote 1 of this memorandum, namely, he would set aside the verdict of the jury if the perjured testimony was a factor in convicting the prisoner. He was merely giving expression to the applicable Massachusetts law.
I do not believe, in any event, that the prisoner’s constitutional rights should hinge on an assumption of the ultimate fact especially when that assumption is based on such extremely perilous foundations. The district court should refuse to review if the merits have already been “decided” against the prisoner, Darr v. Burford, su*150pra, 339 U.S. at page 215, 70 S.Ct. at page 596, not on an “assumption” they have been so decided.
Judge Woodbury, after assuming that' the state court found no perjury, adds another ground for his conclusion by stating the prisoner in the state court did not sustain the burden of proof imposed on him in a case of this type and cites Schechtman v. Foster, 2 Cir., 172 F.2d 339. This case in denying a petition for habeas corpus had two other strings to its bow in addition to what is set forth here. It reached the conclusion the petitioner had not exhausted his remedies in the state court; also the court gave conclusive effect on the merits to a denial of certiorari in the Supreme Court. See Justice Frankfurter’s discussion on effect of denial of certiorari in Darr v. Burford, supra, 339 U.S. at page 228, 70 S.Ct. at page 602, and footnote on Schechtman v. Foster. Schechtman seems to rule that the burden is on the petitioner to prove affirmatively that the state court did not consider and adjudicate the merits. Schechtman seems to say the way to carry the burden is to prove the court did not consider the evidence, or prove the court never heard of Mooney v. Holohan or Pyle v. Kansas. If we adopt this rule it would ordinarily impose an almost impossible burden on the prisoner in the absence of any reasons assigned by the state court for its decision. How can Coggins, in the absence of an opinion, prove that the court did not know that the deliberate use of perjured testimony would vacate the conviction? Again, how can Coggins, in the absence of findings, prove the court refused to consider the evidence ? It would seem to me a prisoner is helpless under the circumstances.
Further, if we adopt the rule of the Schechtman case and require a prisoner, in order to secure a hearing on his petition in the district court, to prove at least that the court did not understand that the deliberate use of perjured testimony would vacate the conviction, it appears .the record' has supplied that proof for, as stated in footnote 1 of this memorandum, the state court judge, whether he knew this was the law or not, did not intend to apply the federal law. He stated as a fact that he was applying state law, i. e,, that the perjury must be a factor in securing the conviction. Of what value was a knowledge of the federal law, if the court did not intend to apply it and might not have? It would seem from the record the Schechtman rule itself has been complied with here.
It seems to me that about all that has been decided in this case is that when a district court looks over a petition for habeas corpus and decides that there is in “all likelihood nothing in it”, that if there was he would, probably get relief in the state court, it will in no way be an abuse of discretion if the court dismisses the petition on the spot. I cannot agree. This method has the appearance of deciding the case before hearing the facts. Also, judges will differ' as to the likelihood of there being nothing in it and it would be a matter of what judge looks over the petition. This makes for uncertainty and confusion. If the petitioner got the right judge he would secure a hearing, otherwise not. There should be a better guide than this for the district courts to follow.
It would seem to be that the most salutary rule to adopt in cases of this type, in order that the district courts will have some guide to futuré action, is that unless it affirmatively appears that the state court has considered the evidence and the constitutional claims, the state procedure has been inadequate and the federal district court should hear the application and determine the facts in accordance with 28 U.S.C.A. § 2243, where specific findings are required. This rule would seem consistent with what the Supreme Court stated in Ex parte Hawk, 321 U.S. at page 118, 64 S.Ct. at page 450, 88 L.Ed. 572, to the effect that if the remedy in the state court proves inadequate, the federal court should entertain the petition for habeas corpus, otherwise the prisoner would be remediless. And to leave a petitioner without remedy is an abuse of discretion.
1 have approached the problems here keeping in mind we are concerned with a constitutional question and. not with the *151guilt of an individual who, the record might indicate, is guilty of the crime charged.
I would vacate the order of dismissal and send the case back to the district court for a hearing on the merits.
. After reading the transcripts of the hearings on the motions for new trial, the conclusion is irresistable that Judge Pinanski was considering Coggins’ contentions with respect to th-e alleged perjured testimony, not in the light, of Mooney v. Holohan, supra, but in the light of the principles with respect to motions for new trials laid down in Davis v. Boston Elevated Railway Company, supra, and which, of course, are applicable to criminal trials. Judge Pinanski was not considering the perjured testimony in the light of a federal constitutional claim but only as a state claim. That he did not consider the federal claim is evidenced from the following, quoted from the transcripts on the motions:
Judge Pinanski. “* * * • One of the natural difficulties which the court should have with an affidavit like Mrs. Rutina’s is that she now says, or what amounts to saying, in this affidavit or signed' statement, that she perjured herself at the time of trial, and therefore I must scrutinize carefully her new affidavit and all the affidavits that may throw any light upon hers, and determine whether she is still perjuring herself. But more important than anything else is whether her testimony at' this trial was of sueh importance that it affected the defendant, otherwise he would not have teen affected. * * * (Emphasis mine.)
* * * * *
“Can you, without too much trouble, turn to the place in her testimony which you say was so damaging. It wasn’t very long.”
The Assistant District Attorney argued. “ * * * the testimony of Theresa Rutina is only a small drop in .the bucket resulting in the conviction of the defendant Michael E. Coggins. I say to you in all earnestness that without' the testimony of Theresa Rutina there was overwhelming evidence of the guilt of Michael Cog-gins, * *
The prisoner presented a statement by a juror to the effect that the testimony of Rutina was a factor in securing his conviction; this was countered by the production of the juror' at the hearing who repudiated this statement.
The effect of the perjured testimony, if made, was a major issue at these hearings.