The petitioner having suffered two previous convictions for other felonies, is serving a compulsory life sentence in the Texas State Penitentiary on a judgment of conviction for the offense of robbery by assault.
Convicted on March 11, 1941, he did not appeal. Beginning, however, in March, 1943, he has made persistent and repeated apjplications in many courts, both state and federal.1
When the present petition for habeas corpus was presented to him, the district judge, in a memorandum and order reviewing his first proceeding in the federal court, 5 Cir., 173 F.2d 980, and the further proceedings taken thereafter by him, stated: “The present petition must, I think, be regarded as a new proceeding but one in which I should consider only one question and that is the question of Massey’s not having had counsel at his trial, and that action on this petition should be deferred until the State of Texas and the petitioner shall have filed copies of proceedings, decisions, etc. with respect to his recent petition to the State Court for relief.”
Thereafter, the proceedings in the state court having been completed and copies of the documents, etc. upon which petitioner and the state stand in this proceeding having been filed in the federal court, the district judge, confining his determination to the one question whether the trial of petitioner without counsel was a violation of due process, went on to say:
“On this question of whether, since he was not represented by counsel at his trial, he is in custody in violation of the Constitution, etc. of the United States, I have examined again all the proceedings in this court and in the state courts and have reached the conclusion that his contention that his trial was not in accordance with the Constitution is without merit. Before applying to this court, he applied to the State Court, and this identical question was passed upon by the Court of Criminal Appeals of Texas on May 28, 1952 (see 249 S.W.2d 599). I believe that *667court reached the right conclusion under the law with respect to petitioner’s claim. Apparently no attempt has been made to carry his case to the Supreme Court of the United States.”
Petitioner thereafter moving for a certificate of probable cause and to be allowed to appeal as a poor person, the district judge, upon the basis of the views thus expressed, while allowing petitioner to appeal under Sec. 1915, Title 28 of the Code, declined to issue a certificate of probable cause.
Petitioner appealing from the order denying him the relief applied for, having lodged the record here, the appellee moved to dismiss the appeal because of the absence of a certificate of probable cause as required by Section 2253, Title 28 U.S.C. and of the fact that the State Court of Criminal Appeals has adjudicated appellant’s contention adversely to him, and appellant has failed to apply to the Supreme Court of the United States for certiorari.
Countering this motion and in addition addressing himself to the merits of his appeal, appellant is here insisting that the order was erroneously entered and that it must be reversed with directions to allow the writ and order his discharge, and Judge Rives of this court having issued a certificate of probable cause, we deny the motion to dismiss the appeal, and pass to a consideration of its merits.
A careful examination of appellant’s contentions in the light of the whole record, including that made on the former appeal to this court, and of the opinions of tile Court of Criminal Appeals of the State of Texas, convinces us that the district judge was right in holding that petitioner was not entitled to the writ and in denying his application for it. This is so for the reasons given by the trial judge in the opinions written by him, by this court in 173 F.2d 980, supra, and by the Court of Criminal Appeals in Ex parte Massey, Tex.Cr.App., 249 S.W.2d 599.
It is quite plain that appellant’s stand here is upon his insistence that a defendant, though he has not been adjudged insane, may stand trial without pleading or otherwise making a showing that he was of unsound mind and, thereafter, on the ground that he was of unsound mind at the time of the trial, may by habeas corpus collaterally attack and obtain release from custody under the judgment.
The holding of the Texas Court of Criminal Appeals that a final judgment of conviction cannot be collaterally attacked by habeas corpus on a contention of the insanity of the petitioner at the time of liis trial is in accord with decisions of other states 2 and of the federal courts.
The law standing thus in respect of petitioner’s right to collaterally attack the judgment of conviction by raising the question of insanity at the time of trial, and the Sixth Amendment requiring the appointment of counsel not being applicable in state court proceedings, appellant may not by this collateral attack upon the judgment obtain release from custody under it merely by joining with his claim that he had no counsel the claim that he was at the time of trial of unsound mind.
Further, on his former application for relief by habeas corpus, the district judge, upon a hearing of the issue whether he was or was not insane at the time he was tried and was, therefore, entitled to relief, determined it against him and denied his petition, and we affirmed, 173 F.2d 980. The issue of his unsoundness of mind, which appellant’s petition now tenders as a part of his claim that he should *668have been afforded counsel at his trial, is not available to him as an independent ground for release in this case. Nor does appellant stand any better on his contention that, though the claim of insanity at the time of trial, being a collateral attack on the judgment, is not an independent ground for release, it is relevant and material upon the issue he now tenders that he did not intelligently waive counsel.
In the first place, there is not, there never was, any basis in this case for such an issue since, under Texas law in a case less than capital, it is not necessary for counsel to be appointed for him unless the issue of his insanity is raised before trial and has to be tried.
The real question presented here is not whether petitioner intelligently waived counsel because in a state court in Texas such waiver is not required, but whether, under the undisputed facts, the trial was so unfairly conducted as to amount to a denial of due process.
Appellant does not point to any fact or thing showing that he had a defense and that he was unfairly deprived of it, or that he was otherwise not fairly tried, or even that there was any unfairness in the attitude of prosecutor or court. He rests his whole case upon the proposition raised long after his trial that because, as he now claims, he was then of unsound mind, he could not be tried without counsel.
If his position that he was of unsound mind, in the sense of being insane, is correct, and he had presented it or it had been otherwise timely raised, before or during the trial, he could not have been tried with or without counsel until under the Texas statutes the question of his sanity had been first determined, and he is now barred from collaterally raising an issue which he should have raised on the trial. He is thus in effect endeavoring to retry his case on an issue which should have been raised before or during trial, and it is fundamental that the writ of habeas corpus cannot be made to serve this pui-pose.
As the Court of Criminal Appeals pointed out on the appeal to that court, 249 S.W.2d 599, supra, there was nothing in connection with the trial to show unfairness in attitude or action on the part of the state or of the court. On the contrary, the record shows that defendant was offered an opportunity to plead guilty and take a sentence of five years but that he refused to do so and insisted upon the case going to trial. The record shows, too, that the defendant did not, either by his own testimony or by that of any other witness deny the crime of which he was charged, and that in the writ of habeas corpus, filed in the state court and there denied, with writ of certiorari to the Súpleme Court refused, he did not make the ground of his complaint and application either that he was not furnished with counsel or that he was of unsound mind.
It is settled law that the Sixth Amendment does not apply in state court proceedings and that a state law providing that it shall not be necessary to assign counsel in cases short of capital is not in violation of the Fourteenth Amendment or of any other conception of due process.
It is further established that while in particular cases the Supreme Court has asserted the right to determine on the undisputed facts whether or not a state trial has violated the due process clause of the Fourteenth Amendment, the fact that, unless the violation of the federal constitution is clear and plain, the action of the federal court would be an interference with state court proceedings, makes it imperative that something in the proceedings be pointed to as a denial of that process.3
Upon the facts of this case, as this record presents them, including therein, of *669course, the verdict of the jury and the judgment of the court, it appears: that petitioner is guilty of the offense of which he was charged, and, having been found guilty, became automatically subject to a sentence of imprisonment for life; that he was put to trial and tried, not oppressively or vindictively, and not until after he had been offered an opportunity to plead guilty and take a five year sentence; that he refused to do this and insisted on going to trial on his plea of not guilty; and that, as the legal and peremptory result of his conviction he was given the sentence which the statute compels.4
Upon this record, appellant may not attack the life sentence again, this time on the ground that he was mentally incompetent to stand trial. Under the procedure prevailing here and generally elsewhere, this is a collateral attack upon the judgment. If allowed, it would in effect permit a retrial in every criminal case of issues, which had been settled by the trial and judgment, not on the ground that anything was done by the state or the court which prevented appellant from making his defense, but on the wholly untenable, because collateral, attack upon the judgment, that he was of unsound mind at the trial and it was contrary to due process to put him to trial if he was in that state of mind without according him counsel.
In a long series of cases, beginning with Parsons v. State, 153 Tex.Cr.R. 157, 218 S.W.2d 202, and ending in Johnson v. State, Tex.Cr.App., 251 S.W.2d 739, including therein the opinion in the Massey case, 249 S.W.2d 599, supra, the Court of Criminal Appeals has dealt with the general question involved here, the effect upon a conviction in a less than capital case of the failure of the defendant to have the assistance of counsel. With an earnest purpose to apply the law as the Supreme Court of the United States has from time to time declared it, that court, canvassing the facts in each of the cases dealt with and hewing to the established line, that the appointment of counsel in a criminal case in the state court is not a legal right, and that each case must stand on its own facts and must he determined by a showing of whether or not due process has been violated, has deliberately, carefully, and, we think, correctly adjudicated each case, including Massey’s that has come before it.
Giving the fullest effect to petitioner’s claims of a denial of due process, all that can be made out of them is that he should have had counsel. Pie did not request the appointment of counsel. He did not complain because counsel was not appointed. He does not now show that anything was done to him unfairly or unjustly, which, if he had had counsel he could have been protected from. He does not even claim or make any showing, if he does claim, that if he had had counsel, he would have acted differently, in respect to accepting the offer to take a plea of a five year sentence, than he did act without counsel. But if it be assumed that he is in effect complaining that if he had had the assistance of counsel, he would have been advised by counsel to plead guilty and take a five year sentence rather than run a chance of a third conviction with life imprisonment, and would have taken the advice, this would not avail him. For if unless it is to he held in every case where hindsight shows that the course taken by defendant was not the wise one, that the failure to have the assistance of counsel converts what would otherwise be an error of judgment into a denial of due process, no violation of due process is presented here.
We are in no doubt that but for the fact that in this case the defendant was a third offender and that, looking with hindsight at the result of his action in not accepting a plea, he would have been better advised to accept it, there would be no possible basis for a claim that anything occurred in the trial which constituted a violation of due process. We cannot agree that this fact furnishes the basis for a finding that he was denied due process. *670On the contrary, we agree with the opinion of the Court of Criminal Appeals of Texas that it did not.
The judgment was right. It is affirmed.
. Ex parte Massey, 149 Tex.Cr.R. 172, 191 S.W.2d 877; In the Matter of Massey, 327 U.S. 770, 66 S.Ct. 954, 90 L.Ed. 1000; Massey v. Texas, 329 U.S. 674, 67 S.Ct. 109, 91 L.Ed. 595; In re Massey, rehearing denied 329 U.S. 823, 67 S.Ct. 107, 91 L.Ed. 700; Massey v. Moore, 5 Cir., 173 F.2d 980, certiorari denied 338 U.S. 837, 70 S.Ct. 46, 94 L.Ed. 511; Ex parte Massey, Tex.Cr.App., 249 S.W.2d 599.
. State ex rel. Novak v. Utecht, 203 Minn. 448, 281 N.W. 775; Mitchell v. State, 179 Miss. 814, 176 So. 743, 121 A.L.R. 258; Lee v. State, 35 Ala.App. 38, 44 So.2d 606, 607; Ex parte Lee, 248 Ala. 216, 27 So.2d 147; 14 AmJur., Criminal Law, Sec. 46; 25 Am. Jur., Habeas Corpus, See. 85, Note 12; Annotations on “Remedy and one convicted of crime while insane.” 10 A.L.R. 213 and 121 A.L.R. 267, 270; Whelchel v. McDonald, 5 Cir., 176 F.2d 260; Dodd v. United States, 10 Cir., 196 F.2d 190.
But the rule is otherwise in the Federal Court if the applicant has been adjudged insane. Ashley v. Pescor, 8 Cir., 147 F.2d 318, 320; Hahn v. United States, 10 Cir., 178 F.2d 11 ; Hallowell v. Hunter, 10 Cir., 186 F.2d 873.
. Betts v. Brady, 316 U.S. 455, 62 S.Ct 1252, 86 L.Ed. 1595; Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127; Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686; Gallegos v. Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86; Palmer v. Ashe, 342 U.S. 134, 72 S.Ct. 191, 96 L.Ed. 154; Commonwealth ex rel. Uhler v. Burke, 172 Pa. Super. 108, 91 A.2d 913, at page 915; and Johnson v. State, Tex.Cr.App., 251 S.W.2d 739.
. Art. 63, Vernon’s Penal Code of the State of Texas; Haro v. State, 132 Tex.Cr.R. 507, 105 S.W.2d 1093; Ex parte Massey, 149 Tex.Cr.R. 172, 191 S.W.2d 877, writ of certiorari denied, 329 U.S. 674, 67 S.Ct. 309, 93 L.Ed. 595.