(dissenting).
If this were a proceeding brought by one in custody under a judgment of a federal court to obtain habeas corpus or Sec. 2255 relief and my differences with my colleagues arose out of whether, as a federal appellate court, they had taken a view of the merits of appellant’s claims, with which I could not agree, I would not feel disturbed. I would content myself with simply stating in dissent that, as plainly appears from the statement of them in the opinion, the claims asserted are merely claims of error which under settled law in this circuit and elsewhere must be asserted by appeal, and that, as grounds for the extraordinary relief of habeas corpus, they are wholly insufficient, indeed are patently frivolous. This, however, is not such a case.
On the contrary, it is another of the growing number of cases in which federal appellate courts, asserting a kind of moral and legal superiority in respect to provisions made by state legislatures regarding criminal trials and the proceedings in state courts in respect of such trials, which they do not have, seek to exercise a suzerainty and hegemony over them which, under the Constitution, they do not now have, and, if we are to continue to hold to our federal system, they cannot in law and fact exercise. They do this by making habeas corpus proceedings brought by persons in custody pursuant to a judgment of a state court, serve the office of a second appeal. Only this time the appeal is to the federal courts to be considered and determined there by the exercise of a kind of supervisory and super appellate jurisdiction over state courts not governed by clear and settled rules and standards but by the personal opinion of the particular reviewer, whether in a particular instance he thinks provisions of state laws governing criminal prosecutions, and proceedings had in state courts in respect thereto, do or do not measure up to what he thinks due process requires of the state under the vague, obscure and very fluid conception of due process thus stated in Betts v. Brady, 316 U.S. 455, at page 462, 62 S. Ct. 1252, at page 1256, 86 L.Ed. 1595:
“Asserted denial is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial.” Cf. Crooker v. State of California, 357 U.S. 433, at page 441, 78 S.Ct. 1287, at page 1293, 2 L.Ed.2d 1448.
It is this statement and the flood of activist federal decisions asserting under it federal jurisdiction over state court judgments in criminal cases which is at the root of the feeling of state legislatures, state judges and state prosecutors, that federal judges are usurping authority and jurisdiction they do not have and makes them wonder and, wondering, ask on what meat have these, our federal judges, fed that they have grown so great. Cf. Darr v. Burford, 339 U.S. 200, at pages 210, 211, 212, 70 S.Ct. 587, 94 L.Ed. 761, and particularly the quotation in note 34 from statements by the late lamented Judge John J. Parker, made while serving as Chair*45man of the Committee on Habeas Corpus 1 of the Judicial Conference of the United States:
“ * * * The thing in mind in the drafting of this section was to provide that review of state court action be had so far as possible only by the Supreme Court of the United States, whose review of such action has historical basis, and that review not be had by the lower federal courts, whose exercise of such power is unseemly and likely to breed dangerous conflicts of jurisdiction. * * * ” Parker, “Limiting the Abuse of Habeas Corpus”, 8 F.R.D. 171, 176-177.
With deference to the views of the majority in this case, it seems clear to me that the jurisdiction they have sought to exercise and the decision they have made upon the claims and facts in this case are not in keeping with the views and principles set out above, but are repugnant thereto, as is also this criticism in the opinion of the requirements of Art. 543 of the Texas Code of Criminal Procedure:
“Such detailed and technical requirements of a motion for continuance, no doubt, serve a salutary purpose in a proper case, but they cannot justify putting a defendant to trial when he has been given no fair opportunity to secure the attendance of his witnesses.”
Preliminary to a precise consideration of the questions presented to and decided by the court, I point in opposition to the majority’s statement, that the defendant persistently asserted his innocence, first to the fact that it appears from the record that the defendant took the stand on the trial of the case to testify on his own behalf and there admitted that he was a recidivist with a long criminal record of no less than seven previous convictions. I point, too, to the fact that when asked to explain his recent possession of the stolen camera, he made the patently false statement that, on October 13th, five days prior to October 18th, the day when, under the undisputed evidence, the camera disappeared from the car of its owner who had parked it near the State Fair Grounds in Dallas — he had been at the fair in the company of an unnamed penitentiary acquaintance of his who was carrying the camera; and that when this man departed he left the camera, and the defendant picked it up with the intention of returning it to its owner. He further stated: that, after holding it for about two weeks, because of his bad record — he was out on a governor’s pardon from a former conviction at the time — and his fear of going to the police, he decided to put it in a locker and to send anonymously to the owner, whose name was on the camera, the key thereto; and that, while making his journey to the locker, he was apprehended by the police.
*46The record also shows that appellant took and perfected an appeal from the judgment of conviction and applied for and was denied a writ of certiorari to the United States Supreme Court, and that, though he stated he was not represented by counsel, he did not complain either in the Court of Criminal Appeals or in the Supreme Court of the action of the court in providing him with the assistance of counsel and that he had suffered injury therefrom.
The district judge, carefully considering, in the light of the record, all his claims for relief, correctly, I think, denied them all as without merit and, as correctly, regarding them all as presenting no ground for the extraordinary relief of habeas corpus, denied a certificate of probable cause.
The majority, on the contrary, is of the opinion, incorrectly I think, that two of the claims put forward present grounds for such relief. One of these is that, though he appealed and his case was decided in the Court of Criminal Appeals of Texas, 301 S.W.2d 657, with certiorari denied by the United States Supreme Court, and, though he did not make any claim on appeal that he was prejudiced by the court’s action in appointing counsel or the action of his counsel in conducting his case, the fact alone that the judge had appointed counsel to confer with and assist him was a denial of due process.
With deference, it seems entirely clear to me that this position of the majority that, without pointing to anything which his counsel did which interfered with or prevented him from doing what he wanted done, he can, merely because of the fact that he said to the judge that he did not want counsel but wanted to conduct his own case, now assert that he was thereby deprived of due process, is patently untenable. However, assuming that, though he failed to assert it on appeal, he can now assert it on habeas corpus, no case has been cited, I have found none in which it has even been suggested, much less held, that a defendant is deprived of due process merely because the court, over his objection, appoints counsel to sit and confer with and assist him. Certainly none of the cases the majority cites in support of its view so hold. They all recognize that, while a defendant has a right to conduct his own case if the judge thinks him competent to do so, the judge has a wide and wise discretion in determining whether to appoint counsel to assist him, and not one of them has held, or even suggested, that the mere appointment of counsel, without a showing of harm therefrom, is a ground of error.
The second point, made by the majority, is no better taken. This is that the denial of his motion for continuance because of its failure to comply with the provisions of Art. 543 of the Texas Code of Criminal Procedure was a denial of due process. Here the majority, without pointing to any authority supporting the view, seems to think and say that the fourteenth amendment prevents or circumscribes the right of the Legislature of Texas to prescribe and of Texas courts to follow the prescribed procedure in criminal cases, and that it may be held that defendant has been deprived of due process when state procedure with regard to the requirements for motion for continuance does not conform to what the majority thinks due process requires.
Again, with deference but with complete conviction, I assert the law is absolutely settled othei’wise. As pointed out in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, and the many cases cited in it which have so held from and since its adoption, the Fourteenth Amendment does not require state courts to adopt criminal procedure prescribed for or in use in federal courts. See also Gallegos v. State of Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86.
One of the prime provisions of the Texas statute is that when a continuance is sought for absence of witnesses, the facts which are expected to be proved by the witnesses must be shown “and it must appear to the court that they are material.”
*47The defendant did not make such a showing, he does not make such now. The affidavits of those he puts forward are general and vague and state only that they could testify to matters which would aid defendant.
Under the facts of this case, to send it back to the district judge to try the issues presented is, I think, a complete rejection of the basic principle that a state, in matters in its own sphere, is sovereign, and that it is not subject to the supervision and control of federal courts.
I think the judgment should be affirmed, and I respectfully dissent from its reversal.
Rehearing denied; HUTCHESON, Chief Judge, dissenting.
. This committee, acting in concert with the Attorney General of the United States and with representatives of the Conference of Chief Justices of the States, of the Association of States Attorneys General, and of the Section of Judicial Administration of the American Bar Association, later submitted a proposed amendment to Sec. 2254, Title 28 U.S.C., developed by the committee with the approval of the representatives, as reported in the Proceedings of the 1954 meeting of the Judicial Conference, Sec. 22-24 at p. 22:
“The committee found that many persons convicted by state courts are seeking release from state penal institutions by writs of habeas corpus in federal courts, claiming that constitutional rights had been denied them in the state courts, that although only an insignificant number of these petitions had been successful, they had imposed an unnecessary burden on the the federal courts and greatly interfered with the procedure of the state courts.”
The committee’s bill, therefore, provided among other things that “an order denying an application for a writ of habeas corpus by a person in custody pursuant to judgment of a state court shall be reviewable only on a writ of certiorari by the Supreme Court of the United States.” (Emphasis supplied.)