(dissenting).
I am unable to agree with the action taken by the majority of this court. Its opinion appears to be based on the assumption that the allegations of the petition raise questions of fact which have not as yet been determined or even investigated. On the contrary, as I see it, every pertinent question raised by the petitioner has been the subject of careful consideration by the Virginia state courts, including the highest court of the state. The case has twice been to the Supreme Court of Appeals of Virginia, once upon the merits (202 Va. 20, 116 S.E.2d 85) and once upon a petition for a writ of habeas corpus. In the first of these proceedings the appellate court considered all of the complaints based on the fact that the jury was not sequestered during the trial; and the petition for habeas corpus later denied by the Virginia appellate court presented the same grounds as are alleged in the instant petition. In both instances the Supreme Court of the United States denied certiorari.
I would approve the action of the district court in refusing the writ.