William Roscoe White v. Donald Wyrick, Warden, Missouri State Penitentiary, Jefferson City, Missouri

WEBSTER, Circuit Judge,

dissenting.

I respectfully dissent. The factual allegations contained in petitioner’s section *8202254 petition state no more than that Judge Statler, the state trial judge, would support by opinion testimony his belief that there was insufficient evidence to support the conviction. While a liberal construction of the petition may be in order, it is impossible to glean from the petition any factual basis for an implied contention that there was no evidence to support the conviction. Petitioner carries this burden, and it seems to me that he must make his position discernible from his petition. Were it otherwise, no petition, however frivolous, could ever be dismissed where sufficiency of the evidence was the stated basis for the habeas corpus claim. This would defeat our holding in Cunha v. Brewer, 511 F.2d 894, 898 (8th Cir. 1975).