(dissenting).
I must respectfully dissent. Petitioner alleged in his habeas application that he was indicted in Winnebago County, Illinois, in 1943 and that as a result of the efforts of the county authorities he was unlawfully confined in the Illinois Security Hospital until 1948, when, after release, he was tried and convicted. He claimed that the delay in bringing him to trial was so unreasonable as to contravene the due process clause of the fourteenth amendment. The district judge dismissed the petition, citing 28 U.S.C. § 2244. An earlier habeas petition, presented to the same judge and alleging the same facts, was- denied for “lack of federal jurisdiction.” Such disposition necessarily implies that the merits of the claim were not considered.
Since there has never been a hearing on the merits of petitioner’s claim of a denial of his constitutional right to a speedy trial, today’s affirmance of the district court’s ruling based on section 2244 ignores the holding in Sanders v. United States, 373 U.S. 1, 12, 83 S.Ct. 1068, 1075, 10 L.Ed.2d 148 (1963). There the Supreme Court said, “§ 2244 is addressed only to the problem of successive applications based on grounds previously heard and decided.” (Emphasis added.)
The function of an appellate court is to review a lower court’s ruling, not to decide questions de novo. Yet it appears that this court has undertaken an original determination with respect to the merits of petitioner’s claim.
I would reverse and remand for an evi-dentiary hearing in the district court. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).