Before BIGGS, Chief Judge, and McLAUGHLIN and STALEY, Circuit Judges.
McLAUGHLIN, Circuit Judge.
This is an appeal from the denial of a writ of habeas corpus.
On February 23, 1956, appellant was found guilty of burglary by a jury of the Court of Quarter Sessions, Erie County, Pennsylvania. The trial lasted eight days, through all of which appellant, at his own insistence, represented himself. The transcript contains 746 pages of testimony, the vast bulk of which consists of appellant's direct and cross-examination of witnesses. That record plainly reveals the great restraint and patience of the trial judge in his attempts to keep the defendant within even the most liberal bounds of procedure. On denying the application for a new trial, the court en banc said regarding the defendant's trial conduct: "Throughout the trial the defendant was guilty of tactics, well planned in this writer's opinion, which would not have been attempted or tolerated had counsel continued to represent him. * * * Although the courts are and should be concerned that the rights of a defendant charged with crime be fully protected, nevertheless society should also be protected against what we believe to have been in this case unjustifiable and malicious effort to thwart justice and orderly judicial procedure." One of the judges in a separate opinion stated: "No fairminded person can read the record in this case without reaching the conclusion that the defendant was afforded more rights, privileges and concessions than he was entitled to. * * * With all due deference to the patient trial judge who submitted to defendant's tactics in order that there be no advantage taken of him because no counsel was present, I am of opinion that the law does not require that a trial judge go as far as was done in this case. * * * If any error was committed in this case it was entirely against the Commonwealth."
Following the denial of the new trial motion Helwig was sentenced to a term of four to ten years. On September 30, 1957 the Pennsylvania Superior Court affirmed the conviction saying in part [Commonwealth v. Helwig, 184 Pa.Super. 370, 134 A.2d 694, 696], "The appellant set out from the beginning of his trial to use the constitutional safeguards of every citizen as weapons to thwart the efforts of constituted authority to protect society from criminal acts. The lower court recognized his plan and leaned over backwards to patiently extend to him every protection of the law." Leave to appeal to the Pennsylvania Supreme Court was denied on July 21, 1958.
On January 8, 1957 the Court of Common Pleas refused a petition for habeas corpus as premature, pending decision of the Superior Court on Helwig's appeal from his conviction. A petition to appeal from this ruling was denied by the Pennsylvania Superior Court on February 13, 1957 for non-payment of the filing fee. The Pennsylvania Supreme Court similarly ruled on March 8, 1957. Certiorari was denied by the United States Supreme Court on June 10, 1957. Helwig v. Cavell, 354 U.S. 912, 77 S. Ct. 1302, 1 L. Ed. 2d 1430.
On January 31, 1958 Helwig attempted to file an original application for a writ of habeas corpus with the Pennsylvania Supreme Court which was refused since it was not the proper procedure.Prior to this, on January 21, 1958 Judge Sorg of the United States District Court for the Western District of Pennsylvania denied Helwig a writ of habeas corpus on the ground that he had not exhausted his state remedies on the issues he presented. Judge Sorg also refused a certificate of probable cause for appeal.
Another petition for a writ of habeas corpus was filed with the Court of Common Pleas on March 7, 1958 and an order to show cause allowed. That petition was dismissed on April 22, 1958. On May 16, 1958 leave to appeal the dismissal to the Superior Court was refused for non-payment of the filing fee. The Pennsylvania Supreme Court followed a similar course on June 10, 1958.
On November 5, 1958 Helwig filed a petition for habeas corpus with the United States District Court, Western District of Pennsylvania. A rule to show cause whether there should be a hearing on the petition issued on December 2, 1958. As a result of the hearing on that rule the court allowed a hearing as to why the writ of habeas corpus should not issue and ordered that nine persons, in Pennsylvania and Ohio, be subpoenaed to appear on behalf of Helwig. The hearing on the petition for habeas corpus was held before Judge Marsh on January 12, 1959. At both the preliminary hearing and that on the merits of the petition, Helwig refused counsel and appeared pro se. At the hearing on the merits, 238 pages of testimony were taken, consisting mostly of examination of witnesses by Helwig. On March 2, 1959 the application for the writ was denied. 171 F.Supp. 417. The present appeal is from the order denying the writ.
Throughout this lengthy litigation, appellant has asserted that he was "framed" by his wife, friends, a person who he alleges is the "real burglar" and various state and local officials; that this was accomplished by false and perjured testimony; and that the prosecutor knew the testimony was false. The issue of "framing" was exhaustively covered at the state court trial. Any conflicting testimony regarding it at that trial was before the jury for its consideration, and obviously resolved against Helwig. The District Court granted the habeas corpus hearing "* * * because relator represented that the testimony of five 'eye witnesses' was suppressed and withheld by the prosecution 'whose testimony would prove that [he] was falsely accused of burglary' * * *." The hearing was limited to:
a. Facts discovered since the trial which would show a conspiracy to falsely convict Helwig.
b. Facts showing suppression of evidence.
c. Facts showing a denial of due process and equal ...