The application of Earl S. Cowen for certificate of probable cause was denied by me as Senior United States Circuit Judge. The petitioner has filed a petition for rehearing, apparently believing tha't the order heretofore made had been made by the Circuit Court of Appeals and that he was entitled to petition for rehearing under the rules of the court. The petition for rehearing may be treated as a reapplication for a certificate of probable cause.
The certificate of probable cause, where the petitioner is held under process issuing from a state court, is essential to give the appellate court jurisdiction. 28 U.S.C.A. § 466; Wilson v. Lanagan, 1 Cir., 79 F.2d 702.
Since the denial of petitioner’s application for certificate of probable cause, similar applications by George Melendez and by C. L. Hammond were denied by me on August 27, 1938.
In view of the fact that it was the duty of the District Court to refuse to issue a writ of habeas corpus where the petitioner is held under process of state court unless there are exceptional circumstances which justify or require the issuance of a writ, it cannot be said, where the trial court has exercised its discretion by denying the application leaving the party to his remedy before the state courts and in the Supreme Court of the United States, that there is probable cause for an appeal from such an order.
Petition denied.