author: BALDWIN, Judge.

text:
    Application of KAHAN & WEISZ JEWELRY MFG. CORP.
    Patent Appeal No. 74-546.
    United States Court of Customs and Patent Appeals.
    Jan. 16, 1975.
    Edward Halle, New York City, atty. of record, for appellant.
    Joseph F. Nakamura, Washington, D. C., for the Commissioner of Patents. Fred W. Sherling, Washington, D. C.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   BALDWIN, Judge.

• This appeal is from the decision of the Trademark Trial and Appeal Board affirming the examiner’s refusal to register the mark DUCHARME as a trademark for watches on the Principar Register. We reverse.

The examiner refused registration under the Lanham Act, section 2(e)(3) (15 U.S.C. § 1052(e)(3)) on the ground that DUCHARME is primarily merely a surname. The board affirmed the refusal to register while adding, “[mjoreover, ‘DUCHARME’ is admittedly a surname and while it may well be, as applicant in substance contends, a rare surname, Section 2(e)(3) of the Statute makes no distinction between rare or commonplace surnames.” Further, the board quoted from the examiner’s answer:

The name Ducharme is listed in var-' ious telephone directories as a surname just as applicant has disclosed in its amendment on June 16, 1971.

Opinion

The sole issue here is whether the mark sought to be registered, DU-CHARME, was properly refused registration under section 2(e)(3) of the Lanham Act as being primarily merely a surname. Section 2 in pertinent part reads:

No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it—
******
(e) Consists of a mark which .
(3) is primarily merely a surname. [Emphasis added.]

It is clear that the burden is on the Patent Office to prove that the trademark is primarily merely a surname. In re Standard Elektrik Lorenz Aktiengesellschaft, 371 F.2d 870, 873, 54 CCPA 1043, 1047 (1967).

This court has recognized that section 2(e)(3) is difficult to apply in determining whether a mark is primarily merely a surname. However, we are of the opinion that a correct resolution of the issue can be made only after the primary significance of the mark to the purchasing public is determined, as suggested by Ex parte Rivera Watch Corp., 106 USPQ 145, 149 (Com’r Pat.1955). We thus adopt the reasoning expounded in Rivera in which it is stated:

A trademark is a trademark only if it is used in trade. When it is used in trade it must have some impact upon the purchasing public, and it is that impact or impression which should be evaluated in determining whether or not the primary significance of a word when applied to a product is a surname significance. If it is, and it is only that, then it is primarily merely a surname.

The board held that in view of the lack of any established secondary meaning of appellant’s mark, the mark would only have the significance of a surname to purchasers. Thus, the board, in essence, shifted the burden of proof to appellant without first establishing that DUCHARME is primarily merely a surname. As stated previously, the Patent Office has the burden to show that DUCHARME is primarily merely a surname and unless it meets its burden, appellant need not demonstrate non-surname significance of its mark.

The examiner stated that DUC-HARME is listed in various telephone directories as a surname. In fact, in answer to the examiner’s refusal to register, appellant referred to the Manhattan telephone directory in New York City noting that it lists six names similar to applicant’s mark. Although the board did not specifically state that it adopted such an approach as establishing that DUCHARME is primarily merely a surname, the telephone directory is the only evidence produced by the examiner as a basis for his refusal to register DU-CHARME on the Principal Register.

Although the use of a telephone directory may be considered a factor in determining whether a mark is primarily merely a surname, we do not find this, standing alone, to be determinative of the issue. This is particularly true here where the Patent Office only relied upon six listings in the Manhattan telephone directory supplied by appellant. Such a showing does not establish that the primary significance of DU-CHARME to the purchasing public is that of a surname. See Ex parte Wayne Pump Co., 88 USPQ 437, 439-40 (P.O. Ex’r Ch.1951); Ex parte Gemex Co., 111 USPQ 443 (Com’r Pat.1956); Drexel Enterprises, Inc. v. Colby, 138 USPQ 1 (S.D.Cal.1963).

Therefore, the decision of the board is reversed.

Reversed.

      . Abstracted at 180 USPQ 272 (1973).

      . Application serial No. 369,851, filed Septem- < ber 4, 1970.

      . See In re Standard Elektrik Lorenz Aktiengesellschaft, 371 F.2d at 872, 54 CCPA at 1045, in which it is stated:
      This provision of the act [section 2(e)(3)] has been productive of diverse and not easily reconcilable decisions by the Trademark Trial and Appeal Board as well as by the courts. i

      See also, Ex parte Rivera Watch Corp., 106 USPQ 145 (Com’r Pat.1955).

      . The six names are written in three different forms:
      du Charme
      Du Charme
      Ducharme


source: Caselaw Access Project

author: RIVES, Circuit Judge:

license: Public Domain

text:
    Richard VAN EATON, Jr., A-004413, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Adult Corrections, State of Florida, etc., Respondent-Appellee.
    No. 73-2888.
    United States Court of Appeals, Fifth Circuit.
    Feb. 27, 1975.
    Paul T. Marks, Tampa, Fla. (Court-appointed), for petitioner-appellant.
    Richard C. Booth, Asst. Atty. Gen., Warren H. Peterson, Asst. St. Atty., Davis G. Anderson, Asst. Atty. Gen., Tampa, Fla., for respondent-appellee.
    Before RIVES, GEWIN and GOLDBERG, Circuit Judges.
   RIVES, Circuit Judge:

This appeal was argued and submitted on the same day as McCloud v. Wainwright, 5 Cir. 1975, 508 F.2d 853, also decided today. The' two cases present for decision similar, if not identical, questions of law. Each appellant is a Florida State prisoner who, having exhausted his state remedies, filed in a federal district court a petition for habeas corpus which was denied on the grounds that, by his failure to object prior to trial, the petitioner had waived his rights to object to the composition of the grand jury which indicted him and of the petit jury which found him guilty.

On January 28, 1966, an indictment charging Van Eaton with murder in the first degree was returned by the grand jury then sitting in Pinellas County, Florida. On July 21, 1966, the state trial court appointed counsel to represent Van Eaton. The case was set for trial on January 16, 1967. After extensive voir dire examination of the jurors, the case was tried, and the jury returned a verdict finding him guilty of murder in the first degree without a recommendation of mercy. The judgment of conviction was affirmed in Van Eaton v. State, Fla. 1967, 205 So.2d 298. Van Eaton then filed a pro se petition in the trial court for habeas corpus or for relief under Rule 1, then Fla.R.Crim.P. 3.850 (SRC l), which was denied. The judgment denying relief was affirmed by the Florida District Court of Appeal for the Second District. Van Eaton v. State, Fla.App.1969, 226 So.2d 265. Van Eaton next filed a petition for habeas corpus in the federal district court. On September 28, 1971, the district judge ordered that the petition “is hereby assigned to the United States Magistrate at Tampa, Florida.” The magistrate appointed counsel to represent Van Eaton. Pretrial investigations and proceedings consumed about one year. During that year, the Supreme Court of Florida held that the jury composition method employed in Dade County, Florida, since 1966 was constitutionally infirm, but noted that:

“Although we are required to hold that there were arbitrary exclusions in the selection of the jurors, those who have been convicted can receive no comfort from this decision. A challenge to the panel, or challenge to the array, is used to question the selection or drawing of prospective jurors. Such a challenge must be made and decided before any independent juror is examined, unless otherwise ordered by the Court. FRCrP Rule 3.300, 33 F.S.A. Such an objection comes too late after verdict and has no place in a motion for new trial or in arrest of judgment. By going to trial before a jury without any objections, a defendant waives all irregularity in the drawing, summoning and impaneling of such jurors.” State v. Silva, 1972, 259 So.2d 153, 158.

On October 28, 1972, pursuant to stipulation of counsel, the magistrate set November 13, 1972, as a date for hearing before the magistrate, and, in that order,

“ORDERED and ADJUDGED that based upon a review of the entire file, including the deposition of Lorraine B. McNevin filed herein, I find that the petitioner has established, prima facie, that the jury selection method employed by Pinellas County, Florida officials to select the grand and petit juries, which indicted and tried petitioner, was violative of petitioner’s right to due process and a fair trial. Accordingly, the burden will be upon the respondent, if he is able, to establish at the evidentiary hearing, that the jury selection method did not deprive petitioner of his federally protected rights.”

The evidentiary hearing to be held November 13, 1972 was continued until November 27, 1972. At that time the magistrate inquired whether either party had further evidence to submit, and counsel for both parties replied in the negative. Instead, each side submitted a memorandum on the law. Attached to the respondent’s memorandum was an affidavit of the Deputy Clerk of the Circuit Court of Pinellas County, Florida. Van Eaton’s counsel moved to strike that affidavit and in support submitted his own affidavit to the effect that the evidence had been closed and, if reopened, he desired to cross-examine the Deputy Clerk. The magistrate made no ruling on the motion, nor on the evidence. Instead, on May 9, 1973, the magistrate filed his “Report and Recommendation,” as follows:

“Petitioner, Richard Van Eaton, Jr., claims that he was indicted and tried by juries which were composed in violation to federal constitutional standards. Based on a review of the entire file and evidence adduced at evidenti-ary hearing, I find that petitioner went to trial without making any objection to jury composition..

“Petitioner’s constitutional claim relative to the jury composition was waived by his failure to make timely pretrial objection. See: Florida Criminal Procedure Rule 3.330, formerly Rule 1.300, Florida Statutes § 913.01; Florida Statutes, § 905.05; Frazier v. State, 107 So.2d 16 (Fla.l9_); State v. Silva, 250 [sic] So.2d 153 (Fla.1972). In view of the recent Supreme Court decision in the case of Davis v. United States, [411] U.S. [233], No. 71-6481, decided April 17, 1973, it is apparent that petitioner has waived his objection to the composition of the juries which indicted and convicted him. Accordingly, it is not necessary to reach the merits of petitioner’s claim.

“I recommend that the petition be dismissed.

“This 9th day of May, 1973.
PAUL GAME. JR.
PAUL GAME, JR.
UNITED STATES MAGISTRATE”

The district judge then dismissed Van Eaton’s petition for habeas corpus by the following order:

“THIS CAUSE came on for consideration upon the petition for writ of habeas corpus filed by a state prisoner, Richard Van Eaton, Jr., pro se, in for-ma pauperis. Petitioner claims that he was indicted and tried by juries which were composed in violation to [sic] federal constitutional standards.
“This matter was considered by the United States Magistrate pursuant to general order of assignment, who appointed counsel for the indigent petitioner and scheduled an evidentiary hearing. The Magistrate has filed his report recommending dismissal. His report is approved and confirmed and by reference made a part hereof.
“Based on a review of the entire file and evidence adduced at the evidenti-ary hearing, the Magistrate found that petitioner went to trial without making any objection to jury composition. Petitioner’s constitutional claim relative to the jury composition was waived by his failure to make timely pretrial objection. See: Florida Criminal Procedure, Rule 3.330, formerly Rule 1.300; Florida Statutes § 913.01; Florida Statutes § 905.05; Frazier v. State, 107 So.2d 16 (Fla.19 — ); State v. Silva, 250 [sic] So.2d 153 (Fla.1972). In view of the recent Supreme Court decision in the case of Davis v. United States, [411] U.S. [233], No. 71-6481, it is apparent that petitioner has waived his objection to the composition of the juries which indicted and convicted him.
“Accordingly, upon consideration of the report and recommendation of the United States Magistrate and upon the Court’s independent examination of the file, the petition for writ of habeas corpus is hereby dismissed.
“DONE and ORDERED at Tampa, Florida, this 11th day of May 1973.
Wm. Terrell Hodges
UNITED STATES DISTRICT
JUDGE”

(Record on Appeal, p. 23.) This appeal ensued.

We by-pass the “evidentiary hearing” which was aborted by the magistrate’s “Report and Recommendation,” because the magistrate ultimately did no more than is permitted by 28 U.S.C. § 2243 and the pertinent section of the Federal Magistrate Act, now appearing as 28 U.S.C. § 636(b)(3), as construed in Wingo v. Wedding, 1974, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed. 879, i.e., report and recommend “as to whether there should be a hearing.” The question before this Court is whether the district court erred in approving the magistrate’s report' and accepting his recommendation that the petition be dismissed. We reverse and remand for further proceedings consistent with this opinion.

Clearly the change of pace from the planned evidentiary hearing to outright dismissal was precipitated by the Supreme Court’s Davis decision, cited by the magistrate and by the district judge. That decision had preceded the magistrate’s recommendation by only three weeks. At that time it was not clear that the Davis decision had any applica-. tion to a state prisoner seeking federal habeas corpus. Arguably, jury discrimination claims by state prisoners continued to be controlled by the rule stated in such cases as the two now relied on by Van Eaton’s counsel, viz: Hamilton v. Watkins, 5 Cir. 1970, 436 F.2d 1323, and Harris v. Brewer, 8 Cir. 1970, 434 F.2d 166. That rule is more succinctly stated in the latter case at page 168:

“It has been settled law since Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), that a state prisoner who may have procedurally forfeited his right in the state courts to raise federal constitutional claims does not similarly forfeit his right in federal court, unless he has deliberately and knowingly waived the same. It is further well settled that whether or not a petitioner has ‘waived’ his right to raise a federal claim is a federal question to be decided by federal standards.”

It has now become settled law in the Fifth Circuit, whether or not in other Circuits, that, if a State has adopted a rule the same in effect as that applied in Davis then that rule should be applied by a federal court in considering a claim of discrimination in the composition of a state court grand jury or petit jury.

Rivera and Marlin, cited in footnote 6, supra, involved Florida state prisoners, and this Court in effect held the Florida rule applicable because the rule as then construed by the Florida courts embodied the same timeliness requirements as provided by Federal Rules of Criminal Procedure 12(b)(2) and applied in Davis, supra. That federal rule reads as follows:

“Defenses and Objections Which Must Be Raised. Defenses and objections based on defects in the institution of the prosecution or in the indictment or information other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the indictment or information to charge an offense shall be noticed by the court at any time during the pendency of the proceeding.”

The parts of that rule most pertinent to this case are those providing that (1) the motion required to be filed before trial “shall include all such defenses and objections then available to the defendant” (emphasis added); and (2) “the court for cause shown may grant relief from the waiver” (emphasis added). See Davis, supra, 411 U.S. at 243, 244, 93 S.Ct. 1577.

Van Eaton asserts that his failure timely to raise his jury discrimination claims is excusable for cause. The District Court did not inquire into the evidence regarding this “for cause” excuse, however. Since Van Eaton has sufficiently exhausted his state court remedies, Collier v. Estelle, 5 Cir. 1974, 488 F.2d 929, we remand to the federal District Court for an evidentiary hearing on the issue of whether the plaintiff-petitioner had “cause” for the delay in challenging the composition of the grand jury and of the petit jury. If, after such hearing, the District Court decides that Van Eaton has sustained his burden to show that he did not waive his constitutional objections, that court should, if necessary, take further evidence and determine whether Van Eaton’s federal constitutional rights have been violated. In any event, the District Court should enter an appropriate final judgment based on its findings of facts and its conclusions of law.

The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

      . The evidence on trial disclosed that Van Eaton shot and killed a man sitting with Van Eaton’s wife at the rear of an abandoned gas station. Van Eaton’s wife was wounded. She and Van Eaton are black. The victim was white.

      . The death sentence was later changed to life imprisonment.

      . Van Eaton’s appointed counsel was then permitted to withdraw and the Public Defender was appointed to represent him. Van Eaton had not attacked before trial the composition of the venire from which the grand jurors and petit jurors in his case had been drawn, but he did so in this post-conviction petition.

      . The witness Lorraine B. McNevin was Supervisor, Court Records Department for the Clerk’s Office, Clerk of the Circuit Court, Pi-nellas County, Florida.

      . Davis v. United States, 1973, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216.

      . Rivera v. Wainwright, 5 Cir. 1974, 488 F.2d 275; Marlin v. Florida, 5 Cir. 1974, 489 F.2d 702; Jones v. Henderson, 5 Cir. 1974, 494 F.2d 47; Newman v. Henderson, 5 Cir. 1974, 496 F.2d 896, reh. and reh. en banc den. Oct. 7, 1974; Morris v. Sullivan, 5 Cir. 1974, 497 F.2d 544, reh. and reh. en banc den. Oct. 11, 1974; see also Wells v. Wainwright, 5 Cir. 1973, 488 F.2d 522.

      . Without those provisions, it may be doubted whether the Congress could create such a conclusive presumption of waiver in federal habeas corpus proceedings. “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S.Const. Art. 1, § 9, cl. 2.

      . Van Eaton’s remedial exhaustion in the state courts was completed before the Florida Supreme Court held in Silva, supra, that the post-1966 Dade County juries were illegally constituted. This factor does not require us to dispatch Van Eaton to the Florida courts for another try, however. Francisco v. Gath-right, 1974, 419 U.S. 59, 95 S.Ct. 257, 42 L.Ed.2d 226.

      . Our court has held it permissible in state prisoner cases to show such “cause” in the federal court. Morris v. Sullivan, supra, 497 F.2d at 545; Wells v. Wainwright, supra, 488 F.2d at 523.


text:
    P. C. McCLOUD, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director of Corrections, State of Florida, Respondent-Appellee.
    No. 73-3408.
    United States Court of Appeals, Fifth Circuit.
    Feb. 27, 1975.
    Natalie Baskin, Miami, Fla. (court-appointed), for petitioner-appellant.

      Stephen V. Rosin, Asst. Atty. Gen., Miami, Fla., for respondent-appellee.
    Before RIVES, GEWIN and GOLDBERG, Circuit Judges.
   RIVES, Circuit Judge:

The decision of this appeal is controlled by Van Eaton v. Wainwright, 5 Cir. 1975, 508 F.2d 849, decided contemporaneously. McCloud was arrested on March 13, 1967, and has ever since been confined. The Dade County, Florida grand jury was selected in April, 1967, sworn in May, and on June 8 it returned an indictment charging McCloud with rape. On June 15, 1967, the court appointed counsel to represent McCloud on his trial. Counsel filed pretrial motions but no pretrial challenge was made to the composition of either the grand jury or the petit jury. The petit jury was selected after the appointment of counsel. On November 15, 1967, the jury found McCloud guilty as charged, but with a recommendation of mercy. Later the court sentenced him to life imprisonment. On June 3, 1969, the State District Court of Appeal affirmed the judgment and sentence. McCloud v. State, Fla.App., 223 So.2d 394. McCloud filed two pro se motions in the state trial court for post-conviction relief. The first was filed in November, 1969, and was denied on June 22, 1970. That motion" did not challenge the composition of the grand jury or of the petit jury. The second motion to vacate was filed on April 13, 1972, and moved for release “on the grounds that Negroes were systematically excluded from the grand jury, the trial jury were discriminatory against the movant,” among other grounds. The motion thereafter alleged at some length:

“The movant contends that his constitutional rights were violated and was denied due process of law and equal protection of the law when Ne-groes were systematically excluded from the Grand Jury during time that the movant was indicted. See:
“Scott v. Walker, 358 F.2d 561 (1966). Cobb v. Balkcom, 5th Cir. (1964), 339 F.2d 95. It has long been settled that a Negro defendant in a criminal case is entitled to indictment by a Grand Jury and trial before a traverse jury from which Negroes have not been arbitrarily and systematically excluded. A conviction cannot stand where such is extablished [sic] for it constitutes a denial of due process and of the equal protection of the law.”

This second motion to vacate was heard on May 30, 1972, supplemented on October 3, 1972, and denied by the state trial court on November 27, 1972. The judgment of denial was affirmed on May 1, 1973, by the District Court of Appeal, Third District, in a brief per curiam opinion. McCloud v. State, Fla.App., 277 So.2d 42.

On June 12, 1973, McCloud filed a pro se petition for habeas corpus in the United States District Court for the Southern District of Florida. His allegations as to the composition of the grand jury and of the petit jury are crude but sufficient to invoke federal jurisdiction. See 28 U.S.C. § 2242.

The pen and ink allegations made on the mimeographed form petition included the following:

“Negroes were systematically excluded from the grand jury. The trial jurys were selected and chosen in a discrimination [sic] manner.” (Record on Appeal, p. 3.)

The District Court on August 28, 1973, dismissed McCloud’s petition for habeas corpus without any evidentiary hearing.

There is a probability that the claimed defenses and objections as to the composition of the grand jury and of the petit jury were not available to McCloud before his trial, that the “jury discrimination was covert and undiscoverable” (Morris v. Sullivan, 5 Cir. 1974, 497 F.2d 544, 545) except by a more extensive investigation and study than was available to McCloud. The judgment is reversed and the ease is remanded for further proceedings consistent with this opinion and with the opinion in Van Eaton v. Wainwright, supra.

Reversed and remanded.

      . As developed on trial, both McCloud and the victim are black.

      . This Case illustrates the need for the well-established practice of giving a liberal construction to pro se habeas corpus pleadings. See authorities collected in Limmie West, III v. Louisiana, 5 Cir. 1973, 478 F.2d 1026, 1030.


author: KILKENNY, Circuit Judge:

text:
    T. J. FALGOUT BOATS, INC. and Insurance Company of North America, Appellants, v. UNITED STATES of America, the Department of the Navy, Appellee.
    No. 73-1755.
    United States Court of Appeals, Ninth Circuit.
    Dec. 27, 1974.
    F. T. Muegenburg, Jr., Ventura, Cal. (argued), of Heily, Blase, Ellison & Mue-genburg, Oxnard, Cal., for appellants.
    Paul Gary Sterling (argued), Admiralty & Shipping Section, Dept, of Justice, San Francisco, Cal., for appellee.
    Before KILKENNY and TRASK, Circuit Judges, and RICH, Judge.

       The Honorable Giles S. Rich, Judge, United States Court of Customs and Patent Appeals, sitting by designation.

   OPINION

KILKENNY, Circuit Judge:

This case was heard in the district court and is now before us on an agreed statement of facts, the germane portion of which reads:

“On August 12, 1968, a ship, the PACIFIC SEAL, a 299 gross tons ship owned by Falgout Boats, Inc., operating in navigable waters off the coast of California, was struck by a Sidewinder missile, which was released from a U. S. Navy airplane. The circomstanc-es [sic] of the incident are not fully known since the airplane crashed on this mission and the pilot was killed. The United States will offer no evidence to contest Plaintiffs’ allegations of negligence, set forth in Paragraph III of the Complaint. The final accepted joint survey made and signed by the U.S. Salvage Association surveyor, R. S. Ritchie, representing the United States Navy and Sidney G. Barnett, surveyor for the Insurance Company of North America and Falg-out Boats, Inc., accepted repair damages in the total sum of $7,743.59 as due to the damage caused by the missile. This amount, however, was exclusive of miscellaneous damage items, later accepted by the Navy surveyor as $770.00. The total damages attributable to this incident are therefore agreed to be $8,513.59.”
* * * * * *

Paragraph III of the complaint, mentioned in the agreed statement of facts, charges that the Navy pilot who released the Sidewinder missile conducted the flight with the express permission and consent of the appellee, negligently operated the aircraft, and negligently fired the missile which struck appellant Falg-out’s ship.

The lower court held that: (1) appellants’ exclusive remedy against the ap-pellee is under the Suits in Admiralty Act, 46 U.S.C. §§ 741-752, and (2) since more than two years elapsed from the date of the casualty to the filing of the complaint, appellants’ claim is barred by the Act’s two-year statute of limitations, 46 U.S.C. § 745. We affirm.

ISSUES

On appeal, appellants challenge both of the district court’s conclusions. They contend that their action lies under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), rather than under the Suits in Admiralty Act.

REMEDY

The Supreme Court has uniformly held that a maritime action may be maintained against the United States only under the Suits in Admiralty Act. Brady v. Roosevelt S.S. Co., 317 U.S. 575, 63 S.Ct. 425, 87 L.Ed. 471 (1943). Subsequent amendments to the Act, as amended September 13, 1960, 74 Stat. 912, have not altered the rule. United Continental Tuna Corp. v. United States, 499 F.2d 774 (CA9 1974).

Prior to the Supreme Court’s decision in Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), maritime jurisdiction was governed by the “locality rule” as recognized and defined in The Plymouth, 70 U.S. (3 Wall.) 20, 18 L.Ed. 125 (1865), a rule which applied admiralty jurisdiction whenever a maritime locality was involved. Executive Jet, upon which appellants rely, involved the crash of a commercial jetliner in Lake Erie while engaged in a flight wholly within the continental United States. There, the court annexed to the “locality rule” a requirement that the facts of the occurrence show “a significant relationship to traditional maritime activity.” 409 U.S. at 268,, 93 S.Ct. at 505. It held that admiralty jurisdiction was lacking despite the fact that the accident occurred in navigable waters. In so holding, it concluded that the mere fact the alleged wrong occurred or was located on or over navigable waters, was not in itself sufficient to turn a commonplace airplane negligence case into a “maritime tort.,” The Court observed that it was far more consistent with the history and purpose of admiralty to require, in addition to a maritime locality, that the occurrence bear a significant relationship to traditional maritime activity. The Court made it clear that it was not deciding whether an aviation tort could ever qualify for admiralty jurisdiction. Id. at 271, 93 S.Ct. 493.

Our problem is to decide whether the circumstances under which appellants’ damages occurred bear a significant relationship to traditional maritime activity.

In analyzing Executive Jet, the Fifth Circuit in Kelly v. Smith, 485 F.2d 520, 525 (CA5 1973), cert. denied 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974), suggested that in determining whether the wrong bears a significant relationship to traditional maritime activity, the court should look to the following factors: “ . . . the functions and roles of the parties; the types of vehicles and instru-mentalities involved; the causation and the type of injury; and traditional concepts of the role of admiralty law.” Accord: St. Hilaire Moye v. Henderson, 496 F.2d 973, 978 (CA8 1974). We adopt these factors as persuasive on our facts.

Unlike the aircraft in Executive Jet, the subject aircraft is by its very nature maritime. Without question, the release of the Sidewinder from the naval aircraft over navigable waters created a potential hazard to navigation, and the activities of the aircraft at the time were maritime in nature. The United States Navy exists, in major part, for the purpose of operating vessels and aircraft in, on, and over navigable waters. Its aviation branch is fully integrated with the naval service and, whether land-based or sea-based, functions essentially to serve in sea operations. 10 U.S.C. § 5012. Surely, it cannot be said that the naval plane’s activity over water in the instant case was entirely “fortuitous” as was the plane involved in Executive Jet. We seriously doubt if appellants would question the applicability of the Suits in Admiralty Act if the aircraft had been stationed on an aircraft carrier. The record is silent on this point. It is our studied conclusion that Executive Jet is clearly distinguishable and does not control on the facts before us.

Closely in point is Roberts v. United States, 498 F.2d 520 (CA9 1974), cert. denied 419 U.S. 1070, 95 S.Ct. 656, 42 L.Ed.2d 665 (1974). There, the claims grew out of the crash of a private cargo plane into navigable waters as it was approaching an airbase in Okinawa. The aircraft was engaged in transporting cargo between Los Angeles and Viet Nam, with Okinawa being merely one of a number of intermediate stopping points. We noted there that transoceanic transportation of cargo is recognized as a traditional maritime activity. We further noted that prior to the advent of aviation, such shipping could be performed only by waterborne vessels, just as here, before the birth of aviation, the firing at sea of explosive projectiles was performed only by waterborne vessels. After an exceptionally able discussion of the problem by the author and an exhaustive analysis of the pertinent authorities, statutes and amendments, it was held that the occurrence was intrin sically maritime in nature, was governed by the Suits in Admiralty Act, and, consequently, that an action could not be maintained under either the Federal Tort Claims Act or the Death on the High Seas Act, 46 U.S.C. §§ 761-768. An application of the logic employed in Roberts to the facts before us compels the conclusion that the activity of the Navy jet bore a significant relationship to traditional maritime activity and that exclusive jurisdiction of the claim rests within the perimeter of the Suits in Admiralty Act. The provisions of 10 U.S.C. § 5012, when read with Roberts, permits us to reach no other conclusion.

Another Ninth Circuit case in general support of our conclusion is Oppen v. Aetna Ins. Co., 485 F.2d 252 (CA9 1973), which involved the Santa Barbara Channel oil spill. There, the plaintiffs sought damages for injury to their maritime vessels and for interference with their navigation rights. We had no difficulty in distinguishing Executive Jet and in finding that the claims bore a significant relationship to the traditional maritime activity.

Also pertinent is United Continental Tuna Corp. v. United States, supra, a case involving a fishing vessel which was sunk by a United States Navy destroyer in Philippine waters. It was there held that an action could not be prosecuted under the Federal Tort Claims Act, where such an action was maintainable under the Suits in Admiralty Act. The 1960 Amendment was held not to change the exclusivity of the remedy.

Other authorities cited by the parties have received our attention. We do not discuss them because to do so would only add to the length of this opinion, without benefit to either bench or bar.

STATUTE OF LIMITATIONS

United Continental Tuna Corp. v. United States, supra, and Roberts v. United States, supra, are dispositive of this issue. Because appellants’ cause of action must be prosecuted under the Suits in Admiralty Act, and because the action was not commenced within the two-year period provided for in 46 U.S.C. § 745, the action cannot be maintained. The provisions of the section are jurisdictional and cannot be tolled. Roberts v. United States, supra, 498 F.2d at 527.

CONCLUSION

Consequently, on the facts of this case, no action can be maintained under the Federal Tort Claims Act and action under the Suits in Admiralty Act is barred by the two-year statute of limitations.

The judgment of the district court is affirmed.

      . Certain correspondence between appellants and appellee is attached to the statement.

      . “ § 5012. United States Navy: composition; functions

      (a) The Navy, within the Department of the Navy, includes, in general, naval combat and service forces and such aviation as may be organic therein. The Navy shall be organized, trained, and equpped primarily for prompt and sustained combat incident to operations at sea. It is responsible for the preparation of naval forces necessary for the effective prosecution of war except as otherwise assigned and is generally responsible for naval reconnaissance, antisubmarine warfare, and protection of shipping. [Emphasis supplied.]
      ib) All naval aviation shall be integrated with the naval service as part thereof within the Department of the Navy. Naval aviation consists of combat and service and training forces, and includes land-based naval aviation, air transport essential for naval operations, all air weapons and air techniques involved in the operations and activities of the Navy, and the entire remainder of the aeronautical organization of the Navy, together with the personnel necessary therefor.” [Emphasis supplied.]
      ******


author: HASTINGS, Senior Circuit Judge.

text:
    UNITED STATES of America ex rel. Jesse OWENS, Petitioner-Appellant, v. John J. TWOMEY, Warden, Illinois State Penitentiary, Joliet Branch, Respondent-Appellee.
    No. 74-1122.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 14, 1974.
    Decided Dec. 31, 1974.

      Gerald R. Turner, Milwaukee, Wis., for petitioner-appellant.
    William J. Scott, Atty. Gen., Donald Hubert, Thomas Connors, Asst. Attys. Gen., Chicago, 111., for respondent-appel-lee.
    Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and FAIR-CHILD, Circuit Judge.
   HASTINGS, Senior Circuit Judge.

A federal. district court denied, without an evidentiary hearing, the pro se petition for a writ of habeas corpus filed by a state court prisoner. The prisoner has appealed. We have elected to examine the underlying state court record in its entirety and determine the ultimate issues raised on their merits. This will require a rather detailed statement of the factual and procedural background of the underlying state court proceedings. The following narrative is fully supported by the record.

On the night of June 23, 1966, about 11:30 p. m., one Jesse Owens knocked on the door of an apartment occupied by Jimmy Lugo and his family in the City of Chicago. The family consisted of a large number of children, the youngest being one year old. One of the sons heard the knock and was falsely informed by the caller that he was a policeman. The boy reported this to his father who told him to admit the caller. The door was opened and Owens, not a policeman, entered with a drawn gun and demanded to know if the father, Jimmy Lugo, was a man named Gonzales. When told that no one by that name lived there, Owens again drew his gun and started searching the house. He pointed his gun at the one-year-old baby and threatened to shoot it. The mother became frightened and ran out the front door of the apartment followed by her husband and several of the older children. To no avail Owens ordered the mother to return. Except for several small children still in bed, the only other person remaining in the bedroom with the baby was the fourteen-year-old daughter, Lucy Lugo, dressed in her night clothes.

Owens grabbed Lucy by the arm and dragged her out the back way onto a porch and ordered her to jump to the ground where he had just alighted. She followed him as ordered. He took her with him by force into an alley behind the apartment.

In the meantime, the Lugos’ son ran into the street from the apartment and stopped a passing police car. He gave the law enforcement officer a description of Owens. The officer entered the apartment shortly after Owens had fled with the daughter Lucy.

During this time Owens forcibly took Lucy down the alley and on to Augusta Boulevard where he came upon a man, Raymond Goveia, who was parking his car and about to enter his home. Owens asked for a “lift” and Goveia inquired, “where to?” Owens then pulled out his gun and ordered Goveia to get back into his’ car in the driver’s seat and ordered Lucy to sit in the front seat beside the driver. Owens got in the back seat, pointed his gun to the back of Goveia’s head and ordered him to start driving the car around, saying, “Drive off and don’t try nothing funny, or I’ll blow your brains out.” Goveia replied, “Mister you can have my car, clothes, anything you want, but don’t get excited.”

The car proceeded in and out of alleys under demands by Owens. Owens asked Goveia if he had any tape, to which Gov-eia replied in the affirmative. Owens ordered Goveia to stop the car, and all three persons got out. Goveia produced some tape from the trunk of his car and handed it to Owens. After traveling through more alleys, Owens, holding the gun against the back of Goveia’s head, ordered him to stop again in an alley. All three persons got out of the car again and Owens gave Lucy the tape and ordered her to tape Goveia’s hands behind his back and to tape his mouth shut. After Owens said that he would kill Goveia if he was not taped tight around the wrists, Lucy put on more tape. They reentered the car; Owens ordered Goveia to lie on the floor of the back seat; Owens took the driver’s seat and ordered Lucy to sit beside him.

The car was again driven through alleys and Owens ordered Lucy to undress, and then she began to cry. Owens said to her, “You’re not cooperating with me. I’m going to have to kill you.” She undressed. Owens stopped the car and sexually assaulted her. Periodically thereafter, throughout the night, Owens would stop the car and sexually attack Lucy, perhaps ten times, although such succeeding acts of sexual intercourse were not successfully completed. Thereafter, under Owens’ orders, Lucy removed Goveia’s wallet from his back pocket and handed it and the money' in it (something more than $50) to Owens.

As dawn was approaching, Owens told them that the police would be looking for Lucy so he had to get them off the street. After two telephone calls from public phone booths, Owens told them he would take them to an apartment where his lady friend lived and told them to act friendly toward him. In the interim, he had Lucy wipe herself with a napkin taken from the glove compartment in the car. Also, Owens removed the tape which had been used to bind and gag Goveia. Goveia was permitted to sit erect in the back seat of the car, but with his hands up on top of the back seat.

About 6:00 a. m. they stopped and entered an apartment in Chicago where they were met by a woman, Marion Short. Owens was living there with Marion as his common-law wife. Goveia used the washroom under Owens’ supervision. Lucy sat on a bed. Goveia believed he was going to be killed and asked for a Bible, which Marion gave him. Owens began listening to radio programs and finally heard a program broadcast that a search was in progress for Lucy and her abductor. Marion accidentally bumped into Owens and felt a hard object and asked what it was. Owens pulled out the gun and told her he would have to use it against Lucy and Goveia. Marion begged him not to do that and to let them go free. She also refused to accept any of the money taken from the wallet and told him to return it to Goveia. During this time Marion referred to Owens as Jesse.

About 6:30 a. m. Owens finally decided to let them go free, saying he was sorry for what had happened. Marion left to go to work and Lucy and Goveia drove away in Goveia’s car. While driving home Goveia waved down a police car. Goveia and Lucy were taken to Lucy’s home where there were about 20 police squad cars. Lucy was then taken to Mount Sinai Hospital for an examination. This physical examination revealed a tear on the hymen a few hours old.

Goveia was transported to the police station where for an hour he told what had happened, gave a description of Owens and the location of the Short apartment. Later Goveia was returned to the apartment building and interrogated by the police. While there, the police located the janitor of the apartment building, James Hussion, who told them that Marion Short was renting the apartment. Subsequently, she admitted that she was living there with Owens.

Later, during the trial, it was stipulated that Owens’ fingerprint was the one taken from Goveia’s car and that a pair of Owens’ trousers and jockey shorts underwear were stained with blood.

Following a bench trial, Owens was convicted of the rape and aggravated kidnapping of Lucy Lugo and of the armed robbery and aggravated kidnapping of Raymond Goveia in the Circuit Court of Cook County, Illinois. Owens was sentenced to concurrent terms of not less than 30 nor more than 40 years in the Illinois state penitentiary on each offense. No appeal was taken from the convictions involving Goveia.

Owens’ judgment of conviction for the rape and aggravated kidnapping of Lucy Lugo was affirmed on appeal, People v. Owens, 133 Ill.App.2d 44, 272 N.E.2d 858 (1971). The court held that Owens was proved guilty beyond a reasonable doubt on the charge of rape and aggravated kidnapping and that the sentence imposed was not excessive. The Supreme Court of Illinois denied leave to appeal. Subsequently, Owens appealed to the Illinois Supreme Court from the judgment of the Circuit Court of Cook County, dismissing without an evidentiary hearing his amended petition filed pursuant to the Post-Conviction Hearing Act, Ill.Rev. Stat.1967, ch. 38, H 122-1 et seq. The Illinois Supreme Court held that the trial court did not err in denying Owens an evidentiary hearing, and affirmed. People v. Owens, 54 Ill.2d 286, 296 N.E.2d 728 (1973). There the affirmance and subsequent dismissal was grounded upon the merits of the unlawful search claim and harmless error. The court stated: “We do not consider the question of waiver and elect to review the record and decide the issue on the merits.” 54 Ill.2d at 290, 296 N.E.2d at 731.

At this juncture it should be noted that Owens was competently represented throughout the state court proceedings by counsel.

Pursuant to leave granted, Owens filed his pro se petition, in forma pauper-is, for a writ of habeas corpus in the United States District Court for the Northern District of Illinois, the Honorable James B. Parsons, Judge, presiding. The petition was fully completed in the form prescribed by the rules of the district court for persons in state custody. Owens also filed a supporting brief and argument.

On August 31, 1973, based on an examination of the habeas petition, without an evidentiary hearing, the district court denied Owens relief “on the grounds that he failed to exhaust his state judicial remedies and had not stated a claim upon which relief in the federal district court could be granted.” On January 15, 1974, the court below denied petitioner’s motions for rehearing and for a certificate of probable cause. The instant appeal followed.

We appointed competent, counsel to represent petitioner in this appeal and he has exercised due diligence in discharging this responsibility.

EXHAUSTION OF STATE JUDICIAL REMEDIES

The federal district court denied relief on the habeas petition, as indicated above, first “on the grounds that he failed to exhaust his state judicial remedies.”

As above set out, petitioner’s conviction for rape and aggravated kidnapping of Lucy Lugo was affirmed on appeal by the Illinois Appellate Court, People v. Owens, 133 Ill.App.2d 44, 272 N.E.2d 858 (1971). The questions there were limited to the sufficiency of the evidence and the excessiveness of the penalty. However, in his subsequent appeal to the Supreme Court of Illinois, People v. Owens, 54 Ill.2d 286, 296 N.E.2d 728 (1973), from the judgment of the Circuit Court of Cook County dismissing, without an evidentiary hearing, his amended petition filed pursuant to the Illinois Post-Conviction Act, supra, other issues were raised by petitioner and considered by that high tribunal. We quote from that opinion:

The allegations of violations of his constitutional rights with respect to which petitioner contends that he was entitled to an evidentiary hearing are (a) that his in-custody identification as the perpetrator of the crimes was made under impermissibly suggestive circumstances; (b) that a search of his apartment without a search warrant violated his constitutional rights and certain evidence thus obtained was the tainted fruit of the unlawful search; and (c) that certain erroneous rulings on the admissibility of evidence at his trial were not, beyond a reasonable doubt, harmless error. Id. at 287 — 288, 296 N.E.2d at 729.

Setting aside for the moment the merits of the search and seizure question, we revert to the exhaustion doctrine.

In the oft-cited and, on some propositions, bitterly disputed but surely historic opinion in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), certain basic principles seem to have been established. The court noted that under Section 2254 a state prisoner is barred from federal habeas corpus review of his conviction unless he “has exhausted the remedies available in the courts of the State” by any available procedure and then examined the provision’s legislative history. It held that, where on direct review of his conviction, a state prisoner’s claim of a federal constitutional right has been decided adversely to him by the state supreme court and an application to the Supreme Court for certiorari has been denied, that he has satisfied the state court exhaustion requirement. Id. at 446-450, 73 S.Ct. 397. Under such circumstances it is not necessary that he pursue in the state courts a collateral remedy based on the same evidence and issues. Id. at 447— 450, 73 S.Ct. 397. Section 2254 does not require repetitious applications to state courts for relief. Id. at 448 — 449, n. 3, 73 S.Ct. 397; Roberts v. LaVallee, 389 U.S. 40, 42-43, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967).

In a different context, Mr. Justice Brennan, speaking for the Court in Pic-ard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), after a succinct review of a parade of the Court’s prior holdings, concludes “that the substance of a federal habeas corpus claim must first be presented to the state courts.” Id. at 278, 92 S.Ct. at 513. In Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972), Mr. Justice Marshall, speaking for the Court in a different factual setting, noted that “not every state procedural default bars federal habeas corpus relief,” and that the exhaustion requirements “are limited in their application to those state remedies still open to the habeas applicant at the time he files his application in federal court,” citing Fay v. Noia, 372 U.S. 391, 434-435, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) and Picard v. Connor, 404 U.S. 270, 272 n. 3, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). 405 U.S. at 516, 92 S.Ct. 1048. And then, apropos the instant appeal, the Court said: “In this, case it appears that petitioner has met the requirements of the exhaustion rule, inasmuch as no direct appeal is presently available to him, and he has taken his claim for post-conviction relief to the highest state court.” Id. (Footnote omitted. Emphasis added.)

It is well settled that a basic consideration giving rise to the enactment and development of the exhaustion requirements was the desire to alleviate the wounds engendered by the authority given one federal district judge to set aside or otherwise infringe upon a state court conviction. Fay v. Noia, 372 U.S. 391, 419-420, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Furthermore, the issuance of the writ being a discretionary matter, the exhaustion requirement is not deemed to be jurisdictional. See United States ex rel. Curtis v. Warden of Green Haven Prison, 2 Cir., 463 F.2d 84, 86 (1972). This would seem to make the case at bar one where inter alia, it is “neither necessary nor appropriate to resolve the delicate question of federal-state comity in this instance but instead proceed to the merits.” Id.

There is authority for the proposition that the exhaustion requirement for federal habeas corpus applies only to direct state appeals, and not to collateral post-conviction relief. United States ex rel. Ross v. LaVallee, 2 Cir., 448 F.2d 552, 553-554 (1971). There the state prisoner had presented his claim to the state’s highest court and that court had refused to hear it. In the instant appeal, it is significant that after the affirmance of Owens’ conviction by the Illinois Appellate Court, he sought relief in the Supreme Court of Illinois and that court denied leave to appeal. The reasons for denying such relief are not relevant. The critical factor in a federal habeas corpus proceeding is that his claim was presented to that state court. And, as Ross notes, the exhaustion requirements do not apply to Owens’ postconviction hearing where the other issues herein-above set out were presented to and determined by the Illinois Supreme Court.

In support of the judgment of dismissal of petitioner’s habeas petition, the state now seeks to raise for the first time on appeal an issue not presented to the federal district court. We agree with the state that a new argument in support of a judgment on appeal may be presented. Dandridge v. Williams, 397 U.S. 471, 475 n. 6, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). The state now urges that the petition should have been dismissed on the ground that the petitioner failed to raise his search and seizure issue at the trial court or on direct review in the state courts. The state further argues that the petitioner’s failure to raise the issue was a matter of deliberate trial strategy since his defense was predicated on the contention that Lucy Lugo voluntarily consented to have sexual relations with him and, further, that Lucy and Goveia voluntarily agreed to go with him in Goveia’s car. Although petitioner agrees that his defense was based on consent, he says that his failure to raise the issue was not a matter of trial strategy, but was due to the fact that it was only after the trial that the issue was discovered. It is the state’s argument that there was a waiver of the defense of the exclusionary rule which should bar federal collateral attack under the authority of our recent holding in United States ex rel. Allum v. Twomey, 7 Cir., 484 F.2d 740 (1973).

We again observe that the Supreme Court of Illinois, in considering petitioner’s contentions arising from the allegedly unlawful search of his apartment and the People’s position that the error, if any, was waived by reason of the failure of trial counsel to move to suppress the unlawfully seized evidence, refused to consider the question of waiver and elected to review the record and decide the issue on the merits, People v. Owens, 54 Ill.2d 286, 290, 296 N.E.2d 728, 731 (1973).

In light of our review of the holdings hereinbefore set out based on the peculiar circumstances present in the case at bar, we choose to take a different course from that followed in Allum. Rather than posit our determination of the exhaustion of remedies problem on the doctrine of waiver found in Allum, and since we subsequently reach a result based on the merits of Owens’ claims, we have elected, as did the Illinois Supreme Court, to decide the case on the merits.

Based upon our consideration of the doctrine of the exhaustion of state court remedies, we find and hold that petitioner Owens exhausted such remedies and that the federal district court erred in holding to the contrary.

DID THE HABEAS PETITION STATE A FEDERAL CLAIM?

The district court dismissed petitioner’s federal habeas corpus petition on the additional ground that it did not state “a claim upon which relief in the federal district court could be granted.” It did not further elaborate on this holding.

At the outset, petitioner claims there was an illegal search of the apartment where he resided. He finds support in the holding of the Illinois Supreme Court in People v. Owens, 54 Ill.2d 286, 290, 296 N.E.2d 728, 731 (1973). There the court said: “An examination of the record shows that the search of the apartment in which petitioner resided was made without a search warrant and there is no evidence of exigent circumstances which would excuse obtaining a warrant.” Id. We agree. The state court record supports this finding.

Nevertheless, the court immediately-followed this with the statement: “The record, however, shows beyond a reasonable doubt that any evidence obtained in the illegal search was either not offered in evidence or, if admitted, was harmless.” 54 Ill.2d at 290, 296 N.E.2d at 731. We shall subsequently examine this conclusion in light of our own review of the state court record.

Petitioner asserts that the items unlawfully seized in the search of his apartment were a photograph of himself and a small booklet containing the work address of his girl friend, Marion Short. It necessarily follows, he contends, that these items had as their poisonous fruit the following evidence admitted at the trial: (a) the in-court identification testimony by Goveia, in that Goveia had previously viewed the illegally seized photograph of Owens, and (b) that the testimony of Marion Short was prejudicially tainted in that she was first located through the use of her work address from the illegally seized booklet. Petitioner makes the further contention (c) that his fingerprint on Goveia’s automobile and his blood-stained trousers were obtained as an incident of an illegal arrest, since the probable cause for his arrest was established by Goveia’s identification of petitioner’s illegally seized photograph.

The state contends, as the Illinois Supreme Court found, that the record clearly indicates that there was no evidence admitted at trial which was either seized at the apartment or was the fruit of the evidence which was seized.

The Supreme Court has held that the exclusionary rule has no application when the government learned of the evidence “from an independent source.” Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920).

In Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939), the Court recognized that as in Silverthorne, “the facts improperly obtained do not ‘become sacred and inaccessible,’ ” if knowledge of them is gained from an independent source. It put a gloss on its statement by saying: “As a matter of good sense, however, such connection [between illicit wire-tapping and the government’s proof] may have become so attenuated as to dissipate the taint.” Id.

Both parties here cite and rely upon Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In Wong Sun, the Court recognized and cited the independent source test established in Silverthorne Lumber Co. and the attenuated basis test laid down in Nardone. 371 U.S. at 487, 83 S.Ct. 407. It then added a third dimension, sometimes referred to as the inevitability test. It said:

We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Ma-guire, Evidence of Guilt, 221 (1959). Id. at 487-488, 83 S.Ct. at 417.

In short, as the state succinctly puts it, there have evolved three tests from Wong Sun, any one of which, when applicable, establishes that the controverted evidence is not fruit of the poisonous tree when: (1) the evidence was discovered by an independent source; (2) the evidence is sufficiently distant in causal connection from the illegal search and seizure so that the connection has become so attenuated as to dissipate the taint; or (3) the evidence inevitably would have been gained even without the unlawful search.

In United States v. Piet, 7 Cir., 498 F.2d 178, 181 (1974), our court, speaking through Senior Circuit Judge Castle, held that when an independent basis existed to support an F.B.I. agent’s suspicion that the goods were being stolen at a facility prior to a first allegedly unlawful search, this did not taint a second search and seizure. See also, United States v. Hoffman, 7 Cir., 385 F.2d 501, 504-505 (1967), cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288 (1968). These cases establish that we have recognized the independent source test.

Our court has also come to recognize and apply the attenuated basis test. United States v. Balistrieri, 7 Cir., 403 F.2d 472, 475-477 (1968), vacated and remanded on other grounds, 395 U.S. 710, 89 S.Ct. 2032, 23 L.Ed.2d 654 (1969). In a carefully considered review of Silverthorne, Nardone and Wong Sun, supra, our then Chief Judge Castle wrote that certain evidence submitted by the government was not “come at by exploitation” of the information obtained in the illegal searches and seizures, but “by means sufficiently distinguishable to be purged of the primary taint.” 403 F.2d at 476. As to other evidence showing a causal connection between the electronic eavesdropping and the government’s proof, it was found that “ ‘such connection has become so attenuated’ . as to dissipate the taint.” Id. at 477. See also United States v. Ruffin, 7 Cir., 389 F.2d 76, 79-80 (1968); United States v. Hoffman, supra, 385 F.2d at 504-505.

We have not had occasion to pass directly on a case involving the so-called inevitability test. However, the citation and quotation from Maguire in Wong Sun, supra, 371 U.S. at 480, 83 S.Ct. 407, quoted by our court in Balistrieri, Ruffin and Hoffman, supra, leave little doubt that we would not do other than to follow this lead.

We now apply these tests to the facts established by the state court record in this case.

It was clearly shown that Goveia was in the company of Owens from about midnight until 6:30 a. m. on the morning of June 23, 1966, immediately following Owens’ departure from the Lugo apartment. He was face to face with Owens during the forced ride in Goveia’s car from the time Owens first pointed a gun at him and ordered him to drive away, and also when Owens forced Lucy Lugo to bind and gag him, and as he listened to Lucy’s cries during the rapes committed on her. Finally, Goveia was with Owens for the trip to the Short apartment and the stay there until his release after Marion’s pleas. These facts were corroborated by Lucy and Marion Short as previously shown. Thus, it is apparent that even if the photograph did give Goveia some sense of an image of Owens, it could not have affected his in-court identification of Owens in any significant manner. The in-court identification was the product of an independent source and not the fruit of a poisonous tree.

In a similar vein, it was clearly established that Marion Short was living with Owens and witnessed the early morning visit of Goveia and Lucy at the apartment. Marion said in the presence of all that she was leaving to go to work. Her name and place of residence were known at that time. Goveia testified he could recall the location and address of the apartment. He gave a full account of the details to the police prior to the illegal search. The police learned from the janitor of the building where Owens and Marion lived. All this was made known to the police and Marion’s identity was clearly established prior to the search, notwithstanding that her work address was subsequently obtained from the booklet seized during the search. It thus appears that the effective cause of the police establishing the identity of Marion Short were these leads. It was inevitable that her identity would have been revealed without her work address in the booklet. Both the independent source test and the inevitability test have been satisfied here. Marion Short’s identity and testimony were not the fruit of the poisonous tree.

It is also clear that the police had obtained sufficient facts to establish probable cause for the arrest of Owens, aside from and prior to the information obtained as a result of the illegal search. This should satisfy the admission of the fingerprint taken from Goveia’s car. It was stipulated in evidence that Detective Patrick Angelo obtained the bloodstained pants and jockey shorts from Owens. In Owens’ brief filed in the federal district court he states that his pants and underwear were seized by Detective Angelo at the Maxwell Street station upon his arrest. Since the arrest was valid, the introduction of these items was permissible as evidence obtained incidental to such arrest. Neither the fingerprint nor the pants and underwear were tainted by the search of the Marion Short apartment. Such items of evidence were not the fruit of the poisonous tree.

We need not further prolong this extended discussion.

For the foregoing reasons the order of the district court dismissing the instant habeas corpus petition without a hearing is affirmed.

Affirmed.

      . The relevant part of Title 28, U.S.C. § 2254, as amended Nov. 2, 1966, Pub.L. 89-711, § 2, 80 Stat. 1104, reads:
      (a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
      (b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.