text:
    ESTATE of James H. LUMPKIN, Jr., Deceased. Christine T. HAMILTON, Executrix, Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant.
    No. 72-1298.
    United States Court of Appeals, Fifth Circuit.
    Feb. 14, 1973.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Tax Div., U. S. Dept of Justice, Lee H. Henkel, Jr., Acting Chief Counsel, Edward D. Robertson, K. Martin Worthy, Chief Counsel,
    1. R.S., Gary R. Allen, Tax Div., Dept, of Justice, Washington, D. C., for respondent-appellant.
    Rudy M. Groom, Melvin M. Engel, Houston, Tex., for petitioner-appellee.
    Before GEWIN, THORNBERRY and CLARK, Circuit Judges.
   GEWIN, Circuit Judge:

This federal estate tax ease squarely presents the question of whether an employee who under the provisions of a group term life insurance policy is given nothing more than the right to alter the time and manner of enjoyment of the proceeds possesses an “incident of ownership” with respect to that policy so that at his death the value of the proceeds must be included in his gross estate under § 2042 of the Internal Revenue Code of 1954. Decedent, James H. Lumpkin, Jr., died on March 15, 1964. After his estate’s tax return was received, the Commissioner of Internal Revenue assessed a deficiency because the value of the proceeds from a group term life insurance policy covering Lumpkin’s life were not included in his gross estate. Lumpkin’s estate brought this action in the United States Tax Court to contest the Commissioner’s deficiency determination. The Tax Court decided that § 2042 does not require the value of the proceeds to be included in decedent’s gross estate, and the Commissioner has appealed. We reverse.

At the time of his death Lumpkin was an employee of the Humble Oil & Refining Company (hereinafter Humble) and as such was covered by a non-contributory group term life insurance policy issued to Humble for the benefit of selected employees by the Equitable Life Assurance Society of the United States. According to the terms of the policy, which were communicated to covered employees in a booklet Humble had prepared and distributed, two kinds of benefits were payable to survivors of covered employees who died while serving Humble, but of these only one is relevant to our inquiry, the “Contingent Survivors Group Life Insurance Coverage.”

Benefits receivable under “Contingent Coverage” consisted of a lump sum payment of $200, to be paid immediately upon the employee’s death, plus a series of monthly payments, each in the amount of half the employee’s normal monthly compensation, to continue over a period the duration of which depended upon the number of full years of service the deceased employee had completed. The “Contingent Coverage” benefits were to be paid to one of the following classes of qualifying “preference relatives” in descending order of priority: (1) spouse, (2) children under 21 years of age or permanently incapable of self-support, and (3) parents. The order in which the employee’s survivors succeeded to the right to receive the proceeds from the “Contingent Coverage” was irrevocably fixed; under no circumstances could the employee redetermine who the beneficiaries would be or the order of priority among them. Thus upon the employee’s death his spouse was to receive the lump sum and the monthly installments; if there were no surviving spouse, the payments would be divided equally among any surviving members of the class next in priority, i. e. children. If there were no children, the payments would be divided among members of the group lowest in priority, i. e. parents. Similarly, if the spouse were to die before all earned payments had become due, the remaining installments would be divided among any surviving children or, if none, among any surviving parents. Payments were to cease as soon as there were no more survivors from the list of qualifying preference relatives; as.a result it was never certain that all monthly installments earned by the employee would actually have to be disbursed.

We now come to the “Optional Modes of Settlement” provision exercisable in connection with the “Contingent Coverage” benefits, the provision said by the Commissioner to bring § 2042 into play. One part of the optional settlement provision entitled the employee to elect, without the consent of any other person, to have any monthly installments becoming payable to his spouse in effect reduced by half. The insurer would then accumulate the unpaid balance of each monthly installment with interest into a fund, and, in the event all monthly installments earned by the employee were paid to the spouse, the fund would be used to continue reduced monthly payments to the spouse until it was exhausted. If the spouse were to die before the fund was consumed, the amount remaining in it would be paid to her estate in a lump sum. But in no event would her estate receive more than what was in the accumulated fund. If the spouse were to die before all monthly installments earned had become due, the remaining installments would still be paid to surviving members of the next priority of preference relatives as previously outlined. Thus this part of the optional settlement provision enabled the insured employee to extend the period of time over which monthly payments would be made to his spouse and consequently to reduce them in amount. It did not empower him to divest her of any portion of the proceeds to which she (or her estate) was entitled under the terms of the preference relative provisions.

In addition to offering the employee this specific optional mode of settlement, the optional settlement provision entitled him, upon obtaining the approval of his employer and the insurer, to establish any other scheme he might devise for the disbursement of the proceeds once they became payable to a particular relative. The exercise of this more general part of the optional settlement provision was also limited in that under it the employee still could not rearrange the order in which his preference relatives succeeded to the right to receive monthly installments and hence could not divest any preference relative of the share of the proceeds to which he was entitled. The optional settlement provision concluded with the stipulation that under it the employee had no right to designate beneficiaries either by request or by assignment but that he could assign all rights given to him by the policy.

Before proceeding any further we should delineate the exact nature of the power that was conferred upon Lumpkin by the provision entitling him to elect optional modes of settlement, the only provision in the entire policy which gave him any control over the proceeds. By exercising his rights under this provision Lumpkin could not benefit himself or his estate, nor could he designate who the beneficiary of the proceeds would be. What the optional settlement provision did give him the right to do was to vary the time and manner in which the proceeds would be paid to the policy-designated beneficiaries after his death. For instance, if he exercised the option in the provision specifically dealing with his spouse’s settlement, she would be denied early enjoyment of approximately one half of each monthly installment, and her eventual enjoyment of the accumulated fund would be conditioned upon her living past the date when the last monthly installment became due. Similarly by exercising the other option in the provision, which contained no limitation as to the form of settlement that could be arranged but which required the consent of the employer and the insurer, Lumpkin could extend or diminish the period over which payments were to be made to the spouse or any of the other beneficiaries selected by the policy, consequently either enlarging or reducing them in amount. In short the right to elect optional modes of settlement gave Lumpkin a degree of control over the time when the proceeds of the policy would be enjoyed and nothing more.

§ 2042 is the statute in the federal estate tax scheme under which the value of life insurance proceeds is taxed to the estate of the insured. With respect to proceeds receivable by beneficiaries other than the insured, it is triggered only if at death the insured possessed any “incidents of ownership” in the insurance. When the “incidents of ownership” term first appeared as part of an amendment to § 2042’s predecessor, no definition accompanied it; however, Congress, in its committee reports, did include an illustrative list of the kinds of rights comprehended by the phrase. Among these were the right of the insured to the economic benefits of the insurance, the right to change beneficiaries, the righ to surrender or cancel the policy, the right to assign the policy, the right to pledge the policy for a loan, and others.

From this list it can be inferred that by using the “incidents of ownership” term Congress was attempting to tax the value of life insurance proceeds over which the insured at death still possessed a substantial degree of control. This inference is strengthened if we recognize that by enacting § 2042 Congress intended to give life insurance policies estate tax treatment roughly equivalent to that accorded other types of property under related sections of the Code. Under §§ 2036 (transfers with retained life estate), 2037 (transfers taking effect at death), 2038 (revocable transfers), and 2041 (powers of appointment) substantial control is often the touchstone by which the determination is made that in-elusion is necessary. Of course Congress knew that control can be, and often is, exercised by one not having complete legal and equitable title — hence the term “incidents of ownership.” As the First Circuit has said: “The very phrase ‘incidents of ownership’ connotes something partial, minor, or even fractional in its scope. It speaks more of possibility than of probability.”

The question before this court is whether the right to alter the time and manner of enjoyment, a fractional right to be sure, affords its holder the kind of control over the proceeds that will make it an “incident of ownership” within the meaning of § 2042(2). The Tax Court thought not. In reaching this decision it relied on an earlier Board of Tax Appeals case which to our knowledge is the only one in which the question has been considered. In Billings v. Commissioner the decedent had a right to elect optional modes of settlement similar to that conferred upon Lumpkin by the group term policy in this case; the Tax Court’s predecessor held that the right to determine when the proceeds should be paid to the beneficiary was too limited and insignificant to amount to control over the proceeds.

To offset the impact of this 1937 decision, the Commissioner relies upon two relatively more recent Supreme Court decisions. In Lober v. United States the decedent had created three separate irrevocable trusts, one for the benefit of each of his three minor children. Although the trust instruments gave each child a “vested interest” under state law so that if one of them had died after creation of the trusts respective interest would still have passed to his estate, the decedent as trustee had retained the right to turn all or any part of the principal trusts over to the beneficiaries at any time he saw fit. Thus Lober had forsaken the right to determine who the beneficiaries of the trust would be but had retained the right to determine when the trust property would be enjoyed. The court held that retention of this right rendered the value of the trust property includible in Lober’s gross estate under the forerunner to § 2038; that section, as does § 2038, required the inclusion of the value of all property that the decedent had previously transferred in trust but over the enjoyment of which he had retained the power to “alter, amend, revoke or terminate.” In reference to Lober’s right to alter the time of enjoyment, the court said: “ ‘ [A] donor who keeps so strong a hold over the actual and immediate enjoyment of what he puts beyond his own power to retake has not divested himself of that degree of control which § 811(d)(2) requires in order to avoid the tax.’ ”

In essence United States v. O’Malley, the second case relied upon by the Commissioner, is not substantially different from Lober. The decedent Fabrice created several irrevocable trusts for the benefit of different members of his family. As one of the trustees he was empowered to pay the trust income to the beneficiaries or to accumulate it and add it to the principal, in which event the beneficiaries would be denied the privilege of immediate enjoyment and their eventual enjoyment would be conditioned upon their surviving the termination of the trusts. Thus Fabriee also had the right to alter the time and manner of enjoyment; however, the control afforded him by this right was somewhat less than Lober had possessed because it extended to the trust income only and not the principal which was in-alterably committed to pass to the beneficiary (or his estate) when the trust terminated. Nevertheless the Supreme Court held that O’Malley’s power over the time and manner of enjoyment was significant and of sufficient substance to activate the predecessor to § 2036 which required inclusion whenever the transferor of property in trust had retained the right to “designate” who was to enjoy it.

Quite clearly the lesson to be drawn from Lober and O’Malley is that the right to alter the time and manner of enjoyment does give its holder a substantial degree of control, at least insofar as §§ 2036 and 2038 are concerned. In view of the Congressional intention to make the estate tax treatment of life insurance roughly analogous to that bestowed upon other types of property, somewhat of an anomaly would be created if power over the time and manner of enjoyment was said to impart enough control to activate §§ 2036 and 2038 yet not enough to make it an “incident of ownership” within the context of § 2042.

The only significant distinction between §§ 2036 and 2038 on the one hand and § 2042 on the other is that under the former there must be an incomplete transfer by the decedent whereas under the latter a transfer is unnecessary. Thus under §§ 2036 and 2038 the decedent must have retained some control over property he initially transferred while under § 2042 it is enough if at death the decedent merely possessed an incident of ownership, the means by which he came into possession being irrelevant This distinction does not, however, suggest that there is a further difference among these sections of the estate tax as to the degree of power a decedent must hold over the property in question — whether it be life insurance or some other form of wealth — in order to render its value includible in his gross estate.

These sections are all part of a Congressional scheme to tax the value of property transferred at death, whether the decedent accomplishes the transfer by will, by intestacy, or by allowing his substantial control over the property to remain unexercised until death so that the shifting of its economic benefits to the beneficiary only then becomes complete. It is the lapse of substantial control at death that triggers their application. Lober and O’Malley teach that one endowed with power over the time of enjoyment has the kind of substantial control Congress intended to reach by enacting these sections. Because the control it affords is substantial, we conclude that a right to alter the time of enjoyment such as that conferred upon Lumpkin by the optional modes of settlement provision in this case is an “incident of ownership” under § 2042(2). Lumpkin could easily have assigned the right to elect optional settlements, thereby completely divesting himself of control over the insurance proceeds and avoiding inclusion of their value within his gross estate. Since he did not, his estate must suffer the consequences.

The Tax Court erroneously held that at his death Lumpkin possessed no incidents of ownership with respect to this group term life insurance policy. Its judgment is vacated, and the case is remanded with instructions to enter judgment for the Commissioner.

Vacated and remanded.

      . 26 U.S.C. § 2042. § 2042 provides in pertinent part that:
      “The value of the gross estate shall include the value of all property—
      (2) Receivable by other beneficiaries. —To the extent of the amount receivable by all other beneficiaries as insurance under policies on the life of the decedent with respect to which the decedent possessed at.his death any of the incidents of ownership, exercisable either alone or in conjunction with any other person. it

      . The Tax Court’s decision is reported at 56 T.C. 815 (1971).

      . “Qualifying” is defined in the booklet as those “preference relatives” either living with the covered individual or receiving support from him to the extent of at least 20% of the amount the covered individual was last receiving as an employee or annuitant.

      . Actually if this option were elected the payments would be further reduced by the amount of any Social Security benefits available to the spouse.

      . The complete terms of the optional settlement provision are set out in the booklet as follows:
      Optional Modes of Settlement A covered individual may elect that only a portion of each monthly installment becoming payable to his spouse in accordance with the foregoing provisions of this Part 2 be paid on its due date. Such portion shall be equal to 25% of the covered individual’s monthly normal compensation reduced in the case of a covered annuitant by the total amount of benefits available (other than a lump sum payment) to his spouse and any children in her care under the U.S. Social Security Act as it reads at the time the covered annuitant dies, provided, however, that the portion so payable shall not be less than 10% of the covered annuitant’s monthly normal compensation. This election shall be made by the covered individual during his lifetime by proper written request submitted to the Society on a form furnished by or acceptable to the Society.
      * * * * *
      In the event the election pursuant to the foregoing shall have been made, the balance of each monthly installment payable to the spouse shall be held by the Society and accumulated as a fund, with interest credited at the effective rate authorized from time to time by the Board of Directors of the Society but at an effective rate of not less than 2%% per annum, subject to the further provisions hereof. Such interest shall be credited at the end of each month on the average balance remaining in the fund after the first day of such interest period. In the event the spouse receives the maximum number of monthly installments provided with respect to the covered individual by the foregoing provisions of this Part 2, the fund shall, except as hereinafter provided, be applied to continue monthly installments to the spouse, each in an amount determined on the same basis as the portion of the monthly installment paid to the spouse on its due date under the election, until the fund is exhausted, the first additional monthly installment becoming payable one month after the last monthly installment becomes due. In the event the spouse dies at any time while there is an amount in such fund, such amount shall be payable without further accrual of interest in one sum to the executors or administrators of such spouse’s estate.
      An election other than that specified above may be arranged during the lifetime of a covered individual with respect to monthly installments becoming payable to the covered individual’s preference relatives if the covered individual, the employer by whom employed and the Society mutually agree thereon.
      * * * * :!:
      Benefits payable under this policy with respect to any covered individual shall be payable only to the person or persons entitled thereto pursuant to the provisions of Part 1 and Part 2 of the section entitled “Group Life Insurance Benefits.” A covered individual shall have no right to designate a person or persons to receive any benefits payable under this policy either by request, assignment or by any other means, but may assign or transfer all rights he may possess under this policy. Once such an assignment or transfer has been made the assignee or transferee shall have the sole right to exercise all of the rights under this policy granted the covered individual. Benefits payable under this policy with respect to any covered individual shall not be assigned by any of his beneficiaries, and, to the extent permitted by law, shall not be subject to garnishment, attachment, execution or levy of any kind.

      . The Revenue Act of 1942, ch. 619, § 404, 56 Stat. 798, amending the Internal Revenue Code of 1939, § 811(g).

      . H.R.Rep. No. 2333, 77th Cong., 2d Sess. 163 (1942) and S.Rep. No. 1631, 77th Cong., 2d Sess. 235 (1942). The Treasury must have relied on this legislative history in promulgating its regulation under § 2042(2) because in them a list virtually identical to that set forth in the Committee reports is used to demonstrate what rights are considered “incidents of ownership.” Treas.Reg. § 20-2042-1 (c) (2) (1958).

      . See United States v. Rhode Island Hospital Trust Company, 355 F.2d 7, 10 (1966).

      . That Congress had such an intent with respect to § 2042 has been recognized in Skifter v. Commissioner, (2d Cir. 1972), 468 F.2d 699.

      . United States v. Rhode Island Hospital Trust Company, 355 F.2d 7, 10 (1966).

      . B.T.A. 1147 (1937), acq. 1937-2 Cum. Bull, 3. Although it has since been withdrawn, the Commissioner’s acquiescence in the Billings case remained outstanding at the time taxpayer filed its return and at the time the litigation commenced, and at oral argument the taxpayer argued that its justifiable reliance upon this acquiescence estopped the Commissioner from reversing his position retroactively. But it is well-established law that the Commissioner has plenary power to modify, amend or revoke his acquiescences and to make suit changes retroactively as to all taxpayers or, in the exercise of his discretion, certain classes of taxpayers. Dixon v. United States, 381 U.S. 68, 85 S.Ct. 1301, 14 L.Ed.2d 223 (1965).

      . 346 U.S. 335, 74 S.Ct. 98, 98 L.Ed. 15 (1953).

      . Internal Revenue Code of 1939, § 811 (d) (2).

      . Lober v. United States, 346 U.S. 335, 337, 74 S.Ct. 98, 100, 98 L.Ed. 15 (1953).

      . 383 U.S. 627, 86 S.Ct. 1123, 16 L.Ed. 2d 145 (1966).

      . The district court held that the original corpus of the trusts was includible in the estate, and that holding was not challenged on appeal.

      . Internal Revenue Code of 1939, § 811(c) (D (B)(ii).

      . See Commissioner v. Noel, 380 U.S. 678, 85 S.Ct. 1238, 14 L.Ed.2d 159 (1965) and Karagheusian v. Commissioner, 23 T.C. 806 (1955), rev’d on other grounds 233 F.2d 197 (2d Cir. 1956). But cf. Skitfer v. Commissioner, No. 72-1445 (2d Cir., 1972) 468 F.2d 699 and Fruehauf v. Commissioner, 427 F.2d 80 (6th Cir. 1970).


source: Caselaw Access Project

author: GOLDBERG, Circuit Judge:

license: Public Domain

text:
    UNITED STATES ex rel. Brodie Byron DAVIS, Petitioner-Appellant, v. C. Murray HENDERSON, nWarden of Louisiana State Penitentiary, Respondent-Appellee.p
    No. 72-2611.
    United States Court of Appeals, Fifth Circuit.
    March 8, 1973.

      James J. Gleason, III, New Orleans, La., for petitioner-appellant.
    William J. Guste, Jr., Atty. Gen. of La., Baton Rouge, La., Gilbert T. Brown, Jr., Asst. Dist. Atty., J. Carl Parkerson, Dist. Atty., Monroe, La., for respondent-appellee.
    Before GEWIN, GOLDBERG and DYER, Circuit Judges.
   GOLDBERG, Circuit Judge:

This is an appeal from a denial of a petition for a writ of habeas corpus. Finding that petitioner’s allegations concerning the composition of the grand and petit juries that indicted and tried him should be re-investigated in light of Peters v. Kiff, 1972, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83, we vacate in part and remand.

Petitioner, Brodie Byron Davis, a white man, was found guilty of murder on November 21, 1958, in the Fourth Judicial District Court for Ouachita Parish, Louisiana, and the jury fixed his penalty at death. His conviction and sentence were affirmed by the Louisiana Supreme Court. State v. Davis, 237 La. 577, 111 So.2d 778 (1959). A subsequent petition for state habeas corpus relief alleging that petitioner was entitled to a full, free transcript of his trial for use on appeal was found insufficient to warrant the exercise of the supervisory jurisdiction of the Louisiana Supreme Court. State ex rel. Davis v. Henderson, 252 La. 475, 211 So.2d 333 (1968).

Petitioner first filed the application for federal habeas corpus relief that is the subject of this appeal on March 20, 1968. On August 19, 1971, after conducting an evidentiary hearing, the District Court permanently enjoined the State of Louisiana from executing petitioner because the petit jury that convicted him had been selected in a manner that violated Witherspoon v. Illinois, 1968, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. The District Court, however, rejected petitioner’s claim that he was entitled to a new trial. United States ex rel. Davis v. Henderson, D.W. D.La.1971, 330 F.Supp. 797. On this appeal, petitioner urges that the District Court erred in rejecting his petition because: (1) evidence seized pursuant to an illegal arrest had been introduced at his trial; (2) he had been denied the use of a full, free transcript of his trial for the purpose of appeal, and therefore he had been unable to prove that he had been denied a fair trial under Louisiana law by the prosecutor's improper references to his failure to take the stand; (3) the petit jury that convicted him had been selected in violation of Wither-spoon, denying him a fair trial; and (4) the grand and petit jury that indicted and convicted him were not selected from a cross-section of the community. We find that petitioner’s first three contentions are without merit but that his fourth point requires a remand for further proceedings.

I

Petitioner contends that the District Court erred in rejecting his petition because evidence seized pursuant to an illegal arrest had been introduced at his trial. After examining the record before us, we find that petitioner’s contention is without merit.

Petitioner next asserts that at his trial the prosecutor made improper remarks to the jury concerning petitioner’s failure to testify at his trial and that he has been unable to prove that this violation of Louisiana law occurred only because he was not provided with a complete transcript of his trial despite the fact that he was an indigent and was unable to pay for a full transcript. This Court has previously discussed and approved Louisiana’s procedure of providing only a transcript of testimony explicitly preserved by the reservation of a bill of exceptions. Mack v. Walker, 5 Cir. 1966, 372 F.2d 170. Petitioner failed to make such a bill of exceptions and thus cannot be heard to complain that he has not been provided a full, free transcript to prove that the prosecutor made improper remarks.

We also find untenable petitioner’s contention that the exclusion from the jury that convicted him of all persons conscientiously opposed to capital punishment warrants the setting aside of his conviction. Witherspoon v. Illinois, supra,, held that no death penalty imposed by a jury so constituted could be carried out, but the Supreme Court refused to “. . . announce a per se constitutional rule requiring the reversal of every conviction returned by [a jury selected in violation of its standards] . . . . ” 391 U.S. at 518, 88 S.Ct. at 1775, 20 L.Ed.2d at 782. Furthermore, the Court stated in Witherspoon that “[t]he data adduced by the petitioner . . . are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt.” 391 U.S. at 517, 88 S.Ct. at 1774, 20 L.Ed.2d at 782 (footnotes omitted). Petitioner has not presented this Court with convincing evidence that federal due process has been violated by the finding of guilt made by a jury constituted in violation of Witherspoon v. Illinois and his point must fail.

II

Petitioner’s final contention is that his conviction cannot stand because the grand and petit juries that indicted and convicted him were not selected from a cross-section of the community. Petitioner raised this issue for the first time at his federal habeas corpus hearing when he presented statistical evidence that the following conditions existed during the period when he was 'convicted:

(1) 32.2% of the population of Ouach-ita Parish was non-white;
(2) 96% of all prospective jurors were also registered voters; and
(3) total voter registration was 22,-755, of which only 776, or less than 4%, were blacks.

Petitioner urges that these figures support an inference that blacks were systematically or arbitrarily excluded from jury service.

The District Court held:

Here there is no evidence of systematic exclusion or inclusion or invidious discrimination of any kind. Accepting arguendo that the allegations are true with respect to the type of persons selected for jury service, we find here no deprivation of constitutional rights in the jury selection process and the State’s composition of the Grand and Petit Juries in this case was not constitutionally infirm. It should be especially noted that Davis is Caucasian, as were the jurors.

United States ex rel. Davis v. Henderson, 330 F.Supp. at 801. The District Court rendered this opinion on August 19, 1971, apparently relying on previous Fifth Circuit decisions such as Mosley v. Smith, 5 Cir. 1968, 404 F.2d 346, and Peters v. Kiff, 5 Cir. 1971, 441 F.2d 370, in denying the claim of petitioner, a white man, that his constitutional rights were violated by an indictment and conviction rendered by unconstitutionally selected grand and petit juries. Subsequent to the District Court opinion, however, the Supreme Court reversed our decision in Peters v. Kiff.

In Peters v. Kiff, 1972, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83, a white man sought for the first time on his ha-beas corpus petition to have his conviction set aside because blacks had been systematically excluded from the grand and petit juries that indicted and convicted him. The Fifth Circuit, relying on Mosley v. Smith, supra, held that a white man’s constitutional rights are not violated by the exclusion of blacks from grand and petit juries. Peters v. Kiff, supra, 441 F.2d at 371. The Supreme Court reversed, holding that a white man has standing to challenge the arbitrary exclusion of blacks from the grand and petit juries that indicted and convicted him, and that if such allegations are proved, the indictment and conviction rendered by such unconstitutionally selected juries cannot stand.

In reviewing the record, we are not fully convinced that blacks were arbitrarily or systematically excluded from the grand and petit juries that indicted and convicted petitioner. The statistics presented by petitioner do, however, speak louder than the mere denial by the state that there was systematic exclusion of blacks from grand and petit jury venires. See Brooks v. Beto, 5 Cir. 1966, 366 F.2d 1; Black v. Curb, 5 Cir. 1970, 422 F.2d 656; Muniz v. Beto, 5 Cir. 1970, 434 F.2d 697. If the grand and petit jury lists were chosen substantially from voting lists or other compilations not representative of a cross-section of the general community, petitioner’s claim merits relief. Rabinowitz v. United States, 5 Cir. 1966, 366 F.2d 34; Mayfield v. Steed, E.D.Ark.1972, 345 F.Supp. 806, aff’d, 8 Cir. 1973, 473 F.2d 691. Petitioner’s presentation of adequate proof of his claim was undoubtedly encumbered by the District Court’s correct interpretation of our subsequently overruled prior decisions. Therefore, in light of the State of Louisiana’s assertion at oral argument that subsequent to petitioner’s trial a federal examiner was appointed to oversee the voting lists of Ouachita Parish, and in light of the statistics that petitioner did present concerning the composition of the grand and petit juries, we think that petitioner should be given an opportunity to more fully develop his contention.

Petitioner is entitled to a full hearing concerning his contention that the grand and petit juries that indicted and convicted him were improperly constituted. However, we think it clear that petitioner’s evidentiary hearing should most appropriately be conducted in the Louisiana Courts. Petitioner has not presented this claim to the Louisiana Courts either on appeal or by habeas corpus petition. The procedure advocated in Spencer v. Wainwright, 5 Cir. 1968, 403 F.2d 778, is fully applicable to the case at hand:

“In the interest of comity we must as to all of the issues now asserted, put the fact finding and law finding responsibility squarely on the [State] Courts where, initially at least, it belongs. We do not intimate even a possible whisper of a hint of a suggestion as to how these contentions will be resolved. However, in the setting of this case, they are extremely serious and warrant appropriate judicial inquiry and determination. The remedy prescribed and open-mindedly administered by the [State] Courts will afford [petitioner] an opportunity to present his contentions adequately and fully develop them in evidentiary hearings as required.”

403 F.2d at 781; see also Williams v. Henderson, W.D.La.1971, 330 F.Supp. 795. Of course, if after exhausting his state remedies, petitioner remains dissatisfied, he “can [then] return to the Federal Court for its inescapably independent judgment on federal issues.” Peters v. Rutledge, 5 Cir. 1968, 397 F.2d 731, 741; Spencer v. Wainwright, supra, 403 F.2d at 782.

Petitioner’s statistics here may be only facially probative of his contention that blacks were arbitrarily or systematically excluded from Ouachita Parish grand and petit jury venires, and we claim no cybernetic finality for them. However, the statistics do have sufficient coloration to warrant a thorough examination to determine if they are more than skin deep. , They may be explained, but not ignored. The dismissal of the writ of habeas corpus is therefore affirmed in part and vacated in part, and the District Court is directed to follow the procedures it adopted in Williams v. Henderson, supra.

Affirmed in part, vacated in part, remanded with instructions.

      . Petitioner’s application had been delayed by various difficulties, which are discussed in the opinion of the District Court appearing at 330 F.Supp. 797.

      . The State of Louisiana does not appeal from the District Court’s grant of injunction relief.

      . Petitioner does not contend that the prosecutor’s reference violated the federal law as enunciated at that time since petitioner’s trial occurred prior to Griffin v. California, 1965, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, which forbids reference to a defendant’s failure to testify in his own behalf, but which is non-retrospective. Tehan v. United States, 1966, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453. Petitioner does contend, however, that because Louisiana law at the time of the trial forbade such prosecutorial references, State v. Bentley, 219 La. 893, 54 So.2d 137 (1951), the failure of the State to provide him with a complete transcript with which to prove the existence of the alleged remarks denied him equal protection of the law under Griffin v. Illinois, 1956, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891.

      . Petitioner argues, however, that Louisiana law mandates a new trial when an individual is convicted by a jury selected in a manner violative of Witherspoon, State v. Turner, 253 La. 763, 220 So.2d 67 (1969), because such a jury denied a defendant a fair and impartial trial. State v. Benjamin, 254 La. 49, 222 So.2d 853 (1969). We find that this issue is now controlled by State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971), and that in the light of that case, petitioner’s contention is without merit.

      . The evidence concerning the racial composition of the voter registration lists was submitted subject to an objection that race was not an issue because petitioner did not have standing to challenge the exclusion of blacks from the grand and petit juries.

      . Petitioner also contends that the grand and petit juries that indicted and convicted him were improperly constituted because individuals of higher economic and social classifications were overrepresented on the grand and petit jury venires. Without reaching the constitutional dimension of petitioner’s claim, we hold that the statistics adduced by petitioner are insufficient to support a contention of arbitrary or systematic economic discrimination.


author: WILLIAM E. MILLER, Circuit Judge.

text:
    CUYAHOGA METROPOLITAN HOUSING AUTHORITY, Plaintiff-Appellee, v. Richard M. HARMODY et al., Defendants-Appellants. CUYAHOGA METROPOLITAN HOUSING AUTHORITY, Plaintiff-Appellee, v. CITY OF CLEVELAND et al., Defendants-Appellants.
    Nos. 72-1686, 72-1687.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 14,1972:
    Decided Feb. 14, 1973.

      Milt Schulman, Schulman & Schulman, Cleveland, Ohio, William R. Van Aken, Richard 0. Horn, Cleveland, Ohio, for defendants-appellants; Henry Du-Laurence, Cleveland, Ohio, on brief, for appellants.
    Walter C. Kelley, Jr., Cleveland, Ohio, for plaintiff-appellee; Fred J. Livingstone, of Kelley & McCann, Cleveland, Ohio, on brief, for plaintiff-appellee.
    Before WEICK, PECK and MILLER, Circuit Judges.
   WILLIAM E. MILLER, Circuit Judge.

The Cuyahoga Metropolitan Housing Authority (CMHA) instituted this action in the court below to enjoin the City of Cleveland from adopting a proposed ordinance which would have the effect of repealing a prior ordinance of the city authorizing it to enter into a Cooperation Agreement with CMHA. The prior ordinance provided for the development and administration by CMHA of 2500 dwelling units for persons of low income in the City of Cleveland. The action also sought to enjoin the city from cancelling the Cooperation Agreement executed pursuant to the prior ordinance. Federal jurisdiction was invoked under 28 U.S.C. § 1331(a), the complaint alleging the requisite jurisdictional amount and specifically asserting that the proposed ordinance, if adopted, would be violative of the contracts clause, Article I, Sec. 10 of the Federal Constitution and the due process clause of the Fourteenth Amendment, as well as certain provisions of the Ohio Constitution and statutes. The plaintiff’s application for a temporary restraining order was denied on March 6, 1972. Thereafter, with the permission of the district court, plaintiff filed an amended complaint alleging that the City of Cleveland, after the denial of the temporary restraining order, had adopted on March 27, 1972, Ordinance 392-72 specifically repealing the prior Ordinance 836-7.1 which had authorized the city to enter into the Cooperation Agreement, and cancelling the Agreement itself which had been duly executed by the contracting parties on May 17, 1971. The amended complaint also predicated jurisdiction upon 28 U.S.C. § 1331(a), alleging the requisite jurisdictional amount and pleading violations of the same federal and state constitutional provisions and laws as the original complaint, except that the amended complaint also alleged that the actions taken by the City of Cleveland were violative of the Supremacy Clause. (Article VI of the Constitution of the United States).

Following a full hearing, the district judge filed and entered an elaborate memorandum opinion, Cuyahoga Met. Housing Auth. v. Cleveland, 342 F.Supp. 250 (N.D.Ohio, 1972), in which he concluded that Ordinance 392-72, which sought to repeal the prior ordinance and to cancel the Cooperation Agreement, was null and void. He determined that the Cooperation Agreement was a valid and subsisting contract. The defendants were permanently enjoined from any further proceedings or actions in violation of or interference with the plaintiff’s rights under the Agreement. The ultimate conclusion reached by the district court was predicated upon a number of grounds, but its opinion focused primarily upon a finding that Ordinance 392-72, which sought to repeal the prior ordinance and to cancel the Cooperation Agreement, constituted an impairment of the obligation of a valid contract and thus was in violation of Article I, Sec. 10 of the Federal Constitution.

The city, in opposition to this view, argues that Ordinance 392-72 was a valid exercise of the reserved police power of the city and was not in violation of the contract clause or any other provision of federal or state law. For the reasons stated below, we are of the opinion, in the context of the present case, that the city, having entered into the Cooperation Agreement under a valid ordinance enacted pursuant to the provisions of both federal and state laws, was without power to abrogate the prior ordinance or to cancel the Cooperation Agreement.

Before discussing the legal foundation for our conclusion some additional facts should be stated. As the district court found from undisputed evidence, after the formal execution of the Cooperation Agreement in May, 1971, CMHA, in reliance upon the Agreement, engaged in considerable activity to effectuate a plan to provide dwelling units in the City of Cleveland for persons of low income. It developed plans for 2,500 units over a two and one-half year period. Construction was to proceed in five separate phases which would eventually result in the development of 2,000 family units and 500 elderly units. In order to obtain financial assistance from the Federal government under the National Housing Act, it applied to the Department of Housing and Urban Development (HUD) for a program reservation of 500 units. This request was duly approved by HUD. All of the 500 units in the first phase were designed for single family scattered units to be built under the traditional Turnkey method of construction. It appears, however, that the original plans and approvals were changed so that at the time of the hearing below 150 units were to be constructed under a Turnkey acquisition program. In order to meet the demands for development of the 2,500 units, CMHA hired an additional planner and real estate officer; it created a new position of Deputy Director; and it assigned additional staff members to accomplish the program’s development. It formulated criteria to be forwarded to proposed Turnkey developers and obtained HUD’s approval thereof. In addition, it placed legal advertisements inviting proposals for the development of the 500 Turnkey units. Proposals from ten developers were received by CMHA for 509 units. A considerable amount of time and money were devoted by the CMHA staff to the evaluation of the proposals. It further appears that the HUD staff also spent considerable time and effort in evaluating the proposals, after the CMHA staff had tentatively approved some one hundred proposed sites. Substantial time was also devoted by CMHA, its staff and Board, and by HUD in evaluating the financial and construction aspects of the various Turnkey proposals. As of the time of the hearing below, the CMHA Board had approved plans for approximately 71 sites in all respects and had agreed to enter into development programs therefor. These proposed programs had all been sent to HUD for funding by amendments to the existing Annual Contributions Contracts. Approvals, however, have been withheld by HUD because of the attempt by the City of Cleveland to abrogate the Cooperation Agreement and to withdraw its approval of the program. The proof shows that CMHA expended approximately $45,000 in the development and planning of the 500 scattered units as the first stage of construction under the 1971 Agreement. This money will not be refunded to CMHA unless the Cooperation Agreement is upheld. It appears further from the findings of the district court that federal funds amounting to approximately 62.5 million dollars will be withheld from CMHA, thus preventing it from carrying out its statutorily mandated purpose of providing persons of low income with decent, safe, and sanitary housing in the City of Cleveland.

Congress, in the United States Housing Act, 42 U.S.C. § 1401 et seq., has declared the National Housing policy of the country:

It is declared to be the policy of the United States to promote the general welfare of the Nation by employing its funds and credit, as provided in this chapter, to assist the several States and their political subdivisions to alleviate present and recurring unemployment and to remedy the unsafe and insanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of low income, in urban, rural nonfarm, and Indian areas, that are injurious to the health, safety, and morals of the citizens of the Nation. In the development of low-rent housing it shall be the policy of the United States to make adequate provision for larger families and for families consisting of elderly persons. It is the policy of the United States to vest in the local public housing agencies the maximum amount of responsibility in the administration of the low-rent housing program, including responsibility for the establishment of rents and eligibility requirements (subject to the approval of the Authority), with due consideration to accomplishing the objectives of this chapter while effecting economies. 42 U.S.C. § 1401.

The statute provides an elaborate scheme to effectuate these objectives, primarily by means of financial assistance to local units of government. However, by the express terms of the Act, 42 U.S.C. § 1415(7) (b), federal assistance in the form of annual contributions or contracts for loans, other than preliminary loans, to local public housing agencies shall not be made “unless the governing body of the locality involved has entered into an agreement with the public housing agency providing for the local cooperation” required by the federal statute. It is also required by the federal statute that federal financial assistance shall not be forthcoming unless the local public housing agency has demonstrated “a need for such low rent housing which is not being met by private enterprise.” 41 U.S.C. § 1415(7) (a).

In order to further the objectives of the national policy in Ohio, the legislature of that state has enacted numerous provisions. The state’s policy is declared in unambiguous terms:

“It is hereby declared that it is necessary in the public interest to make provisions for housing families of low income and to provide for the elimination of congested and unsanitary housing conditions which exist in certain areas of this state and which are a menace to the health, safety, morals, welfare, and reasonable comfort of the citizens of this state.” Ohio Rev.Code Ann. § 3735.26 (Page 1971).

A State Board of Housing is provided for and vested with wide supervisory powers. Ohio Rev.Code Ann. § 3735. 01 (Page 1971). The State Board, upon a determination of need, is given authority to create metropolitan housing authorities for metropolitan areas. Ohio Rev.Code Ann. § 3735.27 (Page 1971). It was under the authority of this provision that the CMHA was created for the City of Cleveland. By § 3735.31 of the Ohio Revised Code, Annotated, the metropolitan housing authorities constitute bodies corporate and politic with a wide range of powers. These include the conventional powers to sue and be sued, but in addition specific powers are conferred for the authorities to determine what areas constitute slum areas and to prepare plans for housing projects therefor, and to acquire property by lease, gift or by eminent domain and other methods. They are specifically authorized to accept grants or other financial assistance from the federal government “for or in aid of any housing project within [their] territorial limits,” and “[to] enter into such . . . agreements as are necessary, convenient or desirable.” Ohio Rev.Code Ann. § 3735.27 (Page 1971). Nothing appears in either the federal statute or in the Ohio legislation which could support either directly or by reasonable implication the proposition that a city, having validly declared the need for federal assistance for low rent housing and having executed with the local housing authority a Cooperation Agreement, could thereafter under its police power cancel the Agreement and withdraw from the program. It appears to us that the police power claimed on the part of the City of Cleveland in this case, if it should be upheld, would cause the state and national plans and policies with respect to low rent housing to rest upon a most tenuous basis — subject to frustration as the result of the vagaries of local politics or at the whim of local governing bodies.

We are of the opinion that the policies underlying the national and state legislation under which the Cooperation Agreement in this case was made and entered into necessarily protect the Agreement against cancellation at the mere will of the city. The Agreement was manifestly designed to effectuate national and state purposes of great importance and the police power of a municipality cannot be invoked to interfere with their accomplishment. Such police power as the City of Cleveland possessed as to the particular subject matter was exhausted to the extent of its commitment after it found a need for low rent housing and entered into a solemn agreement with CMHA to obtain federal assistance.

The conclusion we have reached is particularly applicable in this case inasmuch as CMHA in reliance upon the Cooperation Agreement engaged in substantial activity and incurred a considerable expense. The Agreement provides, in our opinion, the only means by which it may be validly rescinded or revoked by the city, absent, of course, the application of some general principle of contract rescission which we do not find to be present in this case.

Since we find as a matter of law that the city, at least in the context of this case, did not have the right under the applicable state and federal housing laws to withdraw from the program or to cancel the Cooperation Agreement, we find it unnecessary to explore the issue as to whether the action taken by the city was in violation of the contract clause of the Federal Constitution.

While we have been unable to find any federal authority directly in point, we are in full agreement with the reasoning of the Supreme Court of California in Housing Authority v. City of Los Angeles, 38 Cal.2d 853, 243 P.2d 515 (1952). In that case the California Supreme Court held that under the federal statute with respect to low rent housing and similar provisions of the California statutes, the City of Los Angeles, having entered into a Cooperation Agreement, could not thereafter rescind or cancel it. The following language of the opinion is particularly apposite:

In enacting the Housing Authorities Law and the Housing Cooperation Law the legislature did not take from the city all power to act in connection with housing projects under the statute. The city was given discretionary power to determine initially the need for the housing authority to function and to give approval of a proposed project. The city was also vested with discretionary powers to be exercised pursuant to the cooperation agreement which is required under the federal act. 42 TJ.S.C.A. Sec. 1415(7)(b). But having taken the initial discretionary action to bring the housing authority into operation and having approved a project and entered into a cooperation agreement, there was nothing left to be done by either contracting party but to perform administratively whatever was necessary to carry the agreement into effect. Kleiber v. City, etc., of San Francisco, supra, 18 Cal.2d 718, 724, 117 P.2d 657; Housing Authority v. Superior Court, supra, 35 Cal.2d 550, 558, 219 P.2d 457.

Other issues are presented on appeal. We have carefully considered them and find them to be without merit. Our disposition of the case renders moot certain motions filed with this Court and not heretofore disposed of.

Affirmed.

      . There was a single action below but on appeal two numbers have been assigned because of some differences in the issues as between certain defendants, as will be noted. We treat all issues here as on one appeal.

      . Pursuant to Rule 65(a) (2), Federal Rules of Civil Procedure, the district court consolidated the hearing on the preliminary injunction with the hearing on the merits. He then, pursuant to the same authority, advanced the case for an early hearing. We do not find in the context of the case that there was any abuse of discretion on the part of the district court in permitting the plaintiff to drop from the amended complaint the members of the Citizens Committee and the city clerk as parties defendant, or in his refusal to permit the attorneys who represented three councilmen in their individual capacities to participate in the preparation and conduct of the trial. In this connection it should be pointed out that the hearing was an expedited one and that the attorneys for the Citizens Committee, as well as the attorneys for the three councilmen, were permitted to participate at the hearing as amicus curiae. Further, we think it is clear from the record that the interests of the City of Cleveland were properly represented by the city’s counsel (through its law department) and that these procedural rulings of the district court were well within the range of his permissible discretion. While the rulings are questioned on appeal, we do not deem it necessary to discuss them in detail. Although at the time of the hearing no formal answers had been filed on behalf of any of the defendants the crucial issues had been fully explored and we have no doubt wore clearly understood by the participating parties. It is not unusual to proceed with a hearing on an application for injunctive relief, particularly where, as here, the hearing has been properly expedited, before the issues have been developed by formal pleadings.

      . The district court clearly had jurisdiction under the claims set forth in the original and amended complaints. The requisite jurisdictional amount was alleged as well as violations of specific provisions of the Federal Constitution. The claims asserted were, in our view, not frivolous or insubstantial and jurisdiction was thus conferred on the district court pursuant to 28 U.S.C. § 1331(a). Since the complaints properly invoked federal jurisdiction on the basis of substantial federal questions, we are free to dispose of the case upon a federal or a state ground, or upon both. Cf. Silver v. L & N R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1945).

      . Indeed in the present case it appears that the Ordinance which sought to cancel the Cooperation Agreement was enacted soon after the city administration of Cleveland was substantially changed by a recent election.

      . Pursuant to the Charter of the City of Cleveland an initiative petition was duly addressed to the City Council proposing that there be submitted to the electors of the city a proposed ordinance which would undertake to cancel the Cooperation Agreement entered into between the city and CMHA, as authorized by Ordinance No. 836-71, enacted May 10,1971. Instead of submitting the proposed ordinance to the electors, the City Council adopted the proposed ordinance No. 392-72 on March 27, 1972. Thus, the 1971 Ordinance was repealed and the Cooperation Agreement was canceled without Council’s giving any ground or reason for such cancellation and repeal. It was only after the injunction action was commenced that any claim of misunderstanding or mistake was made.
      At the hearing in the district court an attempt was made by counsel for amicus curiae to offer evidence as to the reason for the cancellation, namely, that a committee of the council which negotiated the 1971 ordinance with the CMHA understood that the housing units would be built only after their proposed location would be presented to and approved by the City Council. The district court rejected such testimony and a proffer was made.
      This evidence would conflict with the provisions of the Cooperation Agreement. No charge of fraud was made in the district court. We do not consider, therefore, any issue whether the enactment of the ordinance and the execution of the Cooperation Agreement were induced by fraud practiced on the city by CMHA, or by mistake.


text:
    Thomas A. DONELON, Charles J. Eagan, Jr., et al., Plaintiffs-Appellants, v. NEW ORLEANS TERMINAL COMPANY and Federal Railroad Administration of the Department of Transportation, Defendants-Appellees.
    No. 73-1546.
    United States Court of Appeals, Fifth Circuit.
    March 12, 1973.
    Rehearing Denied April 4, 1973.

      Nathan Greenberg, Roy Price, Parish Atty., Parish of Jefferson, Gretna, La., for plaintiffs-appellants.
    Benjamin Slater, Walter J. Suthon, III, New Orleans, La., for New Orleans Terminal Co.
    Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., for Federal Railroad.
    Before GEWIN, GOLDBERG and DYER, Circuit Judges.
   GOLDBERG, Circuit Judge:

This is an appeal from the granting of a federal injunction prohibiting plaintiffs-appellants, various officials of the Parish of Jefferson, Louisiana [hereinafter the Parish Officials], from proceeding with a state court suit in which they were attempting to obtain injunc-tive relief against the allegedly unsafe practices of defendant-appellee, the New Orleans Terminal Company [hereinafter the Railroad]. The Railroad filed a counterclaim in a related federal suit, which was also brought by the Parish Officials, and asked for a declaratory judgment that the Parish Officials were utterly without jurisdiction, power, or authority to prescribe, establish, or enforce standards and regulations for the maintenance and repair of the Railroad’s roadbeds and tracks. The United States District Court granted the Railroad’s motion for partial summary judgment as to the request for declaratory relief, certified that there was no just reason for delay in the entry of a final judgment regarding the partial summary judgment, see Rule 54(b), F.R.Civ.P., and issued a preliminary injunction against the Parish Officials pursuing their state court suit while the federal action continued. The only issues presently before us are (1) whether the granting of the partial summary judgment was proper, and (2) whether in-junctive relief was appropriate in light of the Anti-Injunction Act, 28 U.S.C.A. § 2283. For the reasons stated herein, we affirm the trial court’s holding on both points.

Although the procedural history of this controversy is unusually lengthy and complex, the importance of that history to our holding justifies our setting out the operative occurrences in some detail.

August U, 1970: The Jefferson Parish Council was concerned about the fact ..that two train derailments had occurred within the parish in the space of thirty days. The Council met and passed a resolution to initiate legal action to correct the allegedly dangerous conditions of railroad tracks, roadbeds, and other facilities in the parish.

October 16, 1970: The Federal Railroad Safety Act of 1970, 45 U.S.A. §§ 421-441, became effective.

October 27, 1970: The Parish Officials filed suit in Louisiana state court seeking injunctive relief requiring “proper repair and maintenance” of the New Orleans Terminal Company's tracks and roadbeds and enjoining all use of the tracks until repaired.

November 19, 1970: The New Orleans Terminal Company removed the action to federal court pursuant to 28 U.S.C.A. § 1441.

January U, 1971: The federal court remanded the action to the state court.

January 15, 1971: The Railroad petitioned the Secretary of Transportation to conduct an inquiry into the condition of the Railroad’s trackage, roadbed, and other facilities in Jefferson Parish and to declare them to be in safe and proper condition. The Railroad alleged in its petition that the Federal Railroad Safety Act of 1970, particularly § 203 thereof, 45 U.S.C. § 432, conferred authority on the Secretary of Transportation to conduct such an inquiry and to issue the requested report. The Parish Officials filed exceptions with the Secretary of Transportation objecting to any investigation being held at the Railroad’s request and urging that the petition be dismissed.

January 21, 1971: The Federal Railroad Administration of the Department of Transportation assumed jurisdiction of the controversy and conducted an inspection of the Railroad’s facilities in Jefferson Parish.

February 19, 1971: The Railroad filed jurisdictional exceptions to the state court proceedings, alleging that federal jurisdiction was exclusive and that even under Louisiana law the Parish Officials were improper parties to bring such a suit.

March 16, 1971: The Fedéral Railroad Administration issued a report, F. R.A. Pet. No. 25 [hereinafter the Report], declaring that “this matter properly comes within the scope of the Federal Railroad Safety Act of 1970,” setting forth detailed findings regarding the conditions of the Railroad’s facilities in Jefferson Parish, and concluding that the trackage was properly maintained and was in a safe and suitable condition for daily operations.

April 2, 1971: The Parish Officials filed the instant suit in federal court. The petition was captioned “Petition for Review of an Order of an Administrative Agency of the United States," but it named as defendants both the Federal Railroad Administration and the Railroad. The suit basically sought a determination that the Federal Railroad Administration had no jurisdiction to act as it did, that the Administration denied the Parish Officials due process of law by refusing to grant them an adversary hearing before issuing the Report, and that the Report was null and void.

May 19, 1971: The Railroad answered the federal petition and counterclaimed for a declaratory judgment that (1) the Parish Officials had no jurisdiction to prescribe or enforce rules and regulations relating to the safety of operations of a railroad operating in interstate commerce, and (2) the Report was valid and binding.

October 16, 1971: Pursuant to the statutory mandate of § 202(e) of the Federal Railroad Safety Act of 1970, 45 U.S.C. § 431(e), the Federal Railroad Administration adopted comprehensive federal “Track Safety Standards,” 36 Fed.Reg. 20336-343, 49 C.F.R. § 213.1-213.241.

November 5, 1971: The Railroad filed a motion in the federal action for partial summary judgment. In essence, the Railroad asked for a judgment that the area of establishing and enforcing railroad track safety standards was totally preempted by federal law and that the Parish Officials were totally without jurisdiction, power, or authority to establish or enforce railroad safety standards.

December 15, 1971: The federal court granted the Railroad’s motion for partial summary judgment. Shortly thereafter, the state court set a hearing date as to the Parish Officials’ state suit for injunctive relief against the Railroad.

January 21, 1972: The Railroad returned to federal court and asked for a preliminary injunction enjoining the Parish Officials from proceeding with their state court suit. After certifying the partial summary judgment under Rule 54(b), F.R.Civ.P., the United States District Court entered an order that “[T]he granting of a preliminary injunction against the prosecution of [the state court] suit ... is necessary to protect the jurisdiction of this Court and the Department of Transportation, and to protect and effectuate the [partial] judgment in favor of New Orleans Terminal Company. . . . ” The court then issued the injunction restraining the Parish Officials from taking any further steps against the Railroad other than by continuing its suit for judicial review of the Report.

We note at the outset of our analysis that there are two distinctive features about this case. First, this is an appeal from only a partial summary judgment, which was made final, and therefore appealable, by a Rule 54(b) certification. The entire federal court case has not yet been finally decided below — the action for review of the Report of the Federal Railroad Administration is continuing to be litigated. Furthermore, the orders entered to date by the district court clearly indicate that the court intends to re-examine the injunction against the state court proceedings at the time a final judgment is entered regarding the review of that Report. Secondly, appellants’ posture on this appeal is perhaps unique. Appellants sought to have the state court settle the controversy — they filed the original suit in state court, and when the Railroad removed it to federal court, appellants were successful in obtaining a remand back to the state court. Had the matter ended there, the federal court would not have become involved in the dispute, for a remand order is not reviewable. But appellants were not content to leave the entire case in state court. Apparently fearing that the Railroad could successfully use the Federal Railroad Administration’s Report as a “defense” to the state suit, appellants themselves invoked the jurisdiction of the federal court by bringing suit to attack the Report. By naming the Railroad as a party defendant in that action, appellants called upon the federal court to resolve the differences between' themselves and the Railroad. Their complaint is with the manner in which the federal court resolved the dispute they themselves asked it to resolve.

I. THE PARTIAL SUMMARY JUDGMENT

The basic thesis underlying the district court’s granting of the partial summary judgment is that a federal regulatory scheme has pre-empted the field of railroad safety to the exclusion of whatever interest in regulating railroad safety these individuals might otherwise have had outside the Act. We are in complete agreement with that conclusion, and we are fortified in reaching that result by the fact that we have a clear declaration of Congressional intent on that point to guide us:

“The Congress declares that laws, rules, regulations, orders, and standards relating to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement. A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce.”

45 U.S.C. § 434.

The meaning of the Congressional declaration is clear. The ultimate goal of the Act is to establish nationally uniform control of railroad safety, but the statute is not iron-clad. The Act specifically authorizes a narrow spectrum of deviation from national uniformity, and the issue here is whether appellants’ state court suit falls within one of the permissible exceptions.

The first statutory “exception,” which appears in the second sentence of § 434, is clearly inapplicable. Regulations covering the precise subject matter of the state court suit have been enacted, 36 Fed.Reg. 20336-343, 49 C.F.R. § 213.1-213.241, and those regulations are comprehensive in scope and detail.

Nor can the second “exception,” which appears in the final sentence of § 434, be said to envision this particular action. Three tests must be met if a state regulation is to be justified under the second “exception”:

(1) the state regulation or standard relating to railroad safety is necessary to eliminate or reduce an essentially local safety hazard, see Washington v. Chicago, M., St. P. & P. RR., 1971, 79 Wash.2d 288, 484 P.2d 1146, appeal dismissed, 404 U.S. 804, 92 S.Ct. 108, 30 L. Ed.2d 36 (fire hazards along railroad rights-of-way);
(2) the local measure is not incompatible with any federal measure; and
(3) the local measure does not unduly burden interstate commerce.

We need not and do not decide whether those tests are here met, because in any event meeting those three conditions justifies only State action. This case is supported by United Gas Pipeline Co. v. Terrebonne Parish Police Jury, 1970, 319 F.Supp. 1138, aff’d, 5 Cir. 1971, 445 F.2d 301. That case concerned the Natural Gas Pipeline Safety Act of 1968, 49 U.S.C.A. § 1671-1684, which provided a similarly limited “exception” for “Any state agency.” Id. § 1672(b). The Railroad Safety Act, however, speaks of an exception for “States,” and we do not .have before us an attempt by the State of Louisiana to regulate railroad safety; rather, we have before us individual officials of a parish government. Their remedy against unsafe railroad practices must fit within the borders of the federal Act and the enumerated qualifications and exceptions thereto.

We do not purport to suggest at this time that the State of Louisiana, acting through its Attorney General, could not bring this same common-law suit to enjoin unsafe railroad practices. Nor do we intimate here that the Louisiana legislature, or some duly delegated agency acting for the State, could not establish standards under § 434’s second exception. Lastly, we do not reach the issue of the extent to which the Act pre-empts State standards such as the common-law tests that appellants apparently seek to vindicate. See Napier v. Atlantic Coast Line RR., 1926, 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432. None of those issues are now before us, and we hold only that these individual officials are without authority under the Federal Railroad Safety Act of 1970 to require the Railroad to meet any safety standard beyond those provided for in the national Act.

II. THE TEMPORARY INJUNCTION AGAINST STATE COURT PROCEEDINGS

Having decided that the district court correctly entered a judgment that appellants are without power to require the Railroad to meet any non-federal safety standards, we must next determine whether it was appropriate for the United States District Court to issue an injunction against further state court proceedings. The Railroad urges that the preliminary injunction was proper under either of two exceptions to the Anti-Injunction Act, 28 U.S.C.A. § 2283, which provides as follows:

“A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”

First, the Railroad says that this injunction is needed in aid of the federal court’s jurisdiction and to protect or effectuate its judgment. Secondly, the Railroad argues that the injunction is “expressly authorized by Act of Congress” in passing the federal pre-emp-tive legislation, citing Mitchum v. Foster, 1972, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705. Finding the first alternative to be applicable, we pretermit consideration of the second.

In Tampa Phosphate RR v. Seaboard Coast Line RR., 5 Cir. 1969, 418 F.2d 387, and Woods Exploration & Production Co. v. Aluminum Co. of America, 5 Cir. 1971, 438 F.2d 1286, this Court wrote at great length on the state of the law regarding federal court injunctions against state court proceedings. In the latter case we thought that we had “at last reached the end of our long and protracted journey through the Appling Field and points beyond,” 438 F.2d at 1316, but the importance of the issue justifies a few additional words.

The Anti-Injunction Act expressly excepts stays necessary in aid of the court’s jurisdiction or needed to protect or effectuate its judgments. Here, both precepts appear, for the United States District Court still has before it part of the controversy between these parties — the judicial review of the Report — and the court has already finalized a judgment pursuant to Rule 54(b) as to part of the controversy. In effect, the court below has by final judgment held that the Railroad cannot properly be subjected to the efforts of these individual local officials to impose some safety standard that lies outside of the Federal Railroad Safety Act of 1970. That part of the action is concluded and certainly rises to the level of res judicata effect that was our central concern in Woods Exploration & Production Co. v. Aluminum Co. of America, supra. We find that the Woods Exploration and Tampa Phosphate RR. cases control and we hold that this injunction was proper. Those two cases are so directly in point that it would serve little purpose to quote from them at length; instead, we merely reiterate that a federal court may enjoin a state proceeding that is precluded under the doctrine of res judi-cata. While § 2283 was designed to ensure the state courts’ adjudicative potency, its exceptions assure that the federal courts and their judgments will not be eunuchized and that their muscularity will not be atrophied.

Although the character of the person filing the federal action does not control the issue, we cannot ignore the fact that here it was the Parish Officials themselves who invoked the jurisdiction of the federal court. This is not a ease of parties racing to the courthouse or racing to judgment, nor is this a case of parties suing each other in separate state and federal courts and then encouraging jealous cross-fire between the courts. None of those factors being present, many of the thorny considerations usually involved in these injunction cases are not even raised. Appellants themselves issued the invitations to dance in the federal ballroom, they chose their dancing partners, and at their own request they were assigned a federal judge as their choreographer. Now that the dance is over, appellants find themselves unhappy with the judging of the contest. They urge us to reverse and deciare that “Good Night Ladies” should have been played without the partial summary judgment having been granted and without the preliminary injunction having been issued. This we have declined to do, and in so doing we note that this is not The Last Tango for the Parish. Appellants still have an encore to perform and their day in court is not yet over. Their attack on the Report issued by the Federal Railroad Administration has yet to be decided. The Railroad Safety Act makes clear, however, that seeking judicial review of the Report’s determination that the Railroad meets all applicable standards is the only remedy even arguably available to these particular individuals. See 45 U.S.C. § 432. The State may participate in regulating railroad safety under the Act, see 45 U.S.C. §§ 435, 436, 439(a), but this case does not involve the State itself. Here we have individuals, representing a parish, waltzing into two courts simultaneously.

The trial court’s holding that the Act is pre-emptive is correct. No attempt to regulate the safety of interstate railroads may be made unless the Act itself authorizes or allows the regulation. We hold that the court below properly rendered judgment that the Railroad could not be forced to participate in this state court cotillion, which was not brought by the State and which sought to impose safety measures that were not contemplated by the Act, and that the federal court, under the facts of this case, was the sole director of the terpsichorean exhibition and had the right to effectuate and protect its directional decisions. The adjudication having gravitated to the federal forum, appellants’ attempt to repeal that law is unavailing.

Affirmed.

      . The Federal Railroad Administration of the Department of Transportation was also named as a defendant in the principal federal suit but is only a nominal party on this appeal.

      . See Wright, Federal Courts § 41. The sole exception is where removal was sought under 28 U.S.C.A. § 1443. See 28 U.S.C.A. § 1447(d).


author: WILLIAM E. DOYLE, Circuit Judge.

text:
    Ray BEAVERS, Petitioner-Appellant, v. Park J. ANDERSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
    No. 72-1437.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Feb. 20, 1973.
    March 16, 1973.

      Leonard E. Davies, Denver, Colo., for petitioner-appellant.
    Paul Crowe, Asst. Atty. Gen. (Larry Derryberry, Atty. Gen., of Oklahoma, on the brief), for respondent-appellee.
    Before HILL and DOYLE, Circuit Judges, and BRATTON, District Judge.
   WILLIAM E. DOYLE, Circuit Judge.

This is an appeal from a judgment of the District Court for the Eastern District of Oklahoma denying the petition of the appellant for relief pursuant to 28 U.S.C. § 2254. Petitioner had pleaded guilty to manslaughter in the first degree and had been sentenced to 25 years in the Oklahoma State Penitentiary, the maximum sentence being 99 years. Denial of relief in the district court was based on a review of the records of the proceedings in the state court and the court of criminal appeals, and the finding that these records contained nothing which would require a conclusion different from that reached by the state district court and the court of criminal appeals.

An evidentiary hearing was not conducted, and the petitioner has exhausted his state court remedies.

He contends here, as he did in the district court, that his plea of guilty resulted from coercion. Essentially, then, our inquiry is whether the record reveals coercion or whether an evidentiary hearing to determine the truth of this contention factually should have been carried out by the federal trial court. Defendant, in seeking relief here, relies on the decision of the Supreme Court in Boykin v. Alabama, 395 U.S. 238, 242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). This is a case in which the defendant entered pleas of guilty to five indictments charging armed robbery. The cause was submitted to a jury in accordance with Alabama practice for the purpose of determining the sentence. The jury imposed the death penalty. At the time of Boykin’s plea of guilty the court failed completely to- address the defendant with respect to whether his plea had been entered voluntarily. The Supreme Court ruled that waiver of the right to counsel and acceptance of a plea of guilty without a showing that it was intentional and voluntary constituted a violation of the petitioner’s constitutional rights. -

The record in the case at bar is not silent. It is true that we do not have a stenographer’s transcript of what occurred at the state court hearing. The record does contain, however, a form consisting of 27 questions and answers signed by the accused and his counsel as well as by the trial judge, the district attorney and the court reporter. This form is somewhat exhaustive, and we are assured that the questions were asked by the trial judge and that the answers were given by the defendant. The form makes inquiry as to whether the accused pleaded guilty of his own free will and only for the reason that he was guilty and further as to whether he committed the acts charged. He was further asked whether he had been “abused, mistreated, or threatened by anyone to have you enter this plea?” Defendant answered “No, sir.” Other questions pertained to his right to a jury trial, his knowledge as to the minimum and maximum sentences under the pertinent statute and as to his right to appeal. There is no statement in any of the answers suggesting that there had been a coercion exercised.

Petitioner alleged in the state court and also in the district court that the guilty plea was involuntary because while he was confined in the county jail on a charge of murder, the sheriff threatened that if he did not cop out or plead guilty “he was going to see that I got all the law would give.” He further alleges that the district attorney stated that if he did not plead guilty, a former conviction would be filed and he would be sentenced to 99 years. Also, he claims that his court appointed attorney told him that if the former conviction were charged, he would be unable to take the stand in his own defense.

An examination of the relevant Oklahoma law reveals that a 99 year sentence is apparently the maximum which is imposed for the offense of first degree manslaughter in Oklahoma and this was brought to the petitioner’s attention at the time of his arraignment in the state district court. At this time he stated that he understood that he could receive a sentence within the limits of four years to 99 years. Advice as to the consequences of the plea certainly does not constitute coercion. See Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Lattin v. Cox, 355 F.2d 397, 400 (10th Cir. 1966). In the final analysis the petitioner’s case is reduced to his allegation that the sheriff told him that if he did not plead guilty he would get the maximum. This allegation standing alone is, to say the least, unimpressive. We do note, however, that if a plea of guilty is coerced, the law is clear that this violates due process. See Roscoe v. Hunter, 144 F.2d 91, 92 (10th Cir. 1944); cf. Reed v. Turner, 444 F.2d 206, 208-209 (10th Cir. 1971). See also Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), which holds that an inquiry is necessary even though the allegations are illogical or apparently false. The allegation here is that the plea was obtained by threats and coercion.

We are unable to say from the record before us that the defendant was coerced, but we believe in view of the allegations that the court was required to conduct an inquiry and make a finding, first, as to what transpired in the district court, that is, as to whether the district court addressed the defendant and made a genuine effort to ascertain whether the plea was knowingly, understandably and voluntarily entered. On the other hand, we are not to be understood as condemning the use of a written memorial signed by the accused as to the proceedings which occurred in connection with the plea of guilty. We are merely saying that the important aspect is not the form but the substance of the matter. If, therefore, the form were to be used in a ritualistic way it could be meaningless. On the other hand, if the trial judge carries out his function with a conscientious effort to satisfy himself that the plea is a product of volition of the accused personally and was not induced by promises of any kind or character, and uses the questions and answers as a guide or check list, the form would merely evidence the voluntariness of the plea.

Counsel for petitioner would have us superimpose Rule 11 of the Federal Rules of Criminal Procedure on the state court procedure so as to render it a constitutional requisite. Boykin v. Alabama, supra, does not hold that this must be done, and we are not disposed to adopt such a requirement. In a very recent opinion, filed February 27, 1973, Stinson v. Turner, 473 F.2d 913, this court denied a petition similar to that which is here presented. The Supreme

Court’s decision in Boykin was considered in Judge Holloway’s opinion and it was concluded, just as we conclude here, that Boykin requires the record to affirmatively show that a defendant who pleaded guilty entered his plea understanding^ and voluntarily, and that its requirements were there satisfied. The philosophy expressed in Stinson is the same as that which we have expressed and are now expressing in the ease at bar. Surely the states, so long as they satisfy the substantial requirements of the Fourteenth Amendment, can follow their own procedure. We merely hold that where, as here, allegations of coercion appear, there exists a degree of uncertainty as to the voluntariness of the plea so that the presumption of validity of the state proceedings is not strong enough to justify upholding state court action without further inquiry. Cf. Maes v. Patterson, 401 F.2d 200, 201 (10th Cir. 1968); United States v. La Vallee, 319 F.2d 308 (2d Cir. 1963).

In State of Missouri v. Turley, 443 F.2d 1313 (8th Cir. 1971), the court said:

Rule 11 is, of course, not applicable in state proceedings. Nevertheless, once it has been established that a state court has, at the time of accepting a guilty plea, elicited sufficient information from the parties so that the propriety of accepting the plea is established in a manner analogous to the dictates of Rule 11, and an adequate record is made thereof, the occasion for setting aside a guilty plea should seldom arise.

In view of these variables, the use of a form by itself will not be sufficient in every case and will need an elaboration in some instances. In the case at bar the reason that the form may be insufficient is that the defendant has alleged that coercion was exercised by state officials outside of court. It may be that no form would furnish an answer to such an allegation. But regardless of this, we are convinced that inquiry was here required.

Based upon the foregoing, the judgment of the district court is reversed and the cause is remanded for further proceedings.

      . 21 Okla.Stat.Ann. § 713.

      . Cf. Arbuckle v. Turner, 440 F.2d 586, 589 n. 4 (10th Cir. 1971).


text:
    Elvin Emmett MOORE, Petitioner-Appellant, v. Park J. ANDERSON, Warden, Respondent-Appellee.
    No. 72-1783.
    United States Court of Appeals, Tenth Circuit.
    March 16, 1973.
    Leonard E. Davies, Denver, Colo., for petitioner-appellant.
    Paul Crowe, Asst. Atty. Gen. (Larry Derryberry, Atty. Gen. of Oklahoma, on the brief), for respondent-appellee.

      Before HILL and DOYLE, Circuit Judges, and BRATTON, District Judge.
   WILLIAM E. DOYLE, Circuit Judge.

Appellant seeks reversal of a judgment of the United States District Court for the Western District of Oklahoma where he filed a petition pursuant to 28 U.S.C. § 2254, alleging that his pleas of guilty to charges of assault and battery with a deadly weapon with intent to kill and escape from confinement other than penitentiary were not voluntary and therefore void. The state court remedies of petitioner have been exhausted, appellant having pursued post conviction remedies through the state courts. The district court denied the petition on the basis of the moving papers holding: “The generalities, conclusions, and other allegations of petitioner which are contradicted by the records of the trial court are insufficient to entitle petitioner to an evidentiary hearing.” We affirm.

Appellant’s main contention is that the record in the state court was so inadequate as to constitute a violation of his due process rights under the Fourteenth Amendment because the record does not disclose, according to him, that he was informed of his constitutional rights before entering his plea.

This is another case in which written questions were submitted and answers were inserted in blank spaces presumably by the court or the clerk. The completed form is signed by the district attorney, the attorney for the defendant, by the defendant, by state district judge, the court reporter and court clerk. The court propounds the questions. This form is essentially the same as that which was used in Beavers v. Anderson, 474 F.2d 1114, a decision announced this day. Unlike the Beavers case, wherein particular allegations were made as to the coercion practiced, the petition at bar simply alleges that the plea was not voluntary and that there was not a sufficiently full explanation as to the defendant’s right to a trial by jury and his right to counsel and “the possibility of the penalty provided by statute for the offense charged.” The petition also stated that “the defendant at the time of his plea of guilt was under heavy mental strain as well as under strain and influence of threats before plea.” The defendant was obviously warned as to the maximum penalty provided by law and as to the consequences of a plea of guilty. He was also told of his right to have a jury trial and stated that he did not wish to have one. He further stated that he had discussed the charges with his lawyer and understood his rights and that his lawyer had advised him in the matter. Based upon this and other questions which were propounded to him, he entered pleas of guilty to both charges and was sentenced. He was in fact represented by counsel and he nevertheless complains that the judge failed to advise him fully of his right to counsel.

As in the Beavers ease, counsel argues that the written form by itself violates the Constitution. We disagree. We have carefully read Boykin v. Alabama, 395 U.S. 238, 242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which is relied on by the appellant, and that case does not hold that Rule 11 together with its implementing federal decisions is lock, stock and barrel applicable to state court proceedings. Undoubtedly the accused is entitled to have the judge address him personally on the occasion of his arraignment and he is entitled to know of his right to a jury trial, and if he attempts to enter a plea of guilty he is entitled to know the consequences of his plea, and the judge must satisfy himself that the plea is being given voluntarily and with knowledge of its consequences. The questions and answers here are sufficient to satisfy these minimum requirements. The presumption of validity given to these proceedings is not challenged by the allegations of the petitioner. See Norvell v. Illinois, 373 U.S. 420, 424, 83 S.Ct. 1366, 10 L.Ed.2d 456 (1963); Boyd v. Oklahoma, 375 F.2d 481 (10th Cir. 1967).

As we said in Beavers, the nature of the questions and answers signed by the accused and others does not of itself establish that the proceedings were inadequate or involuntary. On the contrary, they tend to show that the accused acknowledged his guilt and was aware of his rights. For example, the mere fact that he is called upon to sign a document does not condemn the practice. Rule 23(a) of the Federal Rules of Criminal Procedure calls for the signing of a document whenever the accused waives a jury and consents to be tried to the court. This procedure has been upheld. See Estrada v. United States, 457 F.2d 255 (7th Cir.), cert. denied, 409 U.S. 858, 93 S.Ct. 143, 34 L.Ed.2d 104 (1972), and see United States v. Straite, 138 U.S.App.D.C. 163, 425 F.2d 594 (1970).

We have considered the excellent opinion of Judge Holloway in Stinson v. Turner, 473 F.2d 913, and the decision here, as does the decision in Beavers, conforms with Stinson.

Finally, appellant contends in his allegation that he was under heavy mental strain which itself justifies an evidentiary hearing. Again, we disagree. The state district court referred the defendant for mental examination and he was reported sane. There is no other evidence that he was unable to understand the proceedings and to cooperate with counsel. Furthermore, the allegation itself is weak. It fails to allege incompetency.

In summary, the trial court correctly determined that an evidentiary hearing was unnecessary in view of the lack of apparent substance in the petition. See Machibroda v. United States, 368 U.S. 487, 495-496, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962) and Eskridge v. United States, 443 F.2d 440 (10th Cir. 1971).

The judgment of the district court is affirmed.