author:
LEWIS R. MORGAN, Circuit Judge:
      AINSWORTH, Circuit Judge PER CURIAM: CLARK, Circuit Judge, with whom COLEMAN, AINSWORTH and GEE, Circuit Judges, join,

text:
    Roger FAIN, Petitioner-Appellee, v. Ed DUFF, etc., Respondent-Appellant.
    No. 73-1933.
    United States Court of Appeals, Fifth Circuit.
    Dec. 7, 1973.
    Rehearing En Banc Denied March 1, 1974.

      Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., Tallahassee, Fla., John W. Tanner, Asst. State Atty., 7th Judicial Circuit of Fla., Daytona Beach, Fla., for respondent-appellee.
    Philip H. Elliott, Jr., Daytona Beach, Fla., Thomas A. Goldsmith, San Francisco, Cal., for petitioner-appellee.
    Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

Sixteen-year-old Roger Fain was arrested November 12, 1970, in Volusia County, Florida, for breaking into the home of a woman and raping her. Eleven days later Fain was adjudged delinquent by a juvenile court. Nine days after the juvenile proceedings, a grand jury returned an indictment charging Fain with the criminal offense of rape. After the state courts of Florida rejected Fain’s argument that prosecution of him for rape would violate the former jeopardy clause of the Fifth Amendment to the Constitution, Fain obtained a writ of habeas corpus from the United States District Court for the Middle District of Florida. The state now appeals the granting of the writ. We affirm.

Although this case involves complicated constitutional and statutory questions, the facts are simple and undisputed. On November 12, 1970, Roger Fain, then aged sixteen years and nine months, was arrested by Ormond Beach police officers for the alleged rape the day before of Mary Frances Oswald in Volusia County, Florida. Five days later, a counselor of the juvenile court system filed a petition in juvenile court alleging that Fain was a delinquent child by reason of having assaulted and raped Mrs. Oswald. On November 23, 1970, a hearing was held in the Volusia County Juvenile Court, during which an assistant state attorney appeared and urged the judge to waive jurisdiction and certify the case to the circuit court. After hearing argument on this question, the judge declined to waive jurisdiction, found Fain delinquent and committed him to the Division of Youth Services for an indeterminate period not to extend beyond his 21st birthday. Since November 23, 1970, Fain has remained in the custody of the Division of Youth Services at the Dozier School for Boys.

On December 1, 1970, the state attorney for the Seventh Judicial Circuit urged the juvenile court judge to stay the issuance or execution of its order of commitment; the judge did not do so. The next day, an indictment was returned alleging the same acts on which the delinquency adjudication was based. Two weeks later, on December 17, 1970, the state attorney urged the juvenile court to relinquish jurisdiction.

In the circuit court, Circuit Judge Melton of the Seventh Judicial Circuit dismissed the indictment against Fain on January 7, 1971, on the grounds of former jeopardy. The state appealed to the First District Court of Appeal, which reversed Judge Melton’s ruling on August 17, 1971. State v. R. E. F., 251 So.2d 672 (Fla.App.1971). The Supreme Court of Florida affirmed the court of appeal, but stayed its mandate to allow Fain to pursue any remedies he might have in federal court. R. E. F. v. State, 265 So.2d 701 (Fla.1972). Fain filed a petition for a writ of habeas corpus in the Middle District of Florida, and a hearing was held before the U. S. District Court on November 21, 1972. On January 15, 1973, the district court issued the writ requested by Fain. The state filed a notice of appeal February 7, 1973.

Three questions confront us in this appeal:

1. Did the district court have jurisdiction to entertain Fain’s application for a writ of habeas corpus ?

2. Was the district court correct in determining that the actions of the State of Florida violate the former jeopardy clause of the Fifth Amendment, made applicable to the states by the Fourteenth Amendment ?

3. Was the district court correct in determining that the actions of the State of Florida violate the Fourteenth Amendment and notions of fundamental fairness ?

I

As in all eases in federal court, the first question to which we must address ourselves is that of jurisdiction provided by a statute, for if there is no jurisdiction, a determination of the merits of a case is futile. Ex parte McCardle, 74 U.S. (7 Wall.) 506, 19 L.Ed. 264 (1869); Ex parte Bollman, 8 U.S. (4 Cranch) 75, 2 L.Ed. 554 (1807). In this case, Fain asserts jurisdiction under 28 U.S.C. § 2241. We must therefore determine if that statute permits the district court to grant the writ. The statute iself contains no definition of the term habeas corpus. To ascertain its meaning and the appropriate use of the writ in federal courts, recourse must be had to the common law, from which the term was drawn. McNally v. Hill, 293 U.S. 131, 136 (1934). The traditional use of the Great Writ was to inquire into the detention of a prisoner for the purpose of commanding his release if that detention was contrary to the law. See Developments in the Law — Federal Habeas Corpus, 83 Harv.L.Rev. 1038 (1970) and H. Hart and H. Wechsler, The Federal Courts and the Federal System, 2d Ed. (1973), 1426-29. The purpose of this writ is not to examine the validity of any judgment, but merely to inquire into the legality of a detention. Fay v. Noia, 372 U.S. 391, 430, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Thus, an obvious prerequisite to the issuance of a writ is detention, or custody.

Notwithstanding the traditional requirement that the petitioner must be in custody when the writ issues, McNally v. Hill, supra, the law in this country has been considerably broadened in this area. This most significant relaxation of the detention standard occurred in Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968). In Pey-. ton, the Supreme Court permitted a prisoner to attack the second of two consecutive sentences before the first had expired. Although the petitioner had not yet begun to serve the allegedly illegal sentence, the Court held that practical considerations and the history of the writ as a means of prompt adjudication permitted the district court to consider the petition at the time it was presented. Id. at 62-63, 88 S.Ct. 1549.

In this case we have a situation analogous to the consecutive sentence problem of Peyton. Fain is now committed to the custody of the juvenile authorities, where he will remain even after he obtains the writ. But uncontested evidence introduced at the hearing in district court indicated that the conditions of his commitment would be substantially different absent the rape indictment.

Fain is now incarcerated at the Dozier School for Boys in Marianna, Florida. The Division of Youth Services, however, has the authority to release him when it would benefit Fain and society to do so. Mr. Lenox E. Williams, superintendent of the school, testified at the hearing that, “If [Fain] could have left the institution without the threat of being thrown in jail . . . [w]e would have let him go.” The district court found “that the juvenile authorities are of the opinion that petitioner has been rehabilitated and the authorities are prepared to release him but for the probability that his release from the Dozier School for Boys would simply result in his re-arrest by Volusia County authorities on the strength of the judgment of the Florida Supreme Court, [footnote omitted.]”

Thus, Fain’s “custody” is even more apparent than that of Peyton, since the existence of the outstanding indictment not merely threatens him with more incarceration in the future, it has a substantial effect on his present circumstances. In fact, the indictment is the sole cause of his present confinement.

The fact that Fain is in the custody of the juvenile authorities of the State of Florida, coupled with the likelihood of his being released in the discretion of those authorities, convinces us that the custody requirement of § 2241 has been amply complied with in this ease. This holding does not in any way involve a “stretching” of the custody requirement of the statute, for Fain’s liberty is restrained in a manner which can and should be basis for issuance of the writ under even the most traditional concepts of custody. Cf. Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973).

The state argues that Fain must also demonstrate that his confinement is pursuant to the judgment of a state court. But Fain nowhere alleges that his petition falls within § 2254 and, in fact, it is obvious that it does not. Section 2254 was enacted to regulate the use of habeas corpus for collateral attack on state criminal proceedings. It has no relevance to this case. One of the traditional roles of the writ is to prevent lawless denials of liberty, whether perpetrated by the executive, legislative or judicial branches of the government, or the military. Traditionally, the writ has had a very wide usage in testing all kinds of lawless government actions. Its use as a post-conviction remedy for wrongs perpetrated during criminal trials is relatively recent. In fact, the statute allowing federal habeas corpus attack on state criminal convic tions was not even in existence prior to 1867. In Ex parte Royall, 117 U.S. 241, 65 S.Ct. 734, 29 L.Ed. 868 (1886), Justice Harlan recognized the power of the federal court to release a prisoner who had not undergone a state trial. Although relief was denied because of a failure to exhaust the processes of the state, the case reaffirms the traditional notion that the federal remedy in habeas corpus is available to vindicate constitutional rights of citizens illegally held in custody. The Supreme Court only last term reaffirmed this traditional use of the writ. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). In Braden the writ was used to enforce Kentucky’s affirmative obligation to provide the petitioner with a speedy trial. Although petitioner was in custody at the time of his petition, the physical custody was that of the State of Alabama, not Kentucky, the state which petitioner alleged was depriving him of his rights. Braden obtained a writ” against Kentucky officials before any trial in that state.

The state also advances several arguments related to the timing of Fain’s resort to a federal forum. These can be loosely grouped under the term “exhaustion.” The exhaustion of state remedies requirement is based on Ex parte Royall, supra. Although in Royall, the decision to require exhaustion was left in the discretion of the district court, the requirement soon became known as a jurisdictional one. With respect to collateral attack on convictions in state court, the requirement was codified in 28 U.S.C. § 2254(b), but the requirement applies to all habeas corpus actions.

The Court in Braden clearly explained the various foundations and rationales of the exhaustion requirement. 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d at 449-451. Briefly stated, the doctrine preserves the respective roles of state and federal governments and avoids unnecessary collisions between sovereign powers. States are allowed to vindicate their interest in prompt and orderly administration of justice, while the federal judiciary upholds its responsibility to prevent the exercise of illegitimate authority. However, federal-state tensions should not be exacerbated by gratuitous federal interference in state criminal proceedings.

In this case, the courts of Florida have had an opportunity to promulgate a final, definitive ruling on the question involved. The Florida Supreme Court has authoritatively stated in the context of this case that in its opinion repros-ecution of the petitioner will not violate his right not to be twice placed in jeopardy. 265 So.2d 701. There is nothing more for the courts of Florida to say on this issue.

It may be objected that resort to a federal forum is unnecessary because a petition for habeas corpus relief could be brought after the trial in state court, thus leaving open the possibility that a finding of not guilty in state court would make resort to federal habeas corpus unnecessary. In addition to the observation that a finding of delinquency by the juvenile court makes this possibility unlikely (though certainly not inconceivable), a more important consideration refutes this position.

Fain is not asserting merely a federal defense to a state prosecution. He is asserting a constitutional right not to be twice put in jeopardy for the same offense. Although double jeopardy (if shown) would certainly be a proper defense to assert at trial and in post-conviction proceedings, the right consists of more than having the second conviction set aside. It consists of being protected from having to undergo the rigors and dangers of a second — illegal — trial. Double jeopardy is not a mere defense to a criminal charge; it is a right to be free from a second prosecution, not merely a second punishment for the same offense (though that is obviously included in the right.) The prohibition of the Double Jeopardy Clause is “not against being twice punished, but against being twice put in jeopardy.” United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); Ex parte Lange, 85 U.S. (18 Wall.) 163, 169, 21 L.Ed. 872 (1874); Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

Again, this can be analogized to Brad-en. The writ in Braden issued to enforce petitioner’s right to a speedy trial. Surely, as the Court noted, lack of a speedy trial would have been a defense to be presented at trial, on appeal, or in post-conviction proceedings. Nevertheless, the Court approved the writ to enforce the state’s affirmative obligation to bring Braden to trial. Here, it is not an affirmative obligation Fain seeks to enforce, it is a prohibition. But just as in the case of speedy trial, the right is one which can and should be vindicated without waiting until the state decides to conduct a trial. For Fain, it is the right to be left alone which he seeks to enforce against the State of Fluida.

II

We turn now to the question of whether prosecuting Fain for rape violates his rights under the Constitution. Fain argues that he was not only placed in jeopardy in the juvenile court — he was convicted and punished. His is a plea of autrefois convict. To try him again would not only subject him to the harrassment of an additional judicial proceeding, but also subject him to the risk of being twice punished for the same offense. Therefore, reprosecution of him as an adult violates both conceptions of fundamental fairness and the Constitution’s protection against double jeopardy, made applicable in state proceedings by the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L.Ed.2d 707 (1969). The State of Florida contends (1) since the juvenile proceedings were not criminal in nature, Fain was never put in jeopardy; (2) even if the juvenile proceedings are held to have placed Fain in jeopardy, as a juvenile, he has no right not to be placed in jeopardy again; and (3) the correct standard to apply is fundamental fairness, and it is not fundamentally unfair to prosecute Fain as an adult for the rape.

A. Was Fain placed in jeopardy in the juvenile court proceedings?

It cannot be disputed that a juvenile court judge in Florida may, by finding a juvenile to be delinquent, impose significant restrictions on his liberty. He may “Place a child . . . under the supervision of an authorized agent of the division of youth services Commit the child to a . . . child-caring institution . . . Commit the child to the division of youth services . . . .” F.S.A. § 39.11. Although commitment to the Division of Youth Services may result in the juvenile being allowed to return to his home, it may also result in incarceration until age 21. Fain’s commitment to the division resulted from his having been found delinquent. And his being found delinquent resulted from his having violated a criminal law of the State of Florida. F.S.A. § 39.01(9). Thus, a violation of the criminal law may directly result in incarceration. This is a classic example of “jeopardy.”

The state’s argument that the purpose of the commitment is rehabilitative and not punitive does not change its nature. No authority need be cited for the proposition that a court should look past the labels to the substance of an action. Regardless of the purposes for which the incarceration is imposed, the fact remains that it is incarceration. The rehabilitative goals of the system are admirable, but they do not change the drastic nature of the action taken. Incarceration of adults is also intended to produce rehabilitation. A court proceeding which may result in incarceration places a person, adult or juvenile, in jeopardy. United States v. Dickerson (D.D.C., 1958), 168 F.Supp. 899, rev’d on other grounds (1959), 106 U.S.App. D.C. 221, 271 F.2d 487; M. v. Superior Court of Shasta County, 4 Cal.3d 370, 93 Cal.Rptr. 752, 482 P.2d 664 (1971).

B. Does Fain’s status as a juvenile prevent him from asserting double jeopardy as a defense to the criminal prosecution for rape?

The state argues that in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), the Supreme Court held that juveniles are not protected by all the guarantees of the Bill of Rights, but rather, the applicable standard to use in juvenile cases is one of fundamental fairness. 403 U.S. at 543, 91 S.Ct. 1976. This argument completely misconstrues the holding in Mc-Keiver. The Court there dealt only with the rights of juveniles in juvenile court proceedings. Here we have a juvenile threatened with a criminal prosecution. By indicting him, the state has expressed a desire to treat him in all respects as an adult. Is there any question that since the state now proposes to subject him to the powers of the state as it would an adult, it must now accord him all the procedural rights that an adult has?

Fain’s mere status as a juvenile, although it may subject him to the jurisdiction of an entirely different court system, cannot deprive him of rights that adults enjoy in the criminal justice system. If Florida wants to punish Fain as an adult, it must give him all the rights of an adult. We need not deal at all with Fain’s rights in the juvenile court system, for now he is in the adult court system. And in that system, the Constitution’s command that no person shall be twice placed in jeopardy for the same offense unquestionably applies.

C. Is Fain being placed in jeopardy for “the same offense” by the rape indictment?

In this inquiry we are guided by an earlier decision of this court in a similar case. In Hultin v. Beto, 396 F.2d 216 (5 Cir. 1968), this court held that the State of Texas violated notions of fundamental fairness by punishing a person for a crime after it had already committed him to juvenile authorities because he committed the same acts which the indictment charged. Here, as in Hultin, the indictment charged that the defendant engaged in exactly the same actions which were proved at the hearing in juvenile court, and which the judge considered in committing the juvenile in the earlier proceedings. In this case it is especially clear that Fain is being prosecuted for “the same offense,” because he was adjudged delinquent by reason of having violated the same criminal law for which he is now being indicted. This is even a clearer case than Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), in which the Court held that for a State and a municipality to both prosecute someone for committing the same acts violates the double jeopardy clause. Here, we have not only the same sovereign, we have in addition exactly the same acts being punished and exactly the same elements in each offense. Thus, Fain is now being prose-uted for the “same offense” for which he was adjudged delinquent in the juvenile proceedings.

Ill

Does prosecution of Fain as an adult for the substantive criminal offense of rape violate notions of “fundamental fairness”?

This court’s opinion in Hultin v. Beto, supra, provides definitive guidance in answering this question. We merely follow Hultin in answering in the affirmative. Florida argues that Hultin is distinguishable on the grounds that the Texas statute forbade prosecution of juveniles for substantive offenses, while in Florida concurrent jurisdiction exists. Thus, Texas had to wait until Hultin reached age 17 before prosecuting him. If the timing had been different, Fain could have been prosecuted immediately as an adult, in which case the juvenile court would have lost jurisdiction. over him. F.S.A. § 39.02(6) (c).

We find this distinction unpersuasive. The problem in this case is that Florida failed to indict Fain before the juvenile court judge adjudged him delinquent. That it could deprive the juvenile court of jurisdiction in some other case in which it acted more quickly is of no consequence in a case in which it failed to do so.

Florida also argues that it made every effort to bring Fain to trial as an adult, while in Hultin, the state participated fully in the delinquency proceedings. This argument fails for two reasons. First, in Hultin, as in Fain, the state attorney objected to the juvenile court judge’s action in taking jurisdiction over the juvenile. More importantly, the juvenile court judge acts for the state, just as the state attorney does. It cannot be seriously contended that the state played no role in the delinquency proceedings. Everything about the delinquency proceedings was controlled and authorized by state statutes. The juvenile court judge may have acted without the consent of the state attorney’s office, but under existing Florida law, such an action was proper. The state participated in the delinquency proceedings in this case, just as it did in Hul-tin.

Finally, the state contends that the juvenile court judge abused his discretion in finding Fain delinquent after the state attorney informed the judge of his desire to present the case to a grand jury. Under existing Florida law, however, the decision to take jurisdiction over felonies committed by juveniles is left entirely in the discretion of the juvenile court judge. There is nothing to indicate that the judge need even hear the arguments of the state attorney before making his decision, much less be bound by those arguments. It is true that the juvenile court loses jurisdiction over a juvenile after an indictment is handed down. But in this case an indictment was not handed down until after the juvenile court had invoked jurisdiction and committed Fain to the department of youth services. The court had jurisdiction over Fain when it made that commitment, and we are unconvinced tha.t any improper procedures were engaged in to deprive the state of any interest it may have had in prosecuting Fain as an adult.

The foregoing discussion demonstrates that Fain was placed in jeopardy in the juvenile court proceedings, and that he is now placed in jeopardy again in the Circuit Court for the Seventh Judicial Circuit for the same offense. The Constitution does not permit such an action to occur.

Affirmed.

AINSWORTH, Circuit Judge

(dissenting) :

The well-reasoned opinion of the Florida Court of Appeal, First District (Wigginton, J.), 251 So.2d 672, in this matter, affirmed by the Supreme Court of Florida, 265 So.2d 701, which denied the double jeopardy plea and held that there was no denial of fundamental fairness to the minor herein, fully reflects my views and my reasons for dissent.

Some pertinent excerpts from Judge Wigginton’s opinion for the Court follow:

F.S. Section 39.02(6) (a), F.S.A., of the juvenile court act permissively authorizes a juvenile judge to waive its jurisdiction of a proceeding brought against a juvenile 14 years of age or older if the act forming the basis for the child’s alleged delinquency would constitute a felony under the laws of Florida. In this event the juvenile court shall certify the case to the court which would have jurisdiction of the child if he were an adult. F.S. Section 39.02(6) (c), F.S.A., provides that when an indictment is returned by the grand jury charging a child of any age with a violation of Florida law punishable by death or by life imprisonment, the juvenile court shall be without jurisdiction, and the child shall be handled in every respect as if he were an adult.
Appellant invites the court’s attention to the fact that the juvenile court in the case sub judice held a hearing, refused to relinquish jurisdiction and adjudged appellee to be a delinquent child within the short period of six days from the date on which the petition of the juvenile counselor was filed in the court. Although the indictment in this case was returned by the grand jury within 12 days thereafter, had the indictment been returned prior to the date on which the juvenile court adjudged appellee to be a delinquent child and committed him to the Division of Youth Services of the State of Florida, then the juvenile court would have lost jurisdiction of the case by virtue of the provisions of F.S. Section 39.02(6) (c), F.S.A. If the position of the appellee is sustained, it would appear that the stage would then be set for a race to the courthouse to see whether a child who commits a capital offense under the laws of Florida may escape prosecution in the criminal court by a hurry-up delinquency proceeding in the juvenile court in which he pleads guilty or enters no objection to an adjudication finding him to be a delinquent child because of the criminal offense which he committed. If such maneuver can be successfully accomplished, then under the theory advanced by appellee the child may never be subsequently prosecuted in the criminal court for the offense he has committed even though the period of time he may be lawfully confined in the custody of the Division of Youth Services may not go beyond his 21st year of age.

Id. 251 So.2d at 675.

It is of significance here that in McKeiver v. Pennsylvania, 403 U.S. 528, 541, 91 S.Ct. 1976, 1984, 29 L.Ed.2d 647 (1971), the Supreme Court said that “the juvenile court proceeding has not yet been held to be a ‘criminal prosecution’.” Though there are definite criminal aspects to child delinquency proceedings, the 16-year-old juvenile here has never been tried by any court for the serious capital offense of rape. It is true that the juvenile was adjudicated a delinquent by the Florida Juvenile Court on the basis of the same facts upon which he was subsequently indicted for a felony, but it cannot properly be held that the delinquency proceeding constituted a criminal prosecution so as to prevent trial of the felony case in the proper Florida state court. The majority’s attempt to distinguish the holding in McKeiver is unconvincing.

The citation by the majority of Hultin v. Beto, 5 Cir., 1968, 396 F.2d 216, is clearly inapposite as Judge Wigginton’s opinion demonstrates. Hultin, a 16-year-old minor, was adjudged a delinquent child for an assault and a murder. Under the law of Texas, where the offenses occurred, no minor may be tried for a criminal offense unless he has attained the age of 17. The attempt of the State of Texas to prosecute Hultin for murder when he thereafter attained the age of 17 was obviously contrary to law and violated principles of fundamental fairness. On the other hand, in Florida, a minor, 14 years of age or older, may be tried for any felony if the juvenile court relinquishes jurisdiction, or a child of any age may be tried for a capital case and upon indictment the juvenile' court loses jurisdiction.

The Florida Court of Appeal aptly said in the conclusion of its opinion in this case:

We find nothing in the record before us which can reasonably be said to support the conclusion reached by the trial court that to now require ap-pellee to answer for the offense with which he is charged in the indictment would constitute fundamental unfairness. The juvenile court adjudication finding him to be a delinquent child for having, committed the offense of rape was undergirded by his full cooperation and resulted from his own urging over the timely objection of the criminal court authorities. If he was sufficiently mature at age 16 to feloniously assault and forcibly rape a mature woman, it would appear that he was sufficiently mature to have appreciated the unlawful character of his act and is sufficiently responsible to answer for its consequences. To make this requirement of appellee would not, in the words of the federal court in Hultin, supra, “violate those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions”.

Id. 251 So.2d at 680.

I agree with the Florida appellate courts which had all the facts and circumstances of this case before them, that the minor has not been denied fundamental fairness and his plea of double jeopardy should be denied.

ON SUGGESTION FOR REHEARING EN BANC

PER CURIAM:

A member of the Court in active service having requested a poll on the reconsideration of this cause en banc, and a majority of the judges in active service not having voted in favor of it, rehearing en banc is denied.

Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

CLARK, Circuit Judge, with whom COLEMAN, AINSWORTH and GEE, Circuit Judges, join,

dissenting:

I dissent from the court’s denial of rehearing en banc.

Judge Ainsworth’s dissent to the panel opinion aptly puts my views on the jeopardy effect of the adjudication of delinquency.

Exceptional importance is also present because the court relies on Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), as authority for the unprecedented use of the writ of habeas corpus to prelitigate a constitutional defense to a state criminal prosecution. With deference, this not only cuts across the express caveat of the Supreme Court; but it also hurls the injunctive effect of the writ of habeas corpus into the path of this pending State court proceeding, contrary to 28 U.S.C. § 2283 and the rationale of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

Braden required a trial to be held. Today’s decision converts the power to require into the power to halt.

      . F.S.A. § 39.03(1) (b) allows a police officer to arrest a juvenile who is “alleged to have committed a violation of law.”

      . F.S.A. § 39.05 specifies procedures for filing petitions “in the interest of” juveniles in juvenile courts.

      . F.S.A. § 39.09 prescribes procedures for juvenile court bearings. F.S.A. § 39.02(6) (a) provides that a juvenile court judge may, after a hearing, transfer a child who is 14 years of age or older to the court which would have jurisdiction over the child if he were an

      . F.S.A. § 39.01(11) (in effect at the time these events occurred) defined the term “delinquent child” as follows:
      “Delinquent child” means a child who commits a violation of law, regardless of where the violation occurred, except a child who commits a juvenile traffic offense and whose case has not been transferred to the juvenile court by the court having jurisdiction.
      F.S.A. § 39.11(2) (b) enumerates the powers of juvenile court with respect to juveniles it has adjudged delinquent.

      . The juvenile court petition alleged rape and aggravated assault with a dangerous weapon. The indictment charged only forcible rape in violation of F.S.A. § 794.01.

      . F.S.A. § 39.02(6) (c) provides:
      When an indictment is returned by the grand jury charging a child of any age with a violation of Florida law punishable by death, or punishable by life imprisonment, the juvenile court shall be without jurisdiction, and the charge will be made, and the child shall be handled, in every respect as if he were an adult.
      Nevertheless, it is clear that the juvenile court had jurisdiction of the case when it adjudged Fain to be delinquent.

      . The Fifth Amendment provides, in part: “ . . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .”

      . 28 U.S.C. § 2241 provides in part:
      (a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had.
      (c) The writ of habeas corpus shall not extend to a prisoner unless .
      (3) He is in custody in violation of the Constitution or laws or. treaties of the United States.

      . 28 U.S.C. § 2254(a) provides:.
      The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

      . See H. Hart and H. Wechsler, The Federal Courts and the Federal System, 2d Ed. (1973), 1426-29.

      . Judiciary Act of February 5, 1867, c. 28, § 1, 14 Stat. 385-386.

      . Appellant’s brief may be read to question the authority of the District Court for the Middle District of Florida to adjudicate Fain’s claim and the propriety of including Duff, Volusia County Sheriff, as a defendant. Both Fain and the juvenile authorities who now hold him in custody are in the Northern District. Any questions in this area are answered by Braden, supra.

      . The double jeopardy issue involved in this case has been before several state courts that have denied the plea under circumstances similar to those here. See, e. g., Johnson v. State, 3 Md.App. 105, 238 A.2d 286 (1967) ; Moquin v. State, 216 Md. 524, 140 A.2d 914 (1958) ; In re Santillanes, 47 N.M. 140, 138 P.2d 503, 510-511 (1943) ; People v. Silverstein, 121 Cal.App.2d 140, 262 P.2d 656 (1953) ; In re Smith, 114 N.Y.S.2d 673 (Dom.Rel.Ct.1952). See also In re Holmes, 379 Pa. 599, 109 A.2d 523 (1954), cert. denied, 348 U.S. 973, 75 S.Ct. 535, 99 L.Ed. 757 (1955) ; State v. Smith, 75 N.D. 29, 25 N.W.2d 270 (1946) ; In re McDonald, 153 A.2d 651 (D.C.Mun.Ct.App.1959) ; Dearing v. State, 151 Tex.Cr.R. 6, 204 S.W.2d 983 (1947).

      . We emphasize that nothing we have said would permit the derailment of a pending state proceeding by an attempt to litigate constitutional defenses prematurely • in federal court. The contention in dissent that our decision converts federal habeas corpus into “a pretrial motion forum for state prisoners,” wholly misapprehends today’s holding. Braden, supra, 410 U.S. at 493, 93 S.Ct. at 1129, 35 L.Ed.2d at 451.


source: Caselaw Access Project

author: VAN DUSEN, Circuit Judge. GIBBONS, Circuit Judge

license: Public Domain

text:
    UNITED STATES ex rel. Vaughan BOOKER H-9095, Appellant, v. Robert JOHNSON, Superintendent, State Correctional Institution at Graterford.
    No. 73-1066.
    United States Court of Appeals, Third Circuit.
    Argued May 18, 1973.
    Decided Sept. 28, 1973.
    David Kairys, Kairys & Rudovsky, Philadelphia, Pa., for appellant.
    Arlen Specter, Dist. Atty., Judith Dean, Asst. Dist. Atty., Philadelphia, Pa., for appellee.
    Before VAN DUSEN, GIBBONS and ROSENN, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

Petitioner Booker appeals from the July 31, 1972 district court order which denied his petition for habeas corpus without a hearing. We affirm the order of the district court.

Booker is imprisoned for the murder of his wife. He pleaded guilty generally to this murder, and the three-judge court which accepted his plea determined, after a trial on the degree of guilt, that the murder was first degree. The court sentenced him to life. He appealed this sentence to the Pennsylvania Supreme Court and, while such appeal was pending, as a result of a joint petition filed by defendant’s counsel and the district attorney, the case was remanded for an evidentiary hearing to consider petitioner’s contentions that the guilty plea was invalid and that he had been denied his constitutional right to the effective assistance of counsel. Petitioner also filed while such appeal was pending a petition seeking relief under the Post-Conviction Hearing Act, which was consolidated for hearing with the remanded case. At this hearing, his contentions as to the voluntariness of his plea and the effectiveness of his counsel were rejected in an opinion by Judge Doty. See Commonwealth v. Booker, Opinion of 12/20/71 (C.P.Phila. Criminal Section, Dec. Term 1967 No. 1639). The Pennsylvania Supreme Court affirmed per curiam, 447 Pa. 587, 287 A.2d 899 (1972).

Booker then filed a petition in the district court for habeas corpus. The district court, “after careful and independent consideration of relator’s petition, the state court records and after review of the Report and Recommendation of the United States Magistrate,” adopted this report, which had concluded that the post-conviction hearing judge had reliably found the facts and correctly applied the law.

Early on the morning of October 23, 1967, Booker killed his wife by shooting three hunting arrows and two target arrows variously into her neck, left breast and right side. He subsequently wrote on a wall that he also tried to strangle his infant son, but revived him. Booker then called the police who arrived, found his wife’s body, and took him into custody. Later that morning he made a statement to police relating the circumstances of the killing.

Two counsel were appointed for Booker, Abraham J. Brem Levy and Anthony Minisi. They obtained an offer from the district attorney’s office that, in exchange for a guilty plea, the district attorney’s office would certify the murder as second degree and recommend seven to fourteen years. Booker, however, refused to accept this arrangement and discharged the two attorneys. At his post-conviction hearing Booker stated that his reason for this action was his desire to present the defense of insanity to a jury.

Two new attorneys were appointed, Richard D. Atkins and Armand Della Porta (now Judge Della Porta). It is with respect to the conduct and advice of these men that Booker now petitions for relief. His central factual claims are, first, that these counsel believed, and, second, that they told him, that if he pleaded guilty he would be allowed to present evidence of diminished responsibility at the time of the killing and that this evidence would negate the intent necessary for a finding of first degree murder. The then-existing law, Booker argues, was clearly to the contrary. Therefore, because of this ignorance or gross misappraisal of Pennsylvania law, counsel were incompetent and did not render him effective assistance. United States ex rel. Green v. Rundle, 434 F.2d 1112, 1113 (3d Cir. 1970); United States v. Moore, 432 F.2d 730, 736-737 (3d Cir. 1970). On the same reasoning petitioner contends that their advice to him did not fall “within the range of competence demanded of attorneys in criminal cases,” McMann v. Richardson, 397 U.S. 759, 770-771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970), and rendered his guilty plea unintelligent and void. See United States ex rel. Crosby v. Brierley, 404 F.2d 790, 797-798 n. 19 (3d Cir. 1968).

At the time of trial in February 1970, the relevant law of Pennsylvania consisted of three decisions: Commonwealth v. Ahearn, 421 Pa. 311, 218 A.2d 561 (1966); Commonwealth v. Phelan, 427 Pa. 265, 234 A.2d 540 (1967); and Commonwealth v. Rightnour, 435 Pa. 104, 253 A.2d 644 (1969). In Ahearn, the defendant, had pleaded guilty to murder generally, and a judge subsequently determined that the murder was in the first degree. The Pennsylvania Supreme Court affirmed, in a reaffirmation of the M’Naughten Rule of distinguishing right from wrong and a rejection of the doctrine of diminished responsibility. The court held that an inability to control oneself, whether labeled “irresistible impulse” or “diminished responsibility,” was legally insufficient to reduce first degree murder to second degree by negating any specific intent to kill. Indeed, the court ruled that psychiatric evidence was inadmissible unless offered to show insanity under the M’Naughten Rule. Ahearn was followed in Phelan. In Rightnour, the defendant’s conviction by a jury of first degree murder was upheld despite the trial judge’s refusal to allow a psychiatrist to testify about the defendant’s state of mind, which was conceded not to meet the M’Naughten Rule.

It should be noted, however, that the affirmance in Rightnour was by an equally divided court. Thus, the state of the law regarding diminished responsibility was in something of a state of flux. In Commonwealth v. Weinstein, 442 Pa. 70, 274 A.2d 182 (1971), Aheam'was followed, again by an equally divided vote. Finally, Ahearn was overruled by Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972).

At the post-conviction hearing held in June 1971, before McCusker, Mr. Atkins indicated that he believed that evidence of diminished responsibility was admissible to negate the intent requisite for first degree murder. See PCHNT 43-49. He did not, however, indicate why he believed this to be so. We have not been able to find any direct support in the record for the finding of the post-conviction hearing judge that Atkins’ belief was based on the 3-3 vote in Rightnour. No mention of these cases appears in the transcript of the hearing or in the transcript of the trial. It is also unclear — and the judge made no finding on this question — what he and his co-counsel told Booker on this subject. Atkins,' Booker, and the Reverend Frederick Powers, Jr., a prison chaplain who attended a number of meetings of Booker and his counsel, were all unable to recall exactly what was said about the use of the evidence of Booker’s diminished responsibility. They might have told Booker that he had an unquestionable right to present his evidence, or they might have told him only that they thought they had a reasonable chance of persuading the Pennsylvania courts to admit such evidence.

It is most instructive to elaborate on the reasoning of the post-conviction hearing judge before presenting our own basis for deciding this case. Having turned down the plea bargain, Booker had three options: plead not guilty; plead not guilty by reason of insanity; and plead guilty, but try to present evidence of diminished responsibility. An important factor in choosing among these options was that Atkins regarded the judge to whom Booker would have been assigned for jury trial as increasing considerably the likelihood of a conviction for first degree murder. Paramount, of course, was, the gruesome nature of the killing, amply demonstrated by a series of photographs taken by police of the dead wife’s body with the arrows still in it. Therefore, while there was some evidence of provocation sufficient for establishing manslaughter, a plea of not guilty to murder would have been extremely risky.

The major difficulty with an insanity plea was that Atkins and Della Porta did not believe the evidence was sufficient to meet the M’Naughten Rule. The post-conviction hearing judge found that this assessment was reasonable and we agree. We note that at Booker’s trial on degree of guilt, Dr. Louis C. Alikakos, the psychiatrist whose opinion of Booker was crucial to an insanity defense, would not state that Booker did not know right from wrong. Unless Booker’s evidence could meet the M’Naughten Rule, it would, under Ahearn and Rightnour, have been no more admissible before a jury than at a three-judge trial, following a guilty plea, on the degree of guilt. Consequently, the third option, which was chosen, seems preferable to the other two.

We need not, however, rely upon this line of reasoning to reach our decision. For present purposes we shall assume as true the factual contentions which Booker attempted to prove at the post-eonviction hearing, even though the record does not unequivocably establish their correctness. That is, we assume that Della Porta and Atkins told Booker that he could present psychiatric testimony on diminished responsibility. After having read the entire trial record carefully we are convinced that, whether or not the court should have been faithful to Ahearn and the other Pennsylvania Supreme Court cases, it did allow Booker to present such testimony on diminished responsibility. The court permitted Dr. Alikakos to testify at length with minimal restriction. The court did not cut off Atkins when, in his closing argument, he clearly asserted that the evidence of diminished responsibility prevented a determination of first degree murder. On the contrary, in a subsequent colloquy with Della Porta the court indicated its understanding of Atkins’ argument. The court reached a result unfavorable to Booker not because it failed to consider his defense, but rather because it did not accept the contention that the evidence established that relator had such diminished responsibility that it negated the intent required for first degree murder. That this was the court’s reasoning is clearly demonstrated by, for example, its suggestion that Booker wrote the message about his son on the wall in a clever attempt to lay a foundation for a future insanity defense.

We cannot agree that the relator is entitled to an evidentiary hearing on this record and believe that the cases cited at page 2 of the dissenting opinion of Judge Gibbons are significantly different from this case. The December 20, 1971, opinion of the state court referred to at page 2 above recites that “the ease was remanded by the Pennsylvania Supreme Court for an evidentiary hearing to consider the claims raised by the defendant, namely, whether his guilty plea was valid; whether he was deprived of his constitutional right to be represented by competent counsel.” That court found, inter alia, at pages 4 and 6, respectively:

“Thus we conclude, and find as a fact, that the defendant entered his guilty plea knowingly, intelligently and voluntarily and such a plea was valid.
“Therefore, the only reasonable election for defendant and his counsel was to plead guilty to murder generally and present evidence which would convince a three-judge trial court, or the Pennsylvania Supreme Court that defendant had a diminished responsibility at the time of the commission of the offense.
“We conclude, therefore, that under the facts and circumstances in this case there was some reasonable basis for the defendant to plead guilty to murder generally as he did. Therefore, we find as a fact that defendant was not deprived of his constitutional right to representation by competent counsel; on the other hand, his trial counsel were diligent and competent in their representation of him.” (Emphasis in original.)

See 28 U.S.C. § 2254(d); Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

Under these circumstances, the following language of Mr. Justice Pitney in Frank v. Magnum, 237 U.S. 309, 333-334, 35 S.Ct. 582, 590, 59 L.Ed. 969 (1915), seems particularly applicable:

“ . . . [T]his does not mean that [the state court] decision may be ignored or disregarded. To do this . would be not merely to disregard comity, but to ignore the essential question before us, which is not the guilt or innocence of the prisoner, or the truth of any particular fact asserted by him, but whether the state, taking into view the entire course of its procedure, has deprived him of due process of law. This familiar phrase does not mean that the operations of the state government should be conducted without error or fault in any particular case. . . . ”

In commenting on this language, Professor Bator has said in “Finality in Federal Criminal Law and Federal Ha-beas Corpus for State Prisoners,” 76 Harv.L.Rev. 441 (1963), at 487:

“ . . . [T]he Frank opinion does, concededly, state what I conceive to be simple common sense but which others may regard as restrictive: that the fact that an unbiased court of competent jurisdiction has previously adjudicated, through a full and fair litigation, the merits of whether a defendant’s federal rights were violated is crucially relevant to the question whether his detention may on habeas corpus be considered unlawful because he was denied due process of law. I regard this as common sense because it directs the inquiry on habeas corpus to the meaningful question whether the totality of state process assures us of a reasoned probability that justice was done, rather than whether in some ultimate sense the truth was in fact found.”

One final contention of Mr. Booker — that he was denied effective assistance of counsel when at the trial Atkins and Della Porta waived all objection to the admission of his confession —is without merit.

The order of the district court will be affirmed.

GIBBONS, Circuit Judge

(dissenting).

In this appeal from an order denying a writ of habeas corpus without an evi-dentiary hearing a state prisoner contends that his guilty plea was induced by the representation of his attorneys that in his Pennsylvania degree of guilt hearing the court would consider evidence of diminished responsibility. As the majority opinion makes clear, if such a representation was made by his attorneys, it was a misstatement of the then governing Pennsylvania law. Commonwealth v. Weinstein, 442 Pa. 70, 274 A.2d 182, cert. denied, 404 U.S. 846, 92 S.Ct. 148, 30 L.Ed.2d 83 (1971); Commonwealth v. Rightnour, 435 Pa. 104, 253 A.2d 644 (1969) (per curiam) ; Commonwealth v. Phelan, 427 Pa. 265, 234 A.2d 540 (1967), cert. denied, 391 U.S. 920 (1968); Commonwealth v. Ahearn, 421 Pa. 311, 218 A.2d 561 (1966). The fact that such advice anticipated the result in Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972), which overruled the Ahearn prohibition against consideration of such evidence in a degree of guilt hearing, is irrelevant for present purposes. The issue is the effect of such a misstatement of the then applicable law on the voluntariness of the guilty plea.

The majority opinion also makes clear that the state court record would not support a finding by the habeas corpus court that the alleged misstatement of the law did not take place. See 28 U.S. C. § 2254(d) (1), (3), (6). As Judge Van Dusen puts it:

“They might have told Booker that he had an unquestioned right to present his evidence, or they might have told him only that they thought they had a reasonable chance of persuading the Pennsylvania courts to admit such evidence.”

Thus, if the outside-the-record misstatement of the law took place and bears upon the voluntariness of the guilty plea, an evidentiary hearing should have been held in the habeas corpus court. Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973) (per curiam); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Moorhead v. United States, 456 F.2d 992 (3d Cir. 1972); United States ex rel. Davis v. Yeager, 453 F.2d 1001 (3d Cir. 1971).

The majority opinion overcomes this difficulty, however, by assuming as true that the petitioner’s attorneys represented to him that in the degree of guilt hearing the court would receive and consider evidence of diminished responsibility. It suggests that the degree of guilt hearing court did receive such evidence, and rejected the defense on the merits. As the majority puts it:

“The court reached a result unfavorable to Booker not because it failed to consider his defense, but rather because it did not accept the contention that the evidence established that relator had such diminished responsibility that it negated the intent required for first degree murder.”

Here, the issue is fudged by an ambiguity. Does this mean that, contrary to Weinstein, Rightnour, Phelan and Ahearn, the degree of guilt hearing court considered evidence of diminished responsibility to be relevant on degree of guilt, and ruled that the evidence established no such diminished responsibility? Or does it mean that the court received such evidence in the nature of an offer of proof, but rejected it on the merits as irrelevant to degree of guilt, as required by Weinstein, Rightnour, Phelan, and Ahearn? If the latter, then accepting petitioner’s factual representations, there was still a material misstatement of the law, and the effect of that misstatement on his guilty plea still would have to be determined. Only if the state court record adequately establishes that the degree of guilt hearing court considered the tendered evidence of diminished responsibility in determining degree of guilt would the misstatement of Pennsylvania law become, as the majority opinion suggests, inoperative.

I have read the same state record. It does not establish that the degree of guilt hearing court considered evidence of diminished responsibility in determining degree of guilt.

The defense offered the testimony of Albert Levitt, Chief Psychologist (tr. 74-93), and of Dr. C. Fred Hering III, Director of the Psychiatric Division, Philadelphia Common Pleas Court (tr. 93-107) in an effort to establish that petitioner was psychotic at the time he made a confession, eighteen hours after the homicide. The evidence of these witnesses was considered only for the weight to be given to the confession, (tr. 107). The defense also offered the testimony of Dr. Louis C. Alikakos, who examined petitioner on two occasions prior to the degree of guilt hearing. Alikakos gave his opinion:

“He lost control of the situation and had the irresistible impulse to kill his wife.” (tr. 133-34).

This testimony established that the degree of guilt hearing court received evidence of diminished responsibility. During Alikakos’ cross-examination, however, the court made clear that it considered the Ahearn rule to be controlling. E.g.:

“By Judge Lagakos:

Q. But wouldn’t any person who kills his wife and then attempts to kill the child, in your opinion, then be psy-chiatrieally defective to a point where you would state that in your judgment he was unable to tell the difference between right and wrong, and, therefore, was insane — any person ?

******

A. I would think this would depend on a number of variables, the amount of premeditation involved in it, the kinds of stressful situations involved. I wouldn’t say that the answer to your question would be no, Your Honor. I don’t believe that every person who does this kind of an act in every different type of situation is insane.

* * * * * *

Q. And as a result of what he told you and solely what he told you, you concluded that at the time of the incident, about ten months previously, he was psychiatrically — what is the expression you used?

A. That he had an irresistible impulse. (tr. 150-51).

******

By Judge Nix:

Q. In other words, you are saying that there is no question in your mind he knew the nature and quality of the act when he discharged these arrows toward her person?

A. I would hesitate to say that I am sure that he knew the nature and quality of his act. I think that would be an extremely difficult thing to determine after the fact not having had the opportunity to examine him at the time that this happened. He may not have known the full nature of the act that he was committing. I can’t say that he did or that he did not at this point.

By Judge Lagakos:

Q. How can you say that he was psychiatrically imbalanced to a point where I think you testified that in essence did not know — .

Judge Nix: No, that he had no irresistible impulse.

By Judge Lagakos:

Q. —irresistible impulse ?

A. I am saying that he had a diminished ability to recognize what he was doing and to control what he was doing, to control the impulses that he had, which is different than knowing right from wrong.

Judge Nix: I didn’t ask you that. I merely said that he knew the significance of his act, did he not ?

Judge Lagakos: The quality.

Judge Nix: I am not asking you to determine whether he could make a moral judgment at this particular point, just knew the effect of taking a bow and arrow and shooting five arrows into the person of a living human being.

The Witness: I misunderstood your original question. I think he did know the fact that the arrow would kill her if that is what you are asking, Your Honor.

Judge Nix: Yes.

The Witness: I believe he did know that.” (tr. 154-55).

When Dr. Alikakos’ report and that of Dr. Strauss were offered in evidence the Commonwealth objected:

“Mr. Czap: Your Honor, I take it that these reports are being offered by the defendants and subject to my objection as to how they were used? The Commonwealth makes no issue about the fact that Dr. Strauss is not here.

Judge Nix: Would you explain the nature and quality of your objection? Are you objecting to their being admitted at this point ?

Mr. Czap: No, I object only to their relevancy and to their use — that their use be limited to that part of the case where it is proper for Your Honor to consider it.” (tr. 158).

When the Court finally ruled on the renewed offer of these reports (tr. 270), this occurred:

“Judge Nix: Any objection, Mr. Czap?

Mr. Czap: No objection to the point that Dr. Alikakos being limited to the extent his testimony was permitted.

Judge Nix: Certainly. The offer is accepted.” (tr. 270-71).

As I read the transcript the Commonwealth objected to consideration of Dr. Alikakos’ testimony or reports on degree of guilt, but had no objection to consideration of either on sentencing, and the reports were admitted' subject to that objection.

As the majority opinion points out, defense counsel did attempt to argue that diminished responsibility bore upon degree of guilt. But it is hardly a fair representation of the transcript to suggest that the court considered the argument to be relevant on that issue. From the quotation of Judge Nix set forth in footnote 15 of the majority opinion, this opening sentence has been omitted.

“Judge Nix: I think you are wasting time discussing it. . . .” (tr. 327).

On the next page this appears:

“Mr. Della Porta: . . [W]e do have Dr. Alikakos; we do have Dr. Strauss who will say at that time of the act, he was under this irresistible impulse at that time his ability had been diminished to know right from wrong.

JUDGE LAGAKOS: Mr. Della

Porta, are you seriously suggesting to the Court that there exists in this case facts which constitute sufficient recognized legal provocation on his part at that moment?

* * * * * *

MR. DELLA PORTA: All that we need is that the mind was deprived of his reasoning powers. And if we take hold of all the circumstances before this happened — .

JUDGE NIX: That is not enough.” (tr. 328-29).

The record contains no statement by any one of the three judges, either while evidence was being taken, or during the closing arguments, or at the time they announced their first degree finding (tr. 347-48) that they ever considered the diminished responsibility evidence to be relevant in determining degree of guilt. The only statements in the record indicate that they considered themselves bound by the Ahearn rule.

The Pennsylvania courts which have considered the petitioner’s case did not discover that the degree of guilt court had considered the diminished responsibility defense. The district court did not discover that the degree of guilt court had considered the diminished responsibility defense. The state court record discloses that it was considered only to the extent that it was rejected as irrelevant. Thus, we are squarely presented with the issue whether the petitioner’s guilty plea was induced by a misstatement by counsel that evidence of diminished responsibility would be taken into consideration in determining degree of guilt. 28 U.S.C. § 2254(d) and Townsend v. Sain, supra, mandate an ev-. identiary hearing on that issue. I would reverse and remand for such a hearing.

      . Post-Conviction Hearing Notes of Testimony (PCHNT) 11.

      . Accord, Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).

      . See PCHNT 47-48.

      . See PCHNT 27.

      . Cf. PCHNT 74, 76.

      . The record makes clear that Atkins articulated this threat to Booker. See PCHNT 57-58 (testimony of Atkins) ; PCHNT 33-34 (testimony of Booker).

      . Booker told Rev. Powers, and later his lawyers, that when he arrived at his house on October 23rd he saw a man leaving; he was told by his wife that this man was the real father of his son. It must be noted, though, that he did not offer this explanation until well after the crime, that it conflicted with the confession given the police, that it could of course not be corroborated by the wife, and that there was apparently no other evidence of infidelity on the part of his wife. See PCHNT 68-69.

      . See PCHNT 43-44.

      . See N.T. 154-55.

      . Because we assume these contentions to be true, a further evidentiary hearing on them would serve no purpose. In addition, we think that the record of the trial on guilt so clearly demonstrates what the state trial court did as regards the psychiatric testimony, that any hearing as to what the court did would also be pointless!

      . In his brief at 7, and his reply brief at 4, Booker calls our attention to the following pages as support for the proposition that the court did not consider the psychiatric evidence: N.T. 74-75, 154-55, 158, 162-63, 167-68, 270. We have recheeked these passages and find them unpersuasive.

      . The doctor’s testimony is transcribed at N.T. 125-61.

      . See N.T. 125-26; 270-71.

      . See N.T. 295-313, especially 295-96, 312.

      . After Mr. (now Judge) Della Porta argued that an argument of relator with his wife, during which she had incorrectly accused him of being out with another woman, furnished provocation sufficient to reduce the degree of guilt to voluntary manslaughter, Judge Nix rejected the argument that such “legal provocation” was present but went on to say at N.T. 327:
      “Judge Nix: ... I had taken from Mr. Atkins’ argument that he was pointing out that this was to negate the specific intent to kill, which would be a reasonable argument under the circumstances.”
      Again, at 329, this colloquy appears:
      “Mr. Della Porta: That certainly takes away any possible planning or intent or — ■
      “Judge Nix: That is going back to Mr. Atkins.
      “Mr. Della Porta: —or willfulness.
      “Judge Nix: That is as to the issue of first or second degree. All right.”
      See N.T. 327-29. At N.T. 342-43, the prosecutor argued that:
      “With respect to irresistible impulse and diminished responsibility, Your Honor, I don’t think they have been made out.”
      See also N.T. 345. In Mr. Atkins’ rebuttal argument at N.T. 346, he concluded at N.T. 346-47:
      “[W]e honestly feel that this was the result of a mind which was diminished in its capacity, and that you can feel free to take this into consideration. And that all of the circumstances should allow — under all the circumstances that the presumption of second degree should not be raised to first degree.”
      Also, Mr. Atkins testified during the post-conviction hearing, not that the state trial court had not considered the evidence of diminished responsibility on the issue of the intent required for first degree, as opposed to second degree, murder but that (PCHNT 48) “ [apparently, the court didn’t believe it [the contention of diminished responsibility].”

      . See N.T. 297-305 (especially 304-05), 319.
      We note that Booker does not contend that Atkins and Della Porta guaranteed that the court would accept his evidence. See brief at 8: “Mr. Booker was erroneously advised that the evidence would be received, considered, and, if believed, he would, not he convicted of first degree murder” (emphasis in original). Such an argument would be hard to establish. See United States ex rel. Curtis v. Zelker, 466 F.2d 1092, 1098 (2d Cir. 1972).

      . But Cf. “Developments in the Law, Federal Habeas Corpus,” 83 Harv.L.Rev. 1038, 1055-1062 (1970).

      . This language of Professor Bator, 76 Harv.L.Rev. at 525, seems particularly applicable to this record:
      “I rest partly on the federalist premise, that the abrasions and conflicts created by federal interference with the states’ administration of criminal justice should be avoided in the absence of felt need, where the institutional necessities are as dubious as they seem to «me to be in this case. I also reason from the very real claims which the need for finality and repose seem to me to make on the criminal process, claims particularly strong in view of what I consider to be philosophically faulty premises about justice which are often at the heart of the demand that we repeat inquiry endlessly to make sure that no mistake has been made.”

      . See POHNT 53-54.

      . The Pennsylvania Post Conviction Hearing Act court held that Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), precluded inquiry beyond the on-the-record colloquy at the guilty plea. The law is otherwise. Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973) (per curiam) ; Moorhead v. United States, 456 F.2d 992 (3d Cir. 1972) ; United States ex rel. Davis v. Yeager, 453 F.2d 1001 (3d Cir. 1971).

      . The district court merely approved the findings of the Pennsylvania Post Conviction Hearing Act court.


author: TALBOT SMITH, Senior District Judge. BRIGHT, Circuit Judge,

text:
    Norma SCHEELHAASE, Plaintiff-Appellee, v. WOODBURY CENTRAL COMMUNITY SCHOOL DISTRICT et al., Defendants-Appellants.
    No. 73-1067.
    United States Court of Appeals, Eighth Circuit
    Submitted Sept. 11, 1973.
    Decided Nov. 28, 1973.
    Rehearing and Rehearing En Banc Denied Jan. 30, 1974.

      Lowell C. Kindig and Maurice B. Nie-land, Sioux City, Iowa, for defendants-appellants.
    Harry H. Smith, Sioux City, Iowa, for plaintiff-appellee.
    Michael H. Gottesman, Washington, D. C., amicus.
    Before GIBSON and BRIGHT, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       Honorable Talbot Smith, United States Senior District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT SMITH, Senior District Judge.

The issue before us is one of Federal jurisdiction with respect to the continued employment of a non-tenured teacher under Iowa law. Her contract was not renewed by the Board of Education. She comes before us “invok[ing] the jurisdiction of this Court pursuant to Amendments I and XIV of the Constitution of the United States and 42 U.S.C. § 1983,” asserting that her non-renewal “involves an issue of substantive due process.”

The facts present a picture of internal and local dissension. On the one hand we have the (then) recently appointed Superintendent of the defendant district, Mr. Devine, and the defendant School Board. On the other we have a discharged teacher (the appellee herein), having had some ten years of school employment, and her supporters. The background of the situation illuminates the issues presented.- Superintendent Devine is a relative newcomer to the district, though not to the teaching profession, having been teaching since 1937 and having been Superintendent in various Iowa schools since 1940.

When first interviewed, he testified, he was informed “that -the scholastic program at the school had been criticized by the North Central Examining Committee and that they were on the unapproved list of the Iowa Department of Public Instruction and they were criticized by the North Central Association.” Under date of November 18, 1968, the Department of Public Instruction of the State of Iowa notified the school district that “you have one year from the date of Board action to correct the indicated deficiencies or be removed from the list of approved schools.” Upon Superintendent Devine’s assumption of duties he took various remedial steps, unnecessary to record here. With respect to the appellee, Mrs. Scheelhaase, a tentative decision was reached not to renew her contract and she was so informed, as well as of her statutory rights to a private and public hearing. These were held but, from her point of view, to no avail, for it was the ultimate decision of the Board that her contract not be renewed. This action followed.

At the trial the appellee contended that she had been discharged solely because of the showing of her students in the tests given them, that such use of the tests “finds no support in educational policy,” that, in addition, the appellants had failed to interpret the tests properly, and, moreover, that the tests actually showed her students to be making normal progress. Yet, notwithstanding, her contract had not been renewed. For these reasons, she asserts, the appellants’ failure to renew on the ground of allegedly low test scores “violated her Fourteenth Amendment rights.”

The appellants, on the other hand, insisted that the tests in fact did reveal low scores for her pupils, that the tests had in fact been properly employed, and that “use of the ITBS scores as a measure of teacher competence stood as a reasonable and valid exercise of administrative discretion.” In addition, appellants argue a lack of federal jurisdiction, in that appellee had no constitutionally protected right of renewal, the matter of renewal or nonrenewal of a teacher’s contract being entrusted by the applicable state statutes to the discretion of the local Board.

It was the finding of the trial court that a teacher’s professional competence could not be determined solely on the basis of her students’ achievements on the ITBS (Iowa Test of Basic Skills) and ITED (Iowa Tests of Educational Development), such being the specific reason given for termination, that appellee had a “property interest” in her contract of employment, and, “that the right to renewal thereof may not be denied without due process of law” which demanded that the reasons for termination “may not be arbitrary and capricious but must have a basis in fact.” She was ordered reinstated and granted damages. D.C., 349 F.Supp. 988.

Thus the bare bones of the controversy. We will proceed directly to the basic issue before us, the jurisdiction of the Federal court upon these facts. Under Iowa law teachers do not enjoy tenure. Rather they are hired on a year to year basis. The pertinent statute provides that a teaching contract can extend only through the ensuing year and is subject to review on or before April 15th of each year. The appellee was thus put on notice that her contract, under Iowa Law, could not extend for a longer period than the ensuing school year, but that it would be automatically renewed unless the Board of Education decided to terminate. In such event, the statute provides, she is entitled to a private and a public hearing, both of which were had in this case. (Discharge for cause at any time during the school year is covered by another statute, Sec. 279.24, 1971 Code of Iowa. The matter before us is a nonrenewal situation, not a discharge for cause.)

The reason for the one-year limitation expressed in the teacher-contract statute was made clear in the case of Miner v. Lovilia Independent School District, 212 Iowa 973, 234 N.W. 817 (1931) wherein the court examined the contract and held as follows:

It will be noted that this section is affirmatively mandatory rather than prohibitive. It requires that the contract whatever it be, shall be in writing. It specifies certain subjects to be covered therein. It imposes no disability upon the contracting parties except that the term of service shall not exceed one year. Subject to this single disability, the right of contract, as between contracting parties, is in no manner abridged.
******
It is argued that this statute was enacted for the protection of the teacher. There is quite as much reason for saying that it was enacted primarily for protecting the school district. Prior to the enactment of this particular feature of the statute, there existed in many parts of the state quite a notorious and nefarious practice on the part of outgoing school boards whereby teachers selected by the outgoing board were employed for a term of years and this was done for the purpose of circumventing the incoming school board in their legitimate selection of teachers during the terms of their own incumbency. The single disability contained in this section was effective to stop such practice. In all other respects the contents of the contract are to be determined in writing by the mutual agreement of the contracting parties
«■ -X- *

As to Section 279.24, the discharge for cause section, the Court held that:

* * * we find that it provides the method of discharging a teacher for cause. This statute is applicable to every case of teacher’s employment even though the teacher had not consented thereto in his contract. These two sections must be read together. Neither of them should be strained or emphasized to the impairment of any provision of the other. Nor should either of them be interpreted as to eliminate any of its own provisions. (234 N.W. at 819.)

The case of Driver v. Independent School District of Sioux City, 224 Iowa 393, 276 N.W. 37 (1937) is also significant in a consideration of the law of Iowa respecting the powers of the Board in the employment of teachers. Here a discharged teacher brought a mandamus action to compel the district to re-employ her as a teacher. With respect to the issue before us the Court held:

The trial court was correct in holding that the matter of employment of teachers lies wholly within the discretionary power vested in the board of directors. This conclusion is borne out of the following authorities: Section 12441, Code, 1935; 38 C.J. pages 689, 691, 695; Neilan v. Board of Directors, 200 Iowa 860, 205 N.W. 506; Drew v. School District, 146 Iowa 721, 125 N.W. 815 * * * (276 N.W. at 39.)

It is clear from the cases quoted and cited that the function of the Board of Education under the applicable law of Iowa is to further the best interests of that segment of the state’s educational system entrusted to its care, Neilan v. Board of Directors of Independent School District of Sioux City, supra, including within such function the employment of teachers, Driver v. Independent School District of Sioux City, supra. In the performance of its duties the Board is empowered to act in accordance with its best discretion. It is possible that the discretion of a Board may, at times, to those more generously endowed, seem to have been exercised with a lack of wisdom. But the Board’s decisions in the exercise of its discretion are not vulnerable to our correction merely if they are “wrong”, sustainable only if they are “right”. As the Iowa court put it in Rehmann v. City of Des Moines, 204 Iowa 798, 215 N.W. 957 (1927):

They may judge wrongly, and so may a court or other tribunal, but the party complaining can have no action when the officers act in good faith and in the line of what they think is honestly their duty. (215 N.W. at 960.)

But the thrust of appellee’s argument goes beyond mere error in the exercise of discretion. It is alleged (and was found) to be action so unwarranted in the premises as to be arbitrary and capricious, an abuse of the Board’s discretion. And thus it is, against this background of charges, hearings, administrative a'ction, and trial rulings that we reach the question of our jurisdiction in the premises.

The question is not new to us and we need not reexamine in detail. In Freeman v. Gould Special School District of Lincoln County, Ark., 405 F.2d 1153 (8th Cir. 1969), we considered the case of six school teachers whose contracts were not renewed at their termination. In Arkansas, as in Iowa, the law does not provide for a tenure system, but rather teachers are employed on an annual contract with automatic renewal unless written notice to the contrary is given within a prescribed time. The Arkansas law did not (unlike Iowa) provide for a hearing, although one was given. It was the claim of the teachers that the Board’s decision not to rehire them, on the basis of a recommendation by the principal, was arbitrary, eapri-cious, and unreasonable, thereby violating the due process and equal protection clauses of the Fourteenth Amendment. We held not. It was our holding (q.v.) that in the absence of a tenure statute a local school board has the right to decline to employ or to re-employ any teacher for any reason or for no reason as long as such a decision is not violative of a specific constitutional right. As we there said:

Almost all of the cases cited in support of plaintiffs’ [teachers’] position are concerned with either racial discrimination or an invasion of a constitutionally protected right or privilege by way of a statute or regulation. We agree that the teachers are protected under the Equal Protection Clause from discrimination on account of race or religion or in their assertion of constitutionally protected rights, but no case cited by plaintiffs had gone so far as to say that all actions of any government board or agency in employment cases must accord the individual due process under the Fourteenth Amendment so as to provide tenure and a right to retain the position, except for cause. And “for cause” presupposes a right to hearing, notice, and appeal. Many government employees are under civil service and some under tenure. Absent these security provisions a public employee has no right to continued public employment, except insofar as he may not be dismissed or failed to be rehired for impermissible constitutional reasons, such as race, religion, or the assertion of rights guaranteed by law or the Constitution. (405 F. 2d at 1159.)

The holding is equally applicable here. Stripped to its essentials the appellee’s argument, as she puts it, is that “failing to renew a teacher’s contract for a reason lacking basis in fact [the results of the tests given] stands especially repulsive to due process fairness where, as here, the teacher enjoys a legitimate expectation of re-employment.” It would follow that appellee’s years of service with the school district vested in her such a “property,” in her job that the theretofore unlimited discretion of the School Board no longer obtained, she being thus invested, as we noted in Freeman, with a tenure status, despite the contrary wording of the statute.

But appellee argues that as applied to her situation the authority of Freeman is eroded by our later case of Fisher v. Snyder, 476 F.2d 375 (8th Cir. 1973). We do not so regard it. Fisher involved the situation of a female teacher who was discharged on specious and unwarranted grounds of sexual misconduct. We affirmed the district court’s finding that although a school board may legitimately inquire into the character and integrity of its teachers, it may not arbitrarily and capriciously discharge a teacher based on unsupported conclusions drawn from such inquiries, in view of the defamatory nature of the charges made. The principle here involved is not to be pushed beyond its narrow parameters upon the theory that any dismissal, particularly for a degree of incompetence, may to some degree impair professional standing. It may, or it may not, depending on the circumstances, but whether or not, what we ruled upon. in Fisher was essentially a charge of immorality, a slanderous assault upon moral rectitude, not simply an alleged impairment of professional standing by reason of discharge. This it is clear, does not invoke the Fisher doctrine.

Finally, we are constrained to observe, in view of the multiplicity of “civil rights” actions now being brought into the Federal courts on non-racial, nonspecific constitutional grounds, that

Not every civil right is a right derived or secured by the Constitution or laws of the United States * * *. Only those rights, privileges and immunities that are secured by the Constitution of the United States or some Act of Congress are within the protection of the federal courts. Rights, privileges and immunities not derived from the federal Constitution or secured thereby are left exclusively to the protection of the states. [1 Barron & Holtzoff, Federal Practice and Procedure, § 37.]

Significant, also, not only with respect to the above caveat, but as well with respect to the many cases involving the discharge of teachers now coming before the Federal courts as civil rights actions, are the concurring observations of Chief Justice Burger in Board of Regents v. Roth, supra, and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972):

I concur in the Court’s judgments and opinions in Perry and Roth but there is one central point in both decisions that I would like to underscore since it may have been obscured in the comprehensive discussion of the cases. That point is that the relationship between a state institution and one of its teachers is essentially a matter of state concern and state law. The Court holds today only that a state-employed teacher who has a right to re-employment under state law, arising from either an express or implied contract, has, in turn, a right guaranteed by the Fourteenth Amendment to some form of prior administrative or academic hearing on the cause for nonrenewal of his contract. Thus, whether a particular teacher in a particular context has any right to such administrative hearing hinges on a question of state law. The Court’s opinion makes this point very sharply:
‘Property interests * * * are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law * * *.’ Board of Regents v. Roth, ante, 408 U.S. at 577, 92 S.Ct. 270.
Because the availability of the Fourteenth Amendment right to a prior administrative hearing turns in each case on a question of state law, the issue of abstention will arise in future cases contesting whether a particular teacher is entitled to a hearing prior to nonrenewal of his contract. If relevant state contract law is unclear, a federal court should, in my view, abstain from deciding whether he is constitutionally entitled to a prior hearing, and the teacher should be left to resort to state courts on the questions arising under state law.

We need not pass upon the nature of the interest of the teacher required that she may demand as of right a hearing upon her termination, Perry v. Sindermann, supra, for here the governing statute provided for a hearing, which she had. It is our holding that the administration of the internal affairs of the school district before us has not passed by judicial fiat from the local board, where it was lodged by statute, to the Federal court. Such matters as the competence of teachers, and the standards of its measurement are not, without more, matters of constitutional dimensions. They are peculiarly appropriate to state and local administration.

In this case we find no violation of appellee’s civil rights, nor a Federal due process issue. In short, as we held in Harnett v. Ulett, 466 F.2d 113 (8th Cir. 1972), citing Freeman v. Gould, supra,

Roth [supra] and Sindermann [supra] adhere to the principle that absent contractual, legislative or constitutional provision on the subject, the power of removal is incident to the power of appointment, and government employment can be revoked at the will of the appointing officer. [466 F.2d at 117.]

In the view we have taken of the case we do not rule upon the additional issues presented.

The decision of the District Court is reversed and the case is remanded with instructions to dismiss the complaint.

BRIGHT, Circuit Judge,

concurring.

My concurrence is limited to the result. In light of our recent decisions in Strickland v. Inlow, 485 F.2d 186 (8th Cir., filed Aug. 29, 1973) and Fisher v. Snyder, 476 F.2d 375 (8th Cir. 1973), I think it is fair to say that the concept of substantive due process is not wholly alien to the administration of public schools.

* We need not spell out the dimensions or limitations of that doctrine here, for I am satisfied on this record that appel-lee has not shown the action of the Board to have been arbitrary and capricious.

The record in this case shows that Superintendent W. B. Devine came to the Woodbury school system prior to the 1969-1970 school year. He testified as to his efforts to upgrade the school system. In February, he visited appellee’s English class and observed her teaching methods and her classroom relationship with students. Following this visitation he advised appellee that her work was unsatisfactory.

On March 13, 1970, he wrote Mrs. Scheelhaase:

The Woodbury Central School board is considering terminating your contract at the conclusion of the current 1969-70 school year.
Under Section 279.13 of the Code of Iowa, you have the right to request a private conference with the board. This must be done within five days of the receipt of this notice. You may also request a written statement. In you [sic] case it will be the low scholastic accomplishment as indicated by Basic Skills and I.T.E.D. tests.

The notice of termination given by the Board reiterated:

In compliance with Section 279.13 of the Code of Iowa, the following reason is given for your contract termination.
Below average scholastic accomplishment of your students in the area of your responsibility. (Language Arts)

At the trial, Superintendent Devine testified that he had recommended that the Board not renew her contract because her students displayed low scholastic performance in the language arts area and that one of the indications of this low achievement was the current Basic Skills tests. Mrs. Seheelhaase’s witnesses all testified that it was improper to use these test scores as a basis for evaluating a teacher’s performance. The district court specifically found in this regard:

4. The specific reason given plaintiff for termination was her professional incompetence as indicated by the low scholastic accomplishment of her students on the Iowa Tests of Basic Skills (ITBS) and Iowa Tests of Educational Development (ITED) [footnote omitted].
5. A teacher’s professional competence cannot be determined solely on the basis of her students’ achievement on the ITBS and ITED, especially where the students maintain normal educational growth rates.

But neither the testimony of appellee’s experts in the educational field nor the trial court’s finding suffices to establish the actions of the Board or Superintendent Devine as arbitrary and capricious.

Appellant-Devine possesses a Masters Degree in his field and has attained credit toward a Ph.D. degree. He has served as a teacher and a superintendent of schools for more than 14 years. In his work he has made a study of the Iowa Tests of Basie Skills and of Educational Developments. Without dispute, Mrs. Scheelhaase’s students disclosed below-average accomplishment in her subjects. The superintendent, in concluding on his experience that these test results reflected adversely upon the teaching competence of Mrs. Scheelhaase, may have been erroneous but the conclusion was not an unreasoned one, and that is the test.

The Board was entitled to rely upon the recommendation and conclusions of its Superintendent, notwithstanding the existence of strong opinions contrary to his regarding the use of the ITBS or ITED tests as a tool for teacher evaluation. Given a choice between experts, the Board was entitled to rely upon its own. In this case, the district court found that, “[a] teacher’s professional competence cannot be determined solely on the basis of her students’ achievement on the ITBS and ITED, especially where the students maintain normal educational growth rates.” We have no disagreement with such a statement. But in the Woodbury School District, based upon his education and training, the Superintendent arrived at a contrary determination relating to students in Mrs. Scheelhaase’s class. Thus its decision, even though premised upon an apparently erroneous “expert opinion,” cannot be faulted as arbitrary and capricious. The Board’s mere mistake in judgment or in weighing the evidence does not demonstrate any violation of substantive due process.

The Superintendent and the Board for the Woodbury, Iowa, Central Community School District possessed the right and responsibility of evaluating its teacher personnel, and such evaluations, where they are based on some evidence, even though possibly erroneous, will not serve to make those determinations subject to judicial review as unconstitutionally arbitrary and capricious.

      . The trial court found jurisdiction of the parties and the subject matter under 28 U. S.C. § 1343 and 42 U.S.C. § 1983. The First Amendment claim has not been briefed to us and we were informed on oral argument that no claim thereunder is being asserted. The trial court based its determination on the Fourteenth Amendment.

      . App. 78.

      . Defendant’s Ex. P., App. 165-168. By letter dated October 21, 1969, Superintendent Devine was notified that the school would be continued on the approved list, action having been taken “to correct the previously noted deficiencies” commending “you [Superintendent Devine] and your board of education for this response to meeting minimum standards.”

      . Letter dated March 13, 1970 addressed to Mrs. Scheelhaase from Woodbury Central Community School District signed by W. D. Devine, Superintendent of Schools, states as follows:
      “The Woodbury Central School board is considering terminating your contract at the conclusion of the current 1969-70 school year.
      “Under section 279.13 of the Code of Iowa, you have the right to request a private conference with the board. This must be done within five days of the receipt of this notice. You may also request a written statement. In you [sic] case it will be the low scholastic accomplishment as indicated by Basic Skills and I.T.E.D. tests.”

      . Letters dated April 8, 1970 and April 11, 1970, as follows:
      “This is official notification that your contract has been terminated effective at the end of the 1969-70 school year. This is in compliance with Section 279.139 the Code of , Iowa. The complete board was in attendance and the vote was unanimous for termination.” /s/ W. H. Devine.
      “In compliance with Section 279.13 of the Code of Iowa, the following reason is given for your contract termination.
      “Below average scholastic accomplishment of your students in the area of your responsibility. (Language Arts.)
      “Our records show that in' letters sent to you on March 13 and March 23 the reason was given to you in writing. Our file copies show this fact.” /%/ Lewis Foster.

      . Additional reasons for termination, namely, a rote following of text materials, lack of congenial relationship between teacher and pupil, and indications of poor preparation, were sought to be presented at the trial as further justifications but were rejected by the Court as not having been asserted in the administrative proceedings.

      . “Contracts with teachers must be in writing, and shall state * * * such other matters as may be agreed upon, which may include employment for a term not exceeding the ensuing school year * * *. Said contract shall remain in force and effect for the period stated in the contract and thereafter shall be automatically continued in force and effect for equivalent periods, * * * until terminated as hereinafter provided * * *. On or before April 15th of each year, the teacher may file his written resignation * * * or the board may by majority vote of the elected membership of the board, cause said contract to be terminated by written notification of termination * * * provided, however, that at least ten days prior to mailing of any notice of termination, the board * * * shall inform the teacher in writing (1) the Board is considering termination of said contract and that (2) the teacher shall have the right to a private conference with the board if the teacher files a request therefor * * *. The teacher shall have the right to protest the action of the board and to a hearing thereon * * * in which event the board shall hold a public hearing on such protest * * *. Upon the conclusion of the hearing, the Board shall determine the question of continuance or discontinuance of the contract by a roll call vote * * *. The foregoing provisions for termination shall not affect the power of the board of directors to discharge a teacher for cause under the provisions of Sec. 279.24 * * * ” Sec. 279.13, 1971 Code of Iowa.

      . Cf. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) wherein the Court differentiated two situations : One, in which a State, in declining to rehire a teacher, made no charge against him “that might seriously damage his standing and associations in his community,” the other where the nonrenewal is based “on a charge, for example, that he had been guilty of dishonesty or immorality.” In that situation, commented the Court, “this would be a different case.” 408 U.S. at 573, 92 S.Ct. at 2707.

      . Brief of amicus National Education Association cites to us some eighty cases in this and related areas. See, also, comprehensive review of cases in Freeman v. Gould, supra, and Orr v. Trinter, 444 F.2d 128 (6th Cir. 1971), and cases therein cited. Law review studies, written prior to Board of Regents, and Perry, supra, are numerous, the leading articles and comments, with discussions of principles involved will be found in recent comments in 49 N.C.L.Rev. 302 (1971), 19 U.C.L.A.L.Rev. 1052 (1972) and 44 N.Y.U. L.Rev. 836 (1969).

      . “Proof of such a property interest would not, of course, entitle him to reinstatement. But such proof would obligate college officials to grant a hearing at his request, where he could be informed of the grounds for his nonretention and challenge their sufficiency.” 408 U.S. at 603, 92 S.Ct. at 2700.