the phenobarbital tablets to prisoners who asked for the same and to Hawryliak during the trial. 'Granted that Hawryliak voluntarily took and consumed the drug under the deplorable practice then existing at the jailhouse, the difference between his case and the Craig case is that Craig was visibly affected by the medicine but nowhere, including Hawryliak's own testimony is there one scintilla of evidence the relator was in any way disabled by the use of phenobarbital. Not until now has this matter been raised by Hawryliak and we are of the opinion that his position is without merit.'
If this case were called for a hearing in the District Court, the Court would be required to summon Judge Shumaker as a witness. It is quite obvious that Judge Shumaker had already set forth the facts as he personally knew them in this case. There is no reason why the District Court cannot accept the personally known facts of the Judge as set forth in his official opinion. This factual statement is offset only by what the relator says, that he was under the influence of barbiturates given to him by the jail keeper.
At an evidentiary hearing before this Court, the evidence would necessarily hinge upon the testimony as given by the relator and such testimony as might have been available by the calling of Judge Shumaker. But that now is unnecessary, because the relator has presented in his petition a copy of Judge Shumaker's opinion in which the Judge clearly sets out the facts which are now required for the attention of this Court.
Furthermore, Congress has provided that it shall be unnecessary to call a judge as a witness where application is made for a writ of habeas corpus. 28 U.S.C. § 2245 reads as follows:
'On the hearing of an application for a writ of habeas corpus to inquire into the legality of the detention of a person pursuant to a judgment the certificate of the judge who presided at the trial resulting in the judgment, setting forth the facts occurring at the trial, shall be admissible in the evidence. Copies of the certificate shall be filed with the court in which the application is pending and in the court in which the trial took place. June 25, 1948, c. 646, 62 Stat. 966.'
Although we do not have Judge Shumaker's certificate, we do have that which the relator has presented before us as the veritably accepted statement of Judge Shumaker as made in his opinion. In these circumstances it may here be accepted as the statement of fact of the trial judge.
I am of the opinion that I may accept this statement of Judge Shumaker as evidence in this case and to accept it as evidence with knowledge of what Judge Shumaker had done in the Craig case and of his concern in granting a new trial of his own motion in that case where it was obvious one should have been granted. Under the circumstances here, it is my opinion that there is not a sufficient basis for bringing in Judge Shumaker, the lawyers of the case, the jail keeper, the relator and the others who may have any testimony in this connection.
After reviewing all of the averments in the relator's petition, I find nothing that has not already been reviewed and given judicial consideration.
A hearing is not grantable as a matter of course. It should be allowablewhen certain requisite facts appear which make it necessary to adduce additional evidence or factual circumstances for the granting of a writ of habeas corpus. Analyzing, then, every averment of the relator's petition here, I find nothing which when measured by the record of this case, can lend support to his petition for granting a writ of habeas corpus. Just as every relator is not entitled as a matter of right to a writ of habeas corpus, neither is the relator automatically entitled as a matter of right to an evidentiary hearing. Turner v. State of Maryland, C.A.4, 1962, 303 F.2d 507; Fay v. Noia, 372 U.S. 391, 435, 83 S. Ct. 822, 9 L. Ed. 2d 837, 1963; Townsend v. Sain, supra; United States ex rel. Brown v. Commonwealth of Pennsylvania, No. 14259, C.A.3, 1963, 323 F.2d 53; Brown v. Allen, 344 U.S. 443, 460-465, 73 S. Ct. 397, 97 L. Ed. 469, 1943; Schlette v. People of State of California, C.A.9, 1960, 284 F.2d 827, cert. denied 366 U.S. 940, 81 S. Ct. 1664, 6 L. Ed. 2d 852, 1961.
The relator's petition will, therefore, be denied.