What is the test for dismissing a habeas petition?

However, it is equally true that the habeas court must itself insure that the relevant facts were found and that the correct legal standard was applied to them.¹³ 28 U.S.C. 2254(d) (1, 3, 6-8);

[487 F.2d 1011]

Townsend v. Sain, 372 U.S. 293, 312-319, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). It is only where "it can scarcely be doubted" that the relevant factual issues have been resolved against the petitioner and that "there is no evidence that the state trier utilized the wrong legal standard," that 2254 requires the habeas court to dismiss a subsequent petition without an independent evidentiary hearing. LaVallee v. Delle Rose, 410 U.S. 690, 692, 695, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973).

[487 F.2d 1011]