Bob Fred Ashe v. Harold R. Swenson, Warden

BLACKMUN, Circuit Judge.

This habeas corpus appeal by a state prisoner presents to us the question of the continuing validity of Hoag v. State of New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958), a decision in which the Supreme Court divided five-to-three, with Mr. Justice Brennan not participating, and of Ciucci v. State of Illinois, 356 U.S. 571, 78 S.Ct. 839, 2 L.Ed.2d 983 (1958), a five-to-four decision. Four of the five Justices (Justices Frankfurter, Burton, Clark and Whit-taker) who, with Mr. Justice Harlan, comprised the majority in both cases are no longer active members…