From Casetext: Smarter Legal Research

Vizzard v. Procunier

United States Court of Appeals, Ninth Circuit
Feb 19, 1971
439 F.2d 94 (9th Cir. 1971)

Opinion

No. 23483.

February 19, 1971.

W. Austin Cooper (argued), Sacramento, Cal., for petitioner-appellant.

Daniel Kremer (argued), Edsel W. Haws, Deputy Attys. Gen., Evelle J. Younger, Atty. Gen., Sacramento, Cal., for respondent-appellee.

Before MERRILL and CARTER, Circuit Judges, and THOMPSON, District Judge.

Hon. Bruce R. Thompson, United States District Judge, Reno, Nevada, sitting by designation.


The substance of this habeas petitioner's charges lies in the failure to provide counsel at his preliminary hearing. The right to counsel attaches at that time, Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), but the Coleman decision does not apply retroactively to petitioner's 1958 conviction. Olsen v. Ellsworth, 438 F.2d 630, February 8, 1971 (9th Cir.). An attorney was appointed for petitioner in the Superior Court and he entered a counseled plea of guilty. He does not impeach the voluntariness of his guilty plea other than to attribute it to earlier admissions of guilt which were allegedly improperly obtained at the time of arrest and at the preliminary hearing. These averments are inadequate to invoke federal habeas corpus jurisdiction. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).

Petitioner's claims of unconstitutional conviction have received careful and appropriate consideration in the California courts. In re Van Brunt, 242 Cal.App.2d 96, 51 Cal.Rptr. 136 (1966); In re Vizzard, 255 Cal.App.2d 571, 63 Cal.Rptr. 305 (1967).

The order denying the petition for habeas corpus is affirmed.


Summaries of

Vizzard v. Procunier

United States Court of Appeals, Ninth Circuit
Feb 19, 1971
439 F.2d 94 (9th Cir. 1971)
Case details for

Vizzard v. Procunier

Case Details

Full title:Hugh VIZZARD, Petitioner and Appellant, v. Raymond K. PROCUNIER…

Court:United States Court of Appeals, Ninth Circuit

Date published: Feb 19, 1971

Citations

439 F.2d 94 (9th Cir. 1971)

Citing Cases

State v. Whited

The case of Coleman v. Alabama, supra, does not have retroactive application. See, United States ex rel.…

Shaffer v. Field

This evidence does not support petitioner's contention that an instruction as to the lesser included offense…