OpenJurist

349 F2d 940 Thomason v. H Klinger

349 F.2d 940

Rufus Alonzo THOMASON, Petitioner,
v.
John H. KLINGER, Respondent.

No. 20020.

United States Court of Appeals Ninth Circuit.

Aug. 6, 1965.

Rufus Alonzo Thomason, in pro. per.

Thomas C. Lynch, Atty. Gen. of California, Wm. E. James, Asst. Atty. Gen. of California, Wm. L. Zessar, Deputy Atty. Gen. of California, Los Angeles, Cal., for respondent.

Before HAMLEY, JERTBERG and DUNIWAY, Circuit Judges.

PER CURIAM:

1

Rufus Alonzo Thomason, serving a California state court sentence following his conviction on a plea of guilty to a violation of Cal.Penal Code, 288, appeals from a district court order denying his application for a writ of habeas corpus. Thomason has also moved in this court for appointment of counsel to represent him on the appeal.

2

In his district court application Thomason urged three grounds for relief, namely: (1) the corpus delecti was not established by evidence upon which the information is based; (2) the evidence purporting to establish the crime is hearsay and therefore inadmissible; and (3) the state court erroneously denied his motion to withdraw his plea of guilty after he discovered a witness who would establish Thomason's innocence.

3

None of these grounds are renewed in support of Thomason's appeal. None of the grounds for reversal which he now urges, were presented in his application for a writ of habeas corpus. Except where necessary to prevent a manifest miscarriage of justice, no such showing being made here, an appellant may not urge, as a ground for reversal, a theory which he did not present in the trial court. See Daugharty v. Gladden, 9 Cir., 257 F.2d 750, 758.

4

The motion for appointment of counsel is denied. The order under review is affirmed.