401 F2d 536 Coleman v. E Wilson

401 F.2d 536

Willie C. COLEMAN, Appellant,
v.
Lawrence E. WILSON, Warden, etc., Appellees.

No. 22069.

United States Court of Appeals Ninth Circuit.

October 8, 1968.

Rehearing Denied November 5, 1968.

Certiorari Denied January 27, 1969.

See 89 S.Ct. 719.

Willie C. Coleman, in pro. per.

Gloria F. DeHart, Deputy Atty. Gen., Thomas C. Lynch, Atty. Gen., Derald E. Granberg, Deputy Atty. Gen., San Francisco, Cal., for appellees.

Before POPE, BROWNING and CARTER, Circuit Judges.

PER CURIAM:

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1

The district court dismissed without a hearing a petition for habeas corpus alleging that appellant's guilty plea was not voluntarily and knowingly made, but was the product of (1) promises of probation, (2) fear of the death penalty, (3) threatened withdrawal of counsel on the eve of trial, and (4) appellant's ignorance of the consequences of his plea.

2

Since the first ground has not been presented to the state courts, we do not consider it. As to the second ground, we agree with the district court that the record conclusively establishes it to be without merit.

3

We conclude, however, that the district court erred in rejecting the third and fourth grounds on the pleadings. The conflict between allegations made by appellant in his petition and the statements made by appellant's counsel in the affidavit filed by the State could not be resolved against appellant without an evidentiary hearing. Machibroda v. United States, 368 U.S. 487, 494, 496, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Wright v. Dickson, 336 F.2d 878, 882-883 (9th Cir. 1964).

4

Reversed and remanded for further proceedings.