423 F.2d 32
George DEVINE, Appellant,
Lester POPE, Appellee.
United States Court of Appeals, Ninth Circuit.
March 13, 1970.
C. Affton Moore, III, Sacramento, Cal., for appellant.
Thomas Kerrigan, Deputy Atty. Gen., Thomas C. Lynch, Atty. Gen., State of California, Los Angeles, Cal., for appellee.
Before ELY and KILKENNY, Circuit Judges, and BYRNE,1 District judge.
This appeal is from the District Court's denial of Devine's petition for writ of habeas corpus. When he filed his petition, Devine was a California state prisoner, but we are advised that he has now been released on parole. His petition attacked his state court conviction, alleging, inter alia, that he was unconstitutionally denied counsel during the state court preliminary hearing and that he did not knowingly and intelligently waive his right to counsel before and at the time he pleaded guilty to the offense of which he was convicted. The District Court conducted an evidentiary hearing and rejected Devine's contentions on both factual and legal bases. On the record before us, we are not persuaded that the District Court's determinations were clearly erroneous.
During oral argument, Devine's able appellate counsel directed our attention to In re Huddleston, 71 A.C. 1075, 80 Cal.Rptr. 595, 458 P.2d 507 (1969), a very recent decision of the Supreme Court of California, arguing that Devine will be denied equal protection of the law unless the principle of that case is applied in his favor. If Devine is entitled to relief under Huddleston, he should first apply to the California state courts for their determination of the contention which he makes in reliance upon that case. In that connection, we observe that the record before us now does not fully satisfy us that Devine had exhausted all state court remedies possibly available to him on certain of the issues which his petition presented to the District Court.
Honorable William M. Byrne, Sr., Senior United States District Judge, Los Angeles, California, sitting by designation