428 F2d 825 Roberts v. H C Cupp

428 F.2d 825

Earl Leslie ROBERTS, Petitioner-Appellant
H. C. CUPP, Respondent-Appellee.

No. 23747.

United States Court of Appeals, Ninth Circuit.

August 12, 1970.

Appeal from the United States District Court for the District of Oregon; Gus J. Solomon, Judge.

Earl Leslie Roberts, in pro. per.

Robert Y. Thornton, Atty. Gen., David H. Blunt, Asst. Atty. Gen., Salem, Or., for appellee.

Before MERRILL and TRASK, Circuit Judges, and FERGUSON,* District Judge.


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This is an appeal from an order dismissing a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 et seq., by a prisoner in state custody.


A state court jury convicted petitioner of armed assault and robbery, and his conviction was affirmed by the Oregon Supreme Court in two opinions. State v. Roberts, 245 Or. 97, 420 P.2d 391, and State v. Roberts, 249 Or. 139, 437 P.2d 731.


The district court, in accordance with the procedure set forth in Selz v. California, 423 F.2d 702 (9th Cir. 1970), had before it the reporter's transcript of the state trial. It concluded that the State of Oregon's custody of petitioner did not contravene a right guaranteed him by the Constitution or laws of the United States.


Petitioner has not established before the district court or on this appeal, nor does it appear, that any of the circumstances exist as set forth in paragraphs numbered (1) to (8) of 28 U.S.C. § 2254 (d). See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).


The district court's opinion was written prior to Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). However, the court was correct in its determination that the prohibition against double jeopardy does not apply to the facts of this case.


The district court's findings are correct and the order of dismissal is affirmed.



Honorable Warren J. Ferguson, United States District Judge, Central District of California, sitting by designation