435 F2d 554 Simmons v. E Craven

435 F.2d 554

Barry Don SIMMONS, Petitioner and Appellant,
v.
Walter E. CRAVEN, Warden, Folsom State Prison, Respondent and Appellee.

No. 25746.

United States Court of Appeals, Ninth Circuit.

January 4, 1971.

Rehearing Denied February 2, 1971.

Appeal from the United States District Court for the Northern District of California; George B. Harris, Judge.

Barry Don Simmons, in pro. per.

Thomas C. Lynch, Cal. Atty. Gen., Derald E. Granberg, Eric Collins, Deputy Attys. Gen., San Francisco, Cal., for appellee.

Before CHAMBERS, HAMLEY and MERRILL, Circuit Judges.

PER CURIAM:

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1

The decision of the district court denying habeas corpus relief is affirmed.

2

Here a pre-Boykin (Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274) guilty plea is attacked.

3

There is no allegation that he did not understand the consequences of his plea. And, he had competent trial counsel.

4

The contention that his plea was coerced because there was a threat to use his wife as a witness is made. Assuming this would violate a privilege either he or his wife could claim, the answer is he had competent counsel, a state rule of evidence is involved, and we have held in Moss v. Craven, 9 Cir., 427 F.2d 139, that Boykin is not retroactive.