456 F2d 262 Tooker v. State of Montana W J

456 F.2d 262

Albert J. TOOKER, Appellant,
v.
STATE OF MONTANA and W. J. Estelle, Warden, Appellee.

No. 26231.

United States Court of Appeals,
Ninth Circuit.

Oct. 14, 1971.

Albert J. Tooker, in pro. per.

Robert L. Woodahl, Montana Atty. Gen., J. C. Weingartner, Patrick J. Brophy, Asst. Attys. Gen., Helena, Mont., for appellee.

Before CHAMBERS and WRIGHT, Circuit Judges, and McNICHOLS,* District Judge.

PER CURIAM:

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1

The order dismissing Tooker's petition for habeas corpus is affirmed.

2

Tooker has had an evidentiary hearing in the state district court on most of the issues which the federal district court has determined not to disturb. Tooker v. Estelle, decided June 5, 1970, 332 F.Supp. 245.

3

The deposition point is precluded by Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). On the transcript point, the request for a transcript came long after the right to take a state appeal had expired. In such circumstances, the right to a transcript is not always automatic. See Hines v. Baker, 422 F.2d 1002 (10th Cir. 1970). Other issues we also find without merit.

*

The Honorable Ray McNichols, United States District Judge for the District of Idaho, sitting by designation