366 F2d 508 McCreary v. E Wilson

366 F.2d 508

Fred D. McCREARY, Appellant,
Lawrence E. WILSON, Warden California State Prison, San
Quentin, California, Appellee.

No. 20979.

United States Court of Appeals Ninth Circuit.

Sept. 23, 1966.

Fred D. McCreary, in pro. per.

Thomas C. Lynch, Atty. Gen., Robt. R. Granucci, Jackson L. Smith, Deputy Attys. Gen., San Francisco, Cal., for appellee.

Before CECIL,1 KOELSCH and ELY, Circuit Judges.


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On September 27, 1962, appellant was convicted by the Superior Court of the State of California of the crime of murder of the second degree and given an indeterminate sentence of five years to life imprisonment.


On April 13, 1966, after unsuccessfully seeking relief in the State Supreme Court, he requested of the United States District Court leave to file in that court a petition for a writ of habeas corpus in forma pauperis. Leave was denied and he has appealed.


Appellant would rely on the 5th and 6th (and 14th) Amendments. But the most he asserts in the petition and in other papers submitted to the district court is that his guilty plea was motivated by incriminating statements made to the police during in-custody interrogation, at which he was refused legal counsel and not advised of his right against selfincrimination. Granted his assertions, if gauged by the standards declared in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), would tender issues requiring a hearing; but here they are to be tested against the requirements existing in 1962. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) makes it unmistakably clear that at that time the failure to meet these constitutional requirements was not alone sufficient ground for relief.


The judgment is affirmed.


LESTER L. CECIL, of the Sixth Circuit, sitting by designation