424 F2d 279 Carter v. A Eyman

424 F.2d 279

Charles C. CARTER, Appellant,
Frank A. EYMAN, Warden, Arizona State Prison, et al., Appellees.

No. 23020.

United States Court of Appeals, Ninth Circuit.

April 6, 1970.

Robert W. McNamee (argued), San Jose, Cal., Charles J. Carter, in pro. per., Florence, Ariz., for appellant.

Carl Waag (argued), Asst. Atty. Gen., Norval C. Jesperson, Asst. Atty. Gen., Gary K. Nelson, Atty. Gen., State of Arizona, Phoenix, Ariz., for appellees.

Before BARNES, HAMLEY and MERRILL, Circuit Judges.


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We agree with the reasons stated by the district court in denying the petition herein of Charles C. Carter for a writ of habeas corpus, as set forth in Carter v. Eyman, 281 F.Supp. 776 (D.Ariz.1968). However, the dictum in that opinion, at page 778, to the effect that if Carter (originally tried prior to the decisions in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) were now to be retried, the principles announced in Escobedo and Miranda would apply, is incorrect in view of the recent decision of the Supreme Court in Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253.