431 F2d 905 Olden v. J Pope

431 F.2d 905

Osborn OLDEN, Appellant,
Lester J. POPE, Appellee.

No. 23900.

United States Court of Appeals, Ninth Circuit.

Sept. 28, 1970.

Gerald Z. Marer (argued), Keogh & Marer, Palo Alto, Cal., for appellant.

Timothy Reardon (argued), John T. Murphy, Duputy Attys. Gen., Thomas C. Lynch, Atty. Gen., San Francisco, Cal., for appellee.

Before MERRILL and DUNIWAY, Circuit Judges, and POWELL, District judge.1


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This appeal by a state prisoner is from the denial of his application for a writ of habeas corpus without an evidentiary hearing. Petitioner urges that he was permitted at his preliminary hearing in 1959 to incriminate himself without a knowing and intelligent waiver of his right to counsel.


The District Judge had before him the transcript of the proceedings before the Magistrate. That transcript has been examined by us and we find a careful and detailed examination of the petitioner by the Magistrate on the waiver of counsel.


This Court's decisions in Anthony v. Fitzharris, 389 F.2d 657 (9 Cir. 1968) and Wilson v. Harris, 351 F.2d 840 (9 Cir. 1965), hold in essence that to determine whether there was a knowing and voluntary waiver of counsel there should be an evidentiary hearing. Each of these two cases is distinguishable on its facts. In each instance the petitioner was not sufficiently admonished of his rights or of the seriousness of the charge.


This case is factually like United States ex rel. Miner v. Erickson, 428 F.2d 623 (8 Cir. June 5, 1970, opinion by then Circuit Judge Blackmun). In that case, although the defendant disclaimed the ability to read and write, he had gone to the 4th or perhaps the 5th grade. He stated that he knew the seriousness of the charge against him. In the Appendix the transcript of a portion of the proceedings is set out verbatim.


The hearing before the Magistrate at the time of the entry of petitioner's plea is adequately set out in the transcript. An evidentiary hearing would add nothing. 28 U.S.C.A. 2254(d) does not in our opinion require an evidentiary hearing here.


Judgment is affirmed.


The Honorable Charles L. Powell, United States District Judge for the Eastern District of Washington, sitting by designation