568 F2d 648 Gardner v. Pogue

568 F.2d 648

Gary D. GARDNER, Petitioner-Appellant,
Edwin POGUE, Warden Nevada State Penitentiary, Respondent-Appellee.

No. 76-1578.

United States Court of Appeals,
Ninth Circuit.

Jan. 25, 1978.

Robert N. Peccole, Las Vegas, Nev., for petitioner-appellant.

Frank J. Cremen, Las Vegas, Nev., for respondent-appellee.

Appeal from the United States District Court for the District of Nevada.

Before TRASK and ANDERSON, Circuit Judges, and TAKASUGI,* District Judge.

TRASK, Circuit Judge:

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On August 1, 1977, this court considered whether a petition for habeas corpus was properly before us in the light of Fed.R.App.P. 22(b). We concluded that without a certificate of probable cause from the district court, or a statement of its reasons for declining to issue one, we lacked jurisdiction to hear the appeal. Gardner v. Pogue, 558 F.2d 548 (9th Cir. 1977). We also held that leave to proceed in forma pauperis is not "tantamount" to the issuance of a certificate of probable cause. We therefore remanded for further proceedings consistent with our opinion.


The appellant has now applied for and been issued a certificate of probable cause by the district court and is before us urging that his guilty plea was obtained in violation of his constitutional rights. We proceed to consider the merits.


Appellant had been arrested and held for trial on a charge of murder in 1967 in the state court of Nevada. He contends that he entered a plea of guilty to second degree murder upon promises by the prosecution and by his own attorney that if he did so he would receive a sentence of imprisonment of ten years. When his plea of guilty was accepted, he was sentenced to imprisonment for a term of 99 years. He filed a petition for post-conviction relief in the state court of Nevada. His petition enabled him to obtain a post-conviction evidentiary hearing to determine the voluntariness of his plea of guilty. Petitioner testified at that hearing and produced witnesses on his behalf. The state district court ruled that the hearing supported the finding of voluntariness of the plea and relief was denied. An appeal was taken to the Supreme Court of Nevada and the ruling of the District Court of Nevada was affirmed.


It was then that he filed his petition for a writ of habeas corpus in the United States District Court for the District of Nevada. That court having read and considered the pleadings, transcripts and papers of record, and having heard and considered arguments of counsel, made numerous and careful findings of fact and based thereon, concluded:


"That the record of the state court post-conviction proceeding, considered as a whole supports the State court determination that the Petitioner's plea of guilty was knowing, voluntary and uncoerced." Gardner v. Pogue, No. 75-146 (D.Nev., filed Jan. 19, 1976).


We have carefully considered the record of the evidentiary hearing and have arrived at the same conclusion.


The judgment is AFFIRMED.

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Honorable Robert M. Takasugi, United States District Judge, Central District of California, sitting by designation