Wesley Eugene Haney, Appellant, v. Louis S. Nelson, Warden, California State Prison at San Quentin, Appellee, 414 F.2d 801 (9th Cir. 1969)

Haney was convicted of second degree murder. He appealed through the state courts, and now his federal habeas corpus petition, denied in the district court without a hearing, is before us.

Haney's bald allegation that he was unlawfully arrested does not generate a federal question. Fernandez v. Klinger, 9 Cir., 346 F.2d 210, cert. den., 382 U.S. 895, 86 S. Ct. 191, 15 L. Ed. 2d 152 (1965).

At his trial, the foreman of the jury reported that one juror could not agree to a verdict of guilty of murder in the first degree. Defense counsel stipulated that the jury should return a verdict of guilty or not guilty of murder, leaving the judge to fix the degree. We cannot question this procedure since the right to a jury trial was not applied to the states until 1968. De Stefano v. Woods, 392 U.S. 631, 88 S. Ct. 2093, 20 L. Ed. 2d 1308 (1968).

Haney made certain statements to police. He had been warned of his rights as required by Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). He says he was not told he had an immediate right to appointed counsel, but this was not required until Miranda v. Arizona, 384 U.S. 436, 478, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966). Haney was sentenced November 24, 1965.

He contends these statements were involuntarily made, but gives us not one fact to support such a conclusion.

The judgment of the district court is, then:

Affirmed.