Watkins, v. Duffy, Warden of San Quentin Prison for Men et al, 197 F.2d 816 (9th Cir. 1952)

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US Court of Appeals for the Ninth Circuit - 197 F.2d 816 (9th Cir. 1952) June 24, 1952. As Amended July 19, 1952

Stephen D. Maffini, San Francisco, Cal., for appellant.

Edmund G. Brown, Atty. Gen. of State of California, Clarence A. Linn, Asst. Atty. Gen. of State of California, Charles E. McClung, Deputy Atty. Gen. of California, for appellees.

Before DENMAN, Chief Judge, and STEPHENS and POPE, Circuit Judges.


Appellant seeks reversal of the order denying his application for a writ of habeas corpus. We agree with the district court that the application does not state any ground on which the writ may issue.

Appellant here seeks to have us consider a new contention which he did not make in his petition for a writ of habeas corpus to the district court, namely, that he was denied due process through his attorney's failure to appeal from the judgment of conviction though the attorney was instructed so to do. Since this allegation, if true, was known to the appellant at the time he filed his petition in the district court and since the district court never had the opportunity to consider the allegation, we cannot consider it on the appeal. Crockett v. Johnston, 9 Cir., 109 F.2d 444.