James Edward Flemings, Appellant, v. Lawrence E. Wilson, Warden, California State Prison, San Quentin, California, et al., Appellees, 365 F.2d 267 (9th Cir. 1966)

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U.S. Court of Appeals for the Ninth Circuit - 365 F.2d 267 (9th Cir. 1966) June 30, 1966

James E. Flemings, in pro. per.

Thomas C. Lynch, Att. Gen., Robert R. Granucci, and Charles W. Rumph, Deputy Attys. Gen., San Francisco, Cal., for appellees.

Before MERRILL, BROWNING and DUNIWAY, Circuit Judges.


We agree with the District Court that of the grounds upon which appellant relies in seeking discharge in habeas corpus the only one presenting a Constitutional issue is his contention that an incriminating statement was used against him contrary to Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) and that the rule of that case should be retroactively applied to his trial. Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966) disposes of this contention.

We do not consider those grounds for relief which appellant asserted for the first time in his notice of appeal and in his briefs filed in this court. We may properly consider "factual assertions" appearing in such papers which "clarify and particularize" allegations in a petition for habeas corpus (Wright v. Dickson, 336 F.2d 878, 881, n. 2 (9th Cir. 1964), but it would not be appropriate for us to pass upon independent grounds for relief which were not submitted to the District Court, and which, indeed, may not have been submitted to the state courts.

Judgment affirmed.