Rosalio B. Montez, Appellant, v. Frank A. Eyman, Warden, Appellee, 404 F.2d 330 (9th Cir. 1968)

This is the second appeal in this habeas corpus case. Montez v. Eyman, 9 Cir., 1967, 372 F.2d 100. We there held that the district judge's finding that Montez knowingly waived his right of appeal on advice of counsel was clearly erroneous. We vacated the order denying the writ and remanded with directions to hold the proceeding in abeyance to afford Montez an opportunity to apply to the Arizona Supreme Court for a delayed appeal. Montez did so apply, and his application was denied. State v. Montez, 1967, 102 Ariz. 444, 432 P.2d 456. He then renewed his application for habeas corpus. The district judge again denied it, and Montez again appeals. We affirm.

The Supreme Court of Arizona had before it the transcript of the testimony of Montez and of his trial counsel, given at the first hearing before the district judge. It also had before it certain letters including two that are quoted in its opinion, and the transcript of Montez' trial, none of which was before the district judge at his first hearing. The Arizona Supreme Court held, on the basis of the testimony before the district judge and of the letters, that Montez knew he had the right to appeal and accepted the advice of his attorney not to appeal.

The district judge, at the time of Montez' second application for the writ, had before it the transcript of the first habeas corpus hearing, the transcript of Montez' trial, copies of the papers filed with the Arizona Supreme Court, except the letters, which were exhibits to one of those papers, and the opinion of the Supreme Court. No one objected that the letters quoted by the court were before the judge only as quoted in the opinion. No further oral testimony was offered.

In his opinion rendered at the second habeas corpus petition, the district judge considered the contention of Montez that a comment by a fingerprint expert at the trial that Montez had a prior criminal record was so prejudicial as to have denied Montez due process. He also considered Montez' claim that, at the trial, he did not have the effective assistance of counsel. The district judge found both contentions to be without merit. He agreed with the finding of the Supreme Court that Montez had waived his right to appeal.

The evidence supports the finding. The trial record shows good reason for counsel's advice that to appeal would be useless, and the letters add substance to the conclusion that Montez accepted the advice and decided not to appeal. In deciding Montez' first appeal, we said: "* * * we recognize that there is some evidence and inferences to be drawn therefrom in support of the findings of the District Court * * *." 372 F.2d at 102. Now there is more such evidence. We hold that the district judge's finding is not clearly erroneous.

Affirmed.