Dale Leroy Daniels, Appellant, v. Louis S. Nelson, Warden, Etc., Appellee, 415 F.2d 323 (9th Cir. 1969)

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US Court of Appeals for the Ninth Circuit - 415 F.2d 323 (9th Cir. 1969)

August 14, 1969
Rehearing Denied September 18, 1969
Certiorari Denied December 15, 1969

See 90 S. Ct. 494.

Dale Leroy Daniels, in pro. per.

Thomas C. Lynch, Atty. Gen., San Francisco, Cal., for appellee.

Before HAMLEY, ELY and CARTER, Circuit Judges.


The appellant, a state prisoner, petitioned for a writ of habeas corpus. The district court denied the writ. We affirm.

At the time the petition was filed, and at the time it was denied in the district court, appellant's appeal from his conviction in the state court was still pending in the Court of Appeal for the State of California. His complaint in the district court below concerned failure of the court of appeal to augment the record on appeal. With the appeal still pending, petitioner may apply for augmentation with appropriate specificity; if the court of appeal denies his request, he may urge this denial as error on the appeal and he may petition the State Supreme Court for a hearing if his argument is rejected. After his conviction is affirmed petitioner still has his remedy by petition for habeas corpus in the state courts.

It is apparent that his habeas petition, filed while his state appeal was pending, is premature and was properly denied by the district court below, 28 U.S.C. § 2254(b) and (c); Martinez v. Craven, (9 Cir. 1968), 397 F.2d 256; Davidson v. Klinger et al., 411 F.2d 746 (9 Cir. May 27, 1969).

Without prejudice to the appellant's right to raise a constitutional question in the federal court at the proper time, the order denying the application for a writ of habeas corpus is