Alonzo Charles Spencer, Petitioner-appellant, v. Frank A. Eyman, Warden, Respondent-appellee, 439 F.2d 1136 (9th Cir. 1971)

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US Court of Appeals for the Ninth Circuit - 439 F.2d 1136 (9th Cir. 1971) March 19, 1971
Rehearing Denied April 7, 1971

Alonzo Charles Spencer, in pro. per.

Gary K. Nelson, Atty. Gen., Carl Waag, Asst. Atty. Gen., Phoenix, Ariz., for respondent-appellee.

Before BROWNING and TRASK, Circuit Judges, and PREGERSON,*  District Judge.


This is an appeal from an order of the district court denying a petition for a writ of habeas corpus.

Appellant, a state prisoner, alleged that the trial judge did not warn him of the consequences of admitting his prior convictions, that he was unfamiliar with the state law concerning prior convictions, and that his advisory counsel has been involved in criminal activities and was therefore under pressure from the state prosecuting authorities. These allegations are insufficient as a matter of law because (1) Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), is not retroactive, (2) the record shows that appellant knew his prior convictions could be used to increase his sentence, and (3) appellant represented himself.

Appellant also alleged that the trial judge promised him that if he admitted his prior convictions, the judge would not sentence him as a prior offender. What the record shows, however, is that after the judge inquired whether appellant wished to admit the allegations of prior convictions, appellant moved to strike those allegations; that the judge thereupon informed appellant that after admitting the prior convictions he could still file a motion to strike the allegations on legal grounds; that appellant then admitted them; and that later, at the sentencing hearing and before imposition of sentence, appellant, in accordance with the judge's ruling, again moved to strike the allegations of prior convictions. The record, therefore, conclusively shows that appellant's claim was untrue.



Honorable Harry Pregerson, United States District Judge for the Central District of California, sitting by designation