Hugh Vizzard, Petitioner and Appellant, v. Raymond K. Procunier, Respondent and Appellee, 439 F.2d 94 (9th Cir. 1971)

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US Court of Appeals for the Ninth Circuit - 439 F.2d 94 (9th Cir. 1971) February 19, 1971

W. Austin Cooper (argued), Sacramento, Cal., for petitioner-appellant.

Daniel Kremer (argued), Edsel W. Haws, Deputy Attys. Gen., Evelle J. Younger, Atty. Gen., Sacramento, Cal., for respondent-appellee.

Before MERRILL and CARTER, Circuit Judges, and THOMPSON,*  District Judge.


The substance of this habeas petitioner's charges lies in the failure to provide counsel at his preliminary hearing. The right to counsel attaches at that time, Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970), but the Coleman decision does not apply retroactively to petitioner's 1958 conviction. Olsen v. Ellsworth, 438 F.2d 630, February 8, 1971 (9th Cir.). An attorney was appointed for petitioner in the Superior Court and he entered a counseled plea of guilty. He does not impeach the voluntariness of his guilty plea other than to attribute it to earlier admissions of guilt which were allegedly improperly obtained at the time of arrest and at the preliminary hearing. These averments are inadequate to invoke federal habeas corpus jurisdiction. Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S. Ct. 1458, 25 L. Ed. 2d 785 (1970).

Petitioner's claims of unconstitutional conviction have received careful and appropriate consideration in the California courts. In re Van Brunt, 242 Cal. App. 2d 96, 51 Cal. Rptr. 136 (1966); In re Vizzard, 255 Cal. App. 2d 571, 63 Cal. Rptr. 305 (1967).

The order denying the petition for habeas corpus is affirmed.


Hon. Bruce R. Thompson, United States District Judge, Reno, Nevada, sitting by designation