Earnest E. Storkes v. People of the State of California and Lawrence E. Wilson, Warden, California State Prison, San Quentin, California

364 F.2d 824

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 21, 1966
• Docket: 20860
• Status: Published

Opinion

PER CURIAM:

Appellant was convicted in 1961 by his plea of guilty to a charged violation of section 245 of the California Penal Code. He did not appeal his conviction.

A petition for a writ of habeas corpus was denied by the California Supreme Court on February 11, 1965.

Appellant next filed a petition for a writ of habeas corpus in the United States District Court. On July 30, 1965, his petition was dismissed on the ground that Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) was not retroactive. The district court relied on Carrizosa v. Wilson, 244 F.Supp. 120 (N.D. Calif. 1965).

Since then the Supreme Court, in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (decided June 20, 1966), affirmed this view of the law. Mr. Chief Justice Warren stated:

“We hold that Escobedo affects only those cases in which the trial began after June 22, 1964, the date of that decision.”

Appellant’s case was tried prior to June 22, 1964.

Appellant additionally urges “misrepresentation of counsel,” yet no facts are alleged to prove or support this conclusionary statement.

The dismissal is affirmed.