Mihailoviki v. State of California
| Decision Date | 27 July 1966 |
| Docket Number | No. 20729.,20729. |
| Citation | 364 F.2d 808 |
| Parties | N. E. MIHAILOVIKI, Appellant, v. STATE OF CALIFORNIA, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
N. E. Mihailoviki, in pro. per.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., Los Angeles, Cal., for appellee.
Before JOHNSEN,* BARNES and HAMLEY, Circuit Judges.
Appellant, a state prisoner charged with rape, was convicted of attempted rape, a necessarily included lesser offense. He was sentenced on July 16, 1963. He appeals from the denial of his petition for a writ of habeas corpus.
His notice of appeal was filed untimely, but we can and do deem his request for a certificate of probable cause and for leave to file his appeal in forma pauperis as timely notice of appeal.
Appellant asserts he is entitled (a) to a hearing in the district court and (b) to be discharged from custody. He is not.
Appellant urges several violations of his constitutional rights in general terms, which may be summarized as follows:
1. Appellant's room was unlawfully searched. Answer: the state court opinion on appeal shows two articles (an immigration card and a grey coat) were taken in the search, but neither were produced at the trial, nor in any way used against him.
2. Appellant was denied counsel prior to indictment, Escobedo v. State of Illinois being relied upon. Answer: Appellant was convicted July 16, 1963; eleven months prior to Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) — "* * * Escobedo affects only those cases in which the trial began after June 22, 1964." Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (decided June 20, 1966).
3. The testimony which convicted appellant "was false on its face." Answer: Such a ground is unintelligible, and wholly conclusionary. Buchanan v. McGee, 290 F.2d 711, 713 (9th Cir. 1961).
4. Appellant urges he was not convicted of the crime charged against him. Answer: Under California law, the crime of attempted rape is a lesser and necessarily included charge in the crime of rape. People v. Smith, 195 Cal. App.2d 735, 738, 16 Cal.Rptr. 12.
5. Appellant urges that he had a lawyer who "lied to petitioner, plead guilty for petitioner, and did not present any defense at all." Answer: The first allegation is purely conclusionary and no facts are suggested; the next two allegations are false, on the record, and based on other allegations of appellant.
6. Lack of...
To continue reading
Request your trial
-
West v. State of Louisiana
...Adult Authority, 9 Cir. 1970, 423 F.2d 1326, cert. denied, 1970, 398 U.S. 914, 90 S.Ct. 1717, 26 L.Ed.2d 78; Mihailoviki v. California, 9 Cir. 1966, 364 F.2d 808; King v. California, 9 Cir. 1966, 356 F.2d 950; Gaito v. Strauss, 3 Cir. 1966, 368 F.2d 787, cert. denied, 1967, 386 U.S. 977, 87......
-
United States ex rel. Orsini v. Reincke
...Madison v. Tahash, 249 F.Supp. 600, 608 (D.Minn.), aff'd, 359 F.2d 60 (8th Cir. 1966) (illegally seized evidence); Mihailoviki v. California, 364 F.2d 808 (9th Cir. 1966) (illegally seized evidence). Cf. Kristiansand v. United States, 319 F.2d 416 (5th Cir. 1963) (uncoerced statement); Hami......
-
Fitzsimmons v. Yeager
...will be treated as a notice of appeal if no formal notice of appeal has been filed". The majority's reliance on Mihailoviki v. State of California, 364 F.2d 808 (9 Cir. 1966) as supporting authority for its stated holding is in error. In that case, the court deemed the appellant's "request ......
-
United States v. Quinn, Crim. No. 28206.
...the offense charged, whether an attempt is charged in the indictment or not. Rule 31(c), Fed.R. Crim.P.; see, e.g., Mihailoviki v. California, 364 F.2d 808 (9th Cir. 1966). From the decided cases it is clear that the instant indictment is sufficient and alleges an indictable offense. Defend......