Before us is an appeal from an order of the District Court denying appellant’s petition for v.rit of habeas corpus.

Following trial by jury, appellant was convicted in the Superior Court of the State of California, in and for the County of San Bernardino, of the offense of second degree murder, in violation of Section 187 of the Penal Code of the State of California.

On September 26, 1962, he was sentenced to imprisonment in the state prison for the term prescribed by law.

On March 25, 1965, appellant filed his petition for writ of habeas corpus in the District Court. As grounds for his allegedly unlawful detention, the petition states:

In support of said grounds it is alleged that shortly after the commission of the-offense for which appellant was tried, he was arrested. That at that time he had consumed a large quantity of whiskey and was drunk; that he was immediately questioned by police officers concerning the shooting, put in a police car and again questioned, and taken to the scene of the shooting where he was further *544 questioned; that he was later questioned by a deputy district attorney in the presence of a court reporter while he was still drunk; that he was at no time., advised of his right to counsel nor his right to remain silent; that at the time of his trial incriminating statements made by appellant to the police officers and the deputy district attorney were offered and received in evidence over objection by appellant’s said counsel; that any statements made by him were involuntary in nature, and were made while under the influence of intoxicating liquonand were not intelligently and undersfandingly made by him. ' . '

\ In the petition it is stated that appellant did not appeal his conviction because “I was tried for 1st degree murder and my attorney (a public defender) felt I was fortunate to get a 2nd degree verdict.”

The petition further alleges that petitions for habeas corpus filed by him in the Superior Court in and for the County of Marin, State of California, were denied on November 4, 1964, and on February 4, 1965, and that a like petition for habeas corpus was denied by the Supreme Court of California on March 10, 1965.

The District Court denied the petition for the Writ, stating:

Thereafter, appellant filed a motion for rehearing and the issuance of a certificate of probable cause. In this petition appellant amplified the reasons why no appeal was taken by appellant from the judgment of conviction. It is alleged that after the trial appellant was inadequately advised by the public defender as to the filing of an appeal from such conviction. There is attached to the petition copy of a letter from the public defender to appellant in which the public defender advised appellant not to take an appeal in the State court from the conviction because of the fact that should he be successful in securing a new trial, appellant would run the risk of being convicted on such trial of murder in the first degree.

Appellee concedes that under existing law an accused cannot be convicted, upon a new trial, of a crime or degree of a crime greater than that of his first conviction for reasons of double jeopardy, and cites People v. Henderson, 60 Cal.2d 482 , 35 Cal.Rptr. 77 , 386 P.2d 677 (1963), and states in his brief “at least from the face of the letter counsel sent to petitioner, it appears that he may have given him erroneous advice.”

Appellee further states in his brief:

The District Court denied the petition for rehearing and granted a certificate of probable cause. In the order the District Court stated: “This finding of probable cause is exclusively limited to the ruling of this court that Escobedo does not operate retroactively.”

The District Court correctly denied relief based upon appellant’s claim that at the time of his arrest and interrogation he was not advised of his right to counsel, or his right to remain silent. Appellant’s conviction was final in 1962. The Supreme Court recently decided that the rulings in Escobedo concerning the right to counsel and the right to remain silent are to be applied prospectively, and operate retroactively only as to those cases in which the trial began after June 22,1964, the date of that decision. Johnson and Cassidy v. State of New Jersey (decided June 20, 1966), 384 U.S. 719 , 86 S.Ct. 1772 , 16 L.Ed.2d 882 .

It is to be noted that the District Court’s grant of a certificate of probable cause was restricted to its ruling that Escobedo does not operate retroactively.

In view of the amplification contained in the petition for rehearing, as to appellant’s failure to appeal his conviction because of allegedly erroneous advice given to him by the public defender, it appears that there may be a State remedy available to appellant which he should pursue before seeking relief in the Federal Courts. Cf. Rose v. Dickson, 327 F.2d 27 (9th Cir. 1964).

The order appealed from is affirmed.