N. E. Mihailoviki v. State of California

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…