George Thomas Bevins v. John H. Klinger, Warden

365 F.2d 752 George Thomas BEVINS, Appellant, v. John H. KLINGER, Warden, Appellee. No. 20407. United States Court of Appeals Ninth Circuit. July 22, 1966. On Rehearing August 26, 1966. George Thomas Bevins, Los Padres, Cal., in pro. per. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Thomas Kerrigan, Deputy Atty. Gen., Los Angeles, Cal., for appellee. Before MADDEN, Judge, United States Court of Claims, and BARNES and ELY, Circuit Judges. BARNES, Circuit Judge: 1 This is an appeal from a denial of a writ of habeas corpus by the United States District Court for the Southern District of California, Central Division, after conviction and appeal in the state courts. 2 Jurisdiction existed below pursuant to 28 U.S.C. § 2241 , and exists here pursuant to 28 U.S.C. § 2253 . 3 Since this case has been placed on our calendar, appellant has requested leave, in writing, "to drop every other contention regarding my case and abandon my appeal excepting for the adjudication of the Habitual Criminal Act." 1 4 People v. Taylor, 155 Cal.App.2d 26 , 317 P.2d 167 (1957), is the California State court decision on which appellant now desires to rest his appeal. 2 In…

This is an appeal from a denial of a writ of habeas corpus by the United States District Court for the Southern District of California, Central Division, after conviction and appeal in the state courts.

Jurisdiction existed below pursuant to 28 U.S.C. § 2241 , and exists here pursuant to 28 U.S.C. § 2253 .

Since this case has been placed on our calendar, appellant has requested leave, in writing, “to drop every other contention regarding my case and abandon my appeal excepting for the adjudication of the Habitual Criminal Act.”

*754 People v. Taylor, 155 Cal.App.2d 26 , 317 P.2d 167 (1957), is the California State court decision on which appellant now desires to rest his appeal. 2 In support of assignment of error IV the appellant here points out that in Taylor, supra, where the defendant had admitted three prior felony convictions, two of which were foreign convictions, the court said ( 155 Cal.App.2d at 28 , 317 P.2d at 170 ):

Appellant then points to what he alleges is contrary language in People v. Gillette and Bevins, 171 Cal.App.2d 497, 506 , 341 P.2d 398, 403 (1959), (wherein this defendant’s conviction of robbery with a deadly weapon, a felony, was affirmed) :

These…

On Appellant’s Petition For Rehearing

Appellant’s petition for rehearing asserts that this court failed to consider twelve of his thirteen assignments of error contained in his appeal from a denial of his petition for a writ of habeas corpus by the district court. This because of a misinterpretation of a letter written by appellant to this court, interpreted by us as a waiver of all points save the applicability to appellant of the California Habitual Criminal Act.

The petition for a rehearing is granted. Our previous opinion is modified by the addition of the following:

Assignments I, II and IV were discussed in detail in our previous opinion and disposed of adversely to appellant.

Assignment III relates to comment on defendant’s failure to take the stand. Appellant relies on Griffin v. State of California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1964). In Tehan v. United States ex rel. Shott, 382 U.S. 406 , at 419, 86 S.Ct. 459 , 15 L.Ed.2d 453 (1966) the Supreme Court held the Griffin rule did not require, and did not have, retrospective application.

Assignment V claims a delay of sentence for fifty days after conviction, while the judge is awaiting a probation…