Richard E. Smiley, and v. Lawrence E. Wilson, Warden, California State Prison, San Quentin, California, And

(dissenting):

I respectfully dissent.

Not only is there no adequate factual allegation that Smiley’s plea of guilty in Case No. 156591 was primarily motivated by a confession obtained by physical or mental coercion; he does not even allege that there was a confession.

In the initial petition filed in the district court, the facts alleged were so blended that the court could not determine which facts applied to each conviction. The petition was dismissed with leave to amend, and forms were sent to the petitioner to aid him in properly alleging the facts as to each conviction separately.

With respect to the conviction in Case No. 156591, Smiley made the following allegations in reply to the specific questions set forth in the form furnished him (grammar and spelling have not been corrected);

10. State concisely the grounds on which you base your allegations that you are being held in custody unlawfully:

*150 11. State concisely and in the same order the facts which support each of the grounds set out in (10):

.The question for determination is whether the petition alleges facts which, if proven, would constitute a violation of Smiley’s federal constitutional rights. It is…

Richard E. Smiley, in California penal custody under three independent judgments and sentences, filed three applications for writs of habeas corpus attacking these judgments and sentences. The three applications were consolidated in one district court proceeding. An *146 order to show cause was issued, the warden filed a return thereto, and Smiley, proceeding pro se, filed a traverse. Thereafter, and without holding an evidentiary hearing, the district court entered an order denying all three applications. This appeal followed.

Smiley’s first application for a writ of habeas corpus relates to his conviction, on May 16, 1951, in Case No. 143645. Smiley was convicted of first degree burglary under California Penal Code, sec. 459, after a plea of not guilty and a non-jury trial. He was sentenced to imprisonment for from five years to life. On October 29, 1951, probation was granted and he was released from custody. On May 11, 1956, after he had been convicted of two felonies in Case No. 156591, to be discussed below, probation in Case No. 143645 was revoked and it was ordered that his sentence therein run concurrently with those imposed in Case No. 156591.

Smiley’s second…

378 F.2d 144 Richard E. SMILEY, Petitioner and Appellant, v. Lawrence E. WILSON, Warden, California State Prison, San Quentin, California, Respondent and Appellee. No. 21134. United States Court of Appeals Ninth Circuit. April 11, 1967. Rehearing Denied May 17, 1967. Richard E. Smiley, in pro. per. Thomas C. Lynch, Atty. Gen., State of California, Robert R. Granucci, John T. Murphy, Deputy Attys. Gen., San Francisco, Cal., for appellee. Before HAMLEY and MERRILL, Circuit Judges, and BYRNE, District Judge. HAMLEY, Circuit Judge. 1 Richard E. Smiley, in California penal custody under three independent judgments and sentences, filed three applications for writs of habeas corpus attacking these judgments and sentences. The three applications were consolidated in one district court proceeding. An order to show cause was issued, the warden filed a return thereto, and Smiley, proceeding pro se, filed a traverse. Thereafter, and without holding an evidentiary hearing, the district court entered an order denying all three applications. This appeal followed. 2 Smiley's first application for a writ of habeas corpus relates to his conviction, on May 16, 1951, in Case No. 143645. Smiley was…