Rosalio B. Montez v. Frank A. Eyman, Warden

This is the second appeal in this ha-beas corpus ease. Montez v. Eyman, 9 Cir., 1967, 372 F.2d 100 . We there held that the district judge’s finding that Montez knowingly waived his right of appeal on advice of counsel was clearly erroneous. We vacated the order denying the writ and remanded with directions to hold the proceeding in abeyance to afford Montez an opportunity to apply to the Arizona Supreme Court for a delayed appeal. Montez did so apply, and his application was denied. State v. Montez, 1967, 102 Ariz. 444 , 432 P.2d 456 . He then renewed his application for habeas corpus. The district judge again denied it, and Montez again appeals. We affirm.

The Supreme Court of Arizona had before it the transcript of the testimony of Montez and of his trial counsel, given at the first hearing before the district judge. It also had before it certain letters including two that are quoted in its opinion, and the transcript of Mon-tez’ trial, none of which was before the district judge at his first hearing. The Arizona Supreme Court held, on the basis of the testimony before the district judge and of the letters, that Montez knew he had the right to appeal and accepted the advice of…