This is an appeal in forma pauperis by a state prisoner from the denial of his petition for a writ of habeas corpus by the district court. ( 28 U.S.C. § 2241 .) A certificate of probable cause was issued.

The basis of the writ sought was (1) that appellant had been coerced into giving an incriminatory statement to the police while in custody; (2) that references to re-enactment of the crime (and appellant’s reaction thereto) violated defendant’s privilege against self-incrimination; (3) that the exclusionary rule enunciated in Escobedo v. Illinois, 378 U.S. 478 , 84 S.Ct. 1758 , 12 L.Ed.2d 977 (1964), has application here, despite the rule of non-retroactivity established in Johnson v. New Jersey, 384 U.S. 719 , 86 S.Ct. 1772 , 16 L.Ed.2d 882 (1966), because to apply Johnson would deprive appellant of due process of law.

Appeal is properly taken to this court. 28 U.S.C. § 2253 .

Appellant was convicted of murder in the first degree by a jury in the Superior Court of Santa Clara County, California, and, after trial as to penalty, was sentenced to death. On his automatic appeal to the Supreme Court of California, appellant’s conviction and sentence were affirmed. People v. Mathis, 63 Cal.2d 416 , 46 Cal.Rptr. 785, 794, n. 7 , 406 P.2d 65 (1965). His petition for certiorari was denied by the Supreme Court of the United States on October 10, 1966. 385 U.S. 857 , 87 S.Ct. 105 , 17 L.Ed.2d 84 (1966). Habeas corpus petitions addressed to the Supreme Court were twice denied; the first on January 19, 1966 and the second on November 23, 1966.

Thereafter appellant filed his petition for habeas corpus in the United States District Court. That court issued an order to show cause, and immediately appointed counsel to represent appellant. A return was filed by the warden of San Quentin Prison, and a stay of execution and an evidentiary hearing had in the district court. This was described by Judge Wollenberg as a full hearing, which it was. The then petitioner was present and testified, and was at all times supplied with full and adequate legal representation.

The facts which resulted in Mathis’ state conviction are stated by the California Supreme Court at 63 Cal.2d at 419-422 , 46 Cal.Rptr. at 787-789 , 406 P.2d at 67-69 , as follows:

We can do no better than to quote the language used by the district judge in his careful consideration of incidents and the facts surrounding the giving of the petitioner’s incriminating statement.

We next consider seriatim the various matters urged by appellant, and the manner in which they were determined by the able district judge.

I

The primary question before the district court (“the ultimate test,” Culombe v. Connecticut, 367 U.S. 568, 602 , 81 S.Ct. 1860 , 6 L.Ed.2d 1037 (1961)) was whether the statement given by the defendant was the result of coercion, i. e., whether it was involuntary — not “an independent decision” on his part. If the petitioner’s conviction was based, in whole or in part, on an involuntary confession, regardless of its truth or falsity, petitioner’s constitutional rights have been violated. Miranda v. Arizona, 384 U.S. 436, 464, n. 33 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).

On this appeal, and particularly on this part of it, appellant relies heavily on Culombe v. Connecticut, supra. We paraphrase or quote some of its passages to guide us in testing the facts of this case.

Our task is to apply these tests to 'the facts of this case, as did the district judge. Appellant’s counsel urges that the district court’s “findings of fact * * * and the undisputed testimony in the record compel the conclusion that appellant’s statements were the product of an overborne will.” (Opening Brief, p. 12. The trial court disagreed, and we disagree.

One of the most unique features of this case is that “during the entire time petitioner was being questioned in the interrogation room at the San Jose Police Station on October 20 and 21, the conversations between petitioner and police were being tape recorded,” (emphasis added) and the tapes were admitted into evidence at the evidentiary hearing before the district court (Exs. 1-6, inclusive). The accuracy of the tapes is not disputed.

It should be kept in mind that the district judge heard the recordings of everything said by appellant and the police from the time of his arrest at 3:00 p. m. on October 20, 1963, to and through the statement made at 2:45 p. m. on October 21, 1963. His findings and conclusions are the result of what he had heard. In other words, the accuracy and authenticity of the tapes not being in dispute, this is one case where “the judge was there.”

A second noteworthy feature of this case is the lack of any evidence of the slightest mistreatment by the police during the interrogation. As District Judge Wollenberg pointed out, the Supreme Court of California considered this factor in its opinion affirming petitioner’s conviction and sentence, as follows:

The pertinence of this observation is emphasized by the lack of emphasis on this appeal of any charge of physical coercion occurring during detention.

As to an alleged lack of food, the district court carefully and accurately read the record, and stated:

The district judge also went into the facts of alleged intoxication:

The next point urged by appellant is the alleged failure to call an attorney for him. This was considered by the district court, who wrote as follows:

Appellant also urges that his physical condition weakened his mental condition and rendered him more susceptible to the incommunicado interrogation. This was likewise carefully considered by the district court, and found adversely to appellant.

The district court further found as to alleged promises that “what was said by police never amounted to a promise of any kind. The statements of the police were essentially informative” (Id. at 9), and “petitioner never responded to these alleged promises” (Id. at 10).

Next, the district court found as to alleged threats:

Again, the district court found:

With respect to appellant’s last point raised on the issue of coercion — that the statement in question was given shortly after the police had arrested the alleged accomplice Still (on whom appellant had previously placed the blame for the murder) and that Still had given police a statement admitting participation in the crime and implicating petitioner — appellant’s brief again overstates his case. This, he urges (Op. Brf., p. 21), was found by the district court “to be the sole reason for appellant giving the police the exculpatory statement.” (Emphasis added.) The district court did not so find — it found the sequence of events “significant.” (Emphasis added. Exhibit A, Appellee’s Brief, p. 11.)

The district court after referring to Billy Still’s statement found:

Throughout his opening brief, appellant refers to the law and facts of Haynes v. Washington, 373 U.S. 503 , 83 S.Ct. 1336 , 10 L.Ed.2d 513 (1963) as controlling . The district court rejected the compelling force of this case as follows:

Upon appeal, unlike at the hearing, appellant strongly urges that Bram v. United States, 168 U.S. 532 , 18 S.Ct. 183 , 42 L.Ed. 568 (1897) is controlling. Though an old case, it is still good law. Beecher v. Alabama, 389 U.S. 35, 39 , 88 S.Ct. 189 , 19 L.Ed.2d 35 (1967). As Culombe, supra, suggests there is no single test, so Bram, supra, states “all the decided [English] cases necessarily rest upon the state of facts which the cases considered * * 168 U.S. at 557 , 18 S.Ct. at 192 . “[I]t has been settled that the mere fact that the confession is made to a police officer, while the accused was under arrest in or out of prison, or was drawn out by his questions, does not necessarily render the confession involuntary * * Id. at 558 , 18 S.Ct. at 192 . The Bram facts differ from those here found. Cf. id. at 561-562 .

The district court had an unusual opportunity to be itself a trier of fact in this matter. It heard the tapes and could assess the convincing force of the live testimony of the petitioner, and certain other witnesses. That court found, and we find, no cause to feel “the defendant’s will was overborne at the time” he made his statement. Lynumn v. Illinois, 372 U.S. 528, 534 , 83 S.Ct. 917, 920 , 9 L.Ed.2d 922 (1963). The California Supreme Court opinion and findings (People v. Mathis, supra, 46 Cal.Rptr. at 794, n. 7 , 406 F.2d at 74) carry a presumption they are correct. 28 U.S.C. § 2254 (d). United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296, 299 (2d Cir. 1968). This, plus the district court’s careful consideration of the matter, and our independent study of the entire record (Spano v. New York, 360 U.S. 315, 316 , 79 S.Ct. 1202 , 3 L.Ed.2d 1265 (1969)), causes us to conclude no error was committed by the district court in its consideration of the facts before it, nor in its interpretation of the law disputed here by appellant on the issue of coercion. We affirm the district court’s finding that there was no coercion.

II

Appellant’s second alleged error is the effect of his participation (or lack of it) at a re-enactment by the codefendant Still of the murder in Alum Rock Park.

There appellant Mathis refused to participate in the re-enactment but stood mute. The district court judge had this to say:

Thus the facts of this case are distinctly different from those cited by appellant’s counsel, where the Government attempted to prove the silence as an admission, or as impeachment. Stewart v. United States, 366 U.S. 1 , 81 S.Ct. 941 , 6 L.Ed.2d 84 (1961); Helton v. United States, 221 F.2d 338 (5th Cir. 1955). And appellant has pointed out no evidence to contradict that relied upon by the district court.

Ill

We decline to extend the Escobedo rule (supra) to cases excluded by the Supreme Court in Johnson v. New Jersey, supra. Appellant was brought to trial more than two months prior to the decision in Escobedo . If the Johnson rule does not deprive other defendants (whose trials started before June 22, 1964) of due process, it does not deprive this appellant of due process. Cf. Davis v. North Carolina, supra; Boulden v. Holman, 394 U.S. 478 , 89 S.Ct. 1138 , 22 L.Ed.2d 433 (1969).

We affirm.

. We note the district judge assumed that, since Miranda , there is no distinction between an exculpatory statement and an inculpatory statement. Miranda v. Arizona, 384 U.S. 436 , 86 S.CVt. 1602, 16 L.Ed.2d 694 (1966). We assume, with him, there was here an incriminating statement.