Elias B. Foster v. Harold v. Field

Appellant, a prisoner of the State of California, appeals from an order of the United States District Court denying his petition for a writ of habeas corpus. Appellant was convicted of violating Sec. 288 of the Penal Code of the State of California [lewd or lascivious acts upon a child], with a prior felony conviction in California of assault with a deadly weapon. Trial was to the court sitting without a jury, a jury having been expressly waived as provided by law.

On appeal to the Supreme Court of the State of California, the judgment of conviction was affirmed. People v. Foster, 67 Cal.2d 604 , 63 Cal.Rptr. 288 , 432 P.2d 976 (1967). Appellant was represented by counsel both at his trial and on his appeal to the California Supreme Court.

We note the absence from the record on appeal of a certificate of probable cause. The record discloses that appellant requested the district judge to issue such a certificate, and likewise discloses the district court refused to do so, stating, inter alia:

28 U.S.C. § 2253 provides, in part, as follows:

Rule 22(b) of the Federal Rules of Appellate Procedure provides, in pertinent parts:

Appellant has made no request to this Court, or to the…