Osborn Olden v. Lester J. Pope

This appeal by a state prisoner is from the denial of his application for a writ of habeas corpus without an evi-dentiary hearing. Petitioner urges that he was permitted at his preliminary hearing in 1959 to incriminate himself without a knowing and intelligent waiver of his right to counsel.

The District Judge had before him the transcript of the proceedings before the Magistrate. That transcript has been examined by us and we find a careful and detailed examination of the petitioner by the Magistrate on the waiver of counsel.

This Court’s decisions in Anthony v. Fitzharris, 389 F.2d 657 (9 Cir. 1968) and Wilson v. Harris, 351 F.2d 840 (9 Cir. 1965), hold in essence that to determine whether there was a knowing and voluntary waiver of counsel there should be an evidentiary hearing. Each of these two cases is distinguishable on its facts. In each instance the petitioner was not sufficiently admonished of his rights or of the seriousness of the charge.

This case is factually like United States ex rel. Miner v. Erickson, 428 F.2d 623 (8 Cir. June 5, 1970, opinion by then Circuit Judge Blackmun). In that case, although the defendant disclaimed the ability to read and write, he had…