James Eillis Shepherd v. Louis S. Nelson, Warden, California State Prison

Appellant, a state prisoner convicted of rape and attempted rape, appeals from an order dismissing his petition for writ of habeas corpus without an evidentiaryhearing. We affirm.

(1) The petition alleged that appellant was deprived of his rights of confrontation and cross-examination. The district court correctly dismissed this claim as being a bare conclusion, unsupported by allegations of underlying fact. Berry v. California, 363 F.2d 754, 755 (9th Cir. 1966); Schlette v. People of State of California, 284 F.2d 827, 834 (9th Cir. 1960).

(2) It was alleged that appellant was convicted on insufficient evidence. But the face of the petition reveals that the testimony of the complaining witness provided sufficient evidence to sustain appellant’s conviction against a due process attack. See Barquera v. People of State of California, 374 F.2d 177, 179-180 (9th Cir. 1967); Fernandez v. Klinger, 346 F.2d 210, 211 (9th Cir. 1965).

(3) Appellant’s third contention was that the state trial court erred in failing to give certain instructions on circumstantial evidence. Habeas corpus is not available to set aside a conviction on the basis of an erroneous jury instruction unless the error…