Ruben Benn v. Frank A. Eyman, Warden

(concurring) :

I concur in the result.

436 F.2d 1074 Ruben BENN, Plaintiff-Appellant, v. Frank A. EYMAN, Warden, Defendant-Appellee. No. 25546. United States Court of Appeals, Ninth Circuit. Jan. 19, 1971. McCafferty & Loftus, Phoenix, Ariz., for plaintiff-appellant. Gary K. Nelson, Ariz. Atty. Gen., Carl Wagg, Asst. Atty. Gen., Phoenix, Ariz., for defendant-appellee. Before CHAMBERS, BARNES and TRASK, Circuit Judges. PER CURIAM: 1 Petitioner, a state prisoner, appeals from the order of the district court denying his petition for writ of habeas corpus. We affirm the order of the district court. 2 Petitioner was charged with three felonies, one count of attempted rape and two counts of burglary. On the scheduled day of trial on the attempted rape charge, which was to be tried first, the attorney prosecuting that charge was ill. The trial was continued, and one of the burglary counts was set to be tried the next day. 3 The next day, petitioner's appointed counsel moved for a continuance because he did not have a copy of the transcript of the preliminary hearing for the burglary count to be tried that day. The state trial court denied the motion because defense counsel had, on the previous day, stated that he had the…

Petitioner, a state prisoner, appeals from the order of the district court denying his petition for writ of habeas corpus. We affirm the order of the district court.

Petitioner was charged with three felonies, one count of attempted rape and two counts of burglary. On the scheduled day of trial on the attempted rape charge, which was to be tried first, the attorney prosecuting that charge was ill. The trial was continued, and one of the burglary counts was set to be tried the next day.

The next day, petitioner’s appointed counsel moved for a continuance because he did not have a copy of the transcript of the preliminary hearing for the burglary count to be tried that day. The state trial court denied the motion because defense counsel had, on the previous day, stated that he had the transcript for the burglary charge.

Petitioner then withdrew his plea of not guilty to the burglary count on trial and entered a plea of guilty. The charge of attempted rape and the other burglary count were dismissed.

Petitioner’s principal contention on appeal is that Boykin v. Alabama, 395 U.S. 238 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969) requires that his writ be *1075 granted. Boykin , where…