Wilbert Lofton v. Raymond K. Procunier, Director of California Department of Corrections

Lofton appeals from the District Court’s denial of his attack, under 28 U.S.C. § 2254 , upon his conviction and incarceration by California authorities. He alleged that his 1967 state conviction for burglary was constitutionally infirm because (1) he was denied the right to be represented by counsel of his choice, and (2) he was denied effective assistance of competent counsel. The District Court denied Lofton’s petition after having conducted a very limited evidentiary hearing thereon.

When Lofton was charged by the California authorities in 1967, he asserted indigency, and counsel was appointed. Following entry and withdrawal of both not guilty and guilty pleas, the appointed attorney finally requested that a not guilty plea be entered and that he be relieved from continuing as attorney of record. Each motion was granted and a public defender, William O’Malley, apparently took over the defense at that time.

Six days prior to the trial date, the defense sought a continuance so that Lofton could secure the assistance of a private attorney, one Perry. Although the judge granted this continuance, he retained the Public Defender as attorney of record and specified that…

(dissenting):

With due respect, I must dissent and would affirm the district court’s denial of habeas corpus relief.

Lofton has challenged a 1967 state court burglary conviction on the grounds that he was denied competent counsel and the right to be represented by counsel of his choice. As I read this record, he is precluded from asserting either challenge because of his own dilatory tactics. The result reached by the majority opinion rewards him for his repeated efforts to prevent his case from ever coming to trial.

Petitioner was charged with burglary on January 19, 1967. When he was arraigned four days later and claimed in-digency, counsel (Mr. Wright) was ap *437 pointed to represent him and Lofton pleaded not guilty. On March 13 he asked to change his plea to guilty and requested probation. His appointed counsel then joined him in a motion to withdraw the guilty plea, asked to be al 1 lowed to withdraw as counsel, and was replaced by the public defender. When the information was amended on May 12 to charge a prior felony conviction, Lof-ton appeared with the public defender, denied the prior conviction and the case was set for trial on May 29.

Six days before trial,…

487 F.2d 434 Wilbert LOFTON, Appellant, v. Raymond K. PROCUNIER, Director of California Department of Corrections, Appellee. No. 73-1082. United States Court of Appeals, Ninth Circuit. Sept. 17, 1973. Rehearing and Rehearing En Banc Denied Dec. 26, 1973. Wilbert Lofton, in pro. per. Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Robert R. Granucci, William D. Stein, Deputy Attys. Gen., San Francisco, Cal., for appellee. Before ELY, WRIGHT and GOODWIN, Circuit Judges. OPINION ELY, Circuit Judge: 1 Lofton appeals from the District Court's denial of his attack, under 28 U.S.C. Sec. 2254 , upon his conviction and incarceration by California authorities. He alleged that his 1967 state conviction for burglary was constitutionally infirm because (1) he was denied the right to be represented by counsel of his choice, and (2) he was denied effective assistance of competent counsel. The District Court denied Lofton's petition after having conducted a very limited evidentiary hearing thereon. 2 When Lofton was charged by the California authorities in 1967, he asserted indigency, and counsel was appointed. Following entry and…