United States of America Ex Rel. G. Daniel Walker v. Jacob B. Gunn, People of the State of California v. G. Daniel Walker

James M. CARTER, Circuit Judge. Petitioner G. Daniel Walker appeals from an order denying his motion for relief pursuant to Fed.R.Civ.P. 60 and denying his petition for a writ of habeas corpus. Both the motion and the petition are based upon petitioner’s contention that his state court trial and conviction are null and void because he had previously filed a petition for removal to federal court, thereby depriving the state court of jurisdiction in the matter. In denying the habeas petition, the district court held that the removal petition had been untimely and that the state court proceedings were therefore valid. We affirm.

FACTS

Petitioner was indicted and tried for first degree murder in California Superi- or Court. On November 19, 1973, preliminary instructions were given to the prospective jurors and voir dire was commenced. Sometime later during that day, petitioner attempted to file a petition for removal to federal court with a federal district court judge, but the judge refused to accept the petition and verbally denied the request for removal.

On November 20, 1973, voir dire continued, several motions by petitioner were heard and denied, a number of jurors were…