Gary D. Gardner v. Edwin Pogue, Warden Nevada State Penitentiary

On August 1, 1977, this court considered whether a petition for habeas corpus was properly before us in the light of Fed.R. App.P. 22(b). We concluded that without a certificate of probable cause from the district court, or a statement of its reasons for declining to issue one, we lacked jurisdiction to hear the appeal. Gardner v. Pogue, 558 F.2d 548 (9th Cir. 1977). We also held that leave to proceed in forma pauperis is not “tantamount” to the issuance of a certificate of probable cause. We therefore remanded for further proceedings consistent with our opinion.

The appellant has now applied for and been issued a certificate of probable cause by the district court and is before us urging that his guilty plea was obtained in violation of his constitutional rights. We proceed to consider the merits.

Appellant had been arrested and held for trial on a charge of murder in 1967 in the state court of Nevada. He contends that he entered a plea of guilty to second degree murder upon promises by the prosecution and by his own attorney that if he did so he would receive a sentence of imprisonment of ten years. When his plea of guilty was accepted, he was sentenced to imprisonment for a…