ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a State prisoner incarcerated at the California State Prison at Folsom. Petitioner was convicted by a jury of assault with a deadly weapon on a police officer in violation of Calif. Penal Code § 245(b) (West, 1957), and in 1962, after he admitted two prior felonies, a 1947 robbery and a 1955 burglary conviction, he was sentenced by the Superior Court for the County of Los Angeles to life imprisonment as a habitual criminal, Calif. Penal Code § 644(a) (West, 1957). The conviction was affirmed by the California Court of Appeal, Second Appellate District, People v. Cline, 222 Cal.App.2d 597 , 35 Cal.Rptr. 420 (1963), and a hearing was denied by the California Supreme Court. In 1964, he filed a Petition for Writ of Habeas Corpus in the United States District Court, Northern District of California, Civil No. 8792, in which Petitioner alleged that he was deprived of his right to counsel in the 1947 conviction, which was used to augment his 1962 sentence pursuant to the habitual criminal statute. Judge Sherrill Halbert denied the Petition and a certificate of probable cause was denied by the United States Court of Appeals, Ninth Circuit. In 1967, the California Court of Appeal, Third Appellate District, In re Cline, 255 Cal.App.2d 115 , 63 Cal.Rptr. 233 (1967), denied another petition for writ of habeas corpus, and the California Supreme Court denied a hearing.

Seven contentions concerning the 1962 conviction and sentence are presented:

1) That Petitioner was denied his Fifth and Fourteenth Amendment rights because statements were admitted at his trial that were elicited by police interrogation while Petitioner was in the hospital in “critical condition”.

2) That he was denied “due process” because evidence was confiscated, he was confined in a small jail cell during the time when he was attempting to prepare a defense, and he was denied the right to counsel.

3) That he was denied the right of compulsory process for obtaining witnesses.

4) That he was denied “due process” because an allegedly invalid Nevada conviction was placed on the counsel table in full view of the jurors.

5) That he was denied counsel in the 1947 conviction that was used to augment the 1962 sentence pursuant to the California Habitual Criminal Statute, Calif. Penal Code § 644(a) (West, 1957).

6) That the habitual criminal statute was incorrectly applied to him.

7) That he was denied “due process” because he was denied the right to a complete appeal when he was allegedly restrained from filing a petition for writ of certiorari in the United States Supreme Court.

After reviewing the Petition, the Response, the numerous exhibits attached to the Response, and the two published and one unpublished opinions involving Petitioner’s 1962 conviction and sentence, this Court is fully advised in the premises and thus orders that the Petition for Writ of Habeas Corpus be denied for the following reasons.

*999 Petitioner’s first claim, that he was denied his Fifth and Fourteenth Amendment rights by the admission of the statements elicited from him at the hospital, is without merit. Escobedo v. Illinois, 378 U.S. 478 , 84 S.Ct. 1758 , 12 L.Ed.2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966) are not applicable to Petitioner’s 1962 conviction because the two decisions are not retroactive. Johnson v. New Jersey, 384 U.S. 719 , 86 S.Ct. 1772 , 16 L.Ed.2d 882 (1966). The pre-Miranda law dealing with involuntary confessions does not require us to hold that it was error to admit the hospital statements, particularly since Petitioner does not present any facts that show the statements were coerced. See In re Cline, 255 Cal.App.2d 115 , 63 Cal.Rptr. 233 (1967).

Contentions two through six were presented on appeal to the California Court of Appeal, Second Appellate District, 222 Cal.App.2d 597 , 35 Cal. 420 (1963), and were determined to be without merit. The Court’s findings were set forth in an exhaustive written opinion, 222 Cal. App.2d at 600-602 , 35 Cal.Rptr. at 422 -423:

In addition, Petitioner presented two of . .the- same contentions in his petition for habeas corpus that was filed and denied in the Court of Appeal, Third Appellate District, 255 Cal.App.2d 115 , 63 Cal.Rptr. 233 (1967). Petitioner, who was represented by appointed counsel, alleged that there was error in his 1962 trial because the judge admitted his hospital statements and incorrectly ruled that he was a habitual criminal pursuant to Calif. Penal Code § 644(a) (West, 1957). The Court of Appeal rejected both of these grounds and denied the writ of habeas corpus. The United States Supreme Court denied certiorari, Cline v. California, 392 U.S. 938 , 88 S.Ct. 2311 , 20 L.Ed.2d 1397 (1968).

Petitioner has not established by convincing evidence that the factual determinations by these two California Courts of Appeal were erroneous. Consequently this Court now finds that Petitioner has not overcome the presumption that the conclusions expressed in the State Courts’ written opinions are correct, as required by 28 U.S.C. § 2254 (d) (Supp., 1967), which provides:

From our examination of the relevant facts and proceedings in the State courts, it now appears that Petitioner’s second, third, fourth, fifth and sixth contentions were adequately litigated, that the State process gave fair consideration of the issues and of the evidence, and that the State court made determinations which are supported by substantial evidence. This Court is satisfied that the State decisions were fairly rendered, that a just determination of this controversy has been reached, and that all Federal standards have been met. Herring v. California, 411 F.2d 604 (9th Cir., 1969).

In the seventh contention Petitioner alleges that in 1964 he was somehow held incommunicado and was thereby prevented from filing a petition for writ of certiorari in the United States Supreme Court. The published opinion of the California Court of Appeal, Second Appellate District, shows that Petitioner was represented by counsel on appeal, and that “A petition for a rehearing was denied December 18, 1963, and a petition for a hearing by the [California] Supreme Court was denied February 19, 1964.” 222 Cal.App.2d at 602 , 35 Cal.Rptr. at 420 . In view of these numerous appeals when he was represented by counsel, 222 Cal.App.2d at 598 , 35 Cal.Rptr. 420 , and the fact that the California Court of Appeal, Second Appellate District, found frivolous a similar claim that Petitioner had been held incommunicado prior to the 1962 trial, 222 Cal.App.2d at 601 , 35 Cal.Rptr. 420 , this Court does not have any difficulty in declaring the seventh contention to be without merit. Since Petitioner did not present the seventh contention in any earlier attempt to *1001 get post-conviction relief, this Court is strengthened in its belief he was not held incommunicado and his seventh contention is a complete fabrication.

The present Petition is the second application for Writ of Habeas Corpus filed by Wallace Dean Cline in the United States District Court. In 1964, Cline filed a Petition in the Northern District of California, Civil No. 8792, in which he alleged that he was deprived of the right to counsel in the 1947 conviction that was used to augment his sentence under the State habitual criminal statute. It is clear from an examination of the Petition filed in the Northern District and from the Court’s Memorandum and Order denying the Petition, that Cline did not present all of the allegations that he had previously presented in his 1963 State appeal.

In the present second attempt at Federal post-conviction relief, Petitioner alleges most of the allegations included in the 1963 State appeal, and this Court believes that the belated presentation of these new grounds demonstrates that Petitioner deliberately withheld the newly asserted grounds and otherwise abused the Writ of Habeas Corpus. 28 U.S.C. § 2244 (b) (Supp., 1967); Sanders v. United States, 373 U.S. 1 , 83 S.Ct. 1068 , 10 L.Ed.2d 148 (1963).

From the preceding analysis of Petitioner’s contentions, it is apparent that there are no grounds or reasons of any kind to grant an evidentiary hearing, or to support the issuance of a writ of habeas corpus. Petitioner is not entitled to any relief since he does not demonstrate that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241 (c) (3) (1959); In re Burrus, 136 U.S. 586 , 10 S.Ct. 850 , 34 L.Ed. 500 (1890); and Martinez v. Wilson, 357 F.2d 173 (9th Cir., 1966).

Therefore, it is hereby ordered that the Petitioner for Writ of Habeas Corpus be, and the same is, denied; and further that a copy of the papers in this proceeding be forwarded immediately to the California Adult Authority for eonsideration in connection with determination of Petitioner’s rehabilitation and eligibility for release from custody.