Opinion
No. 71-3007.
May 4, 1972.
William A. Brockett, Robert W. Ripley, Federal Defenders, Benjamin F. Rayborn, Legal Research Associate, San Diego, Cal., for plaintiff-appellant.
Evelle J. Younger, Atty. Gen., Herbert L. Asher, Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Alexander B. McDonald, Mark L. Christiansen, Deputy Attys. Gen., San Diego, Cal., for defendant-appellee.
Appeal from the United States District Court for the Southern District of California.
Before DUNIWAY, TRASK and CHOY, Circuit Judges.
Whitney, a California prisoner, convicted of burglary in 1965, appeals from the denial of his petition for a writ of habeas corpus. He claims that he did not knowingly and intelligently waive his right to appeal because he did not know that he had a right to appeal or that as an indigent he had a right to have appointed counsel on appeal. See Gairson v. Cupp, 9 Cir., 1969, 415 F.2d 352. The district court held an evidentiary hearing at which Whitney and counsel who represented him at his trial testified. There is ample evidence in the record that Whitney knew that he had a right to appeal. His trial counsel did not expressly testify that he did or did not tell Whitney that he would be entitled to appointed counsel; he was not asked. The court was not required to believe Whitney; indeed, from Whitney's testimony the court could infer that he knew a great deal more than he said he did. The burden of proof was on Whitney, Schlette v. California, 9 Cir., 1960, 284 F.2d 827, and he did not sustain it, as the court found.
Affirmed.