James Boyd MacKey v. E. J. Oberhauser

437 F.2d 120

James Boyd MACKEY, Plaintiff-Appellant,
v.
E. J. OBERHAUSER, Defendant-Appellee.

No. 26279.

United States Court of Appeals, Ninth Circuit.

January 22, 1971.

James Boyd Mackey, in pro. per.

Thomas C. Lynch, Cal. Atty. Gen., John T. Murphy, Don Jacobson, Deputy Attys. Gen., San Francisco, Cal., for appellee.

Before HAMLEY, MERRILL, and BROWNING, Circuit Judges.

PER CURIAM:

1

Appellant seeks review of an order of the district court denying his petition for habeas corpus without an evidentiary hearing. The order of the district court is affirmed for the following reasons:

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1. The district court correctly determined that a defendant who enters a plea of guilty waives the right to trial by jury as well as the right to confront his accusers. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).

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2. We agree with the district court that no evidentiary hearing was required on appellant's claim of cruel and unusual punishment since the claim was not supported by factual allegations. Schlette v. California, 284 F.2d 827, 833-834 (9th Cir. 1960).

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3. We also agree with the district court that the record conclusively establishes that appellant was afforded adequate representation by counsel, hence no evidentiary hearing on the claim was required. White v. Wilson, 399 F.2d 596, 599 (9th Cir. 1968); Hernandez v. Schneckloth, 425 F.2d 89, 90 (9th Cir. 1970).

5

4. Appellant's allegation that he pleaded guilty because of a prior coerced confession, without more, did not entitle him to a hearing. McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 25 L.Ed.2d 763 (1970).

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5. Finally, appellant's contention that the guilty plea itself was involuntary was not presented to the district court, and we therefore do not consider it. Evans v. Cupp, 415 F.2d 844 (9th Cir. 1969).

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Affirmed.