Opinion
No. 23353.
July 23, 1970. Rehearing Denied August 27, 1970.
William T. Healy (argued), Tucson, Ariz., for appellant.
Carl Waag (argued), Deputy Atty. Gen., Gary K. Nelson, Atty. Gen., Phoenix, Ariz., for appellee.
Appeal from a denial of habeas corpus.
Petitioner's counsel states in brief: "It is the position of Petitioner that in his various pleadings * * * he advanced certain constitutional questions of such nature, complexity and seriousness, that the District Court could not, in full compliance with Petitioner's constitutional rights, rule thereon without benefit of hearing on the merits and appointment of counsel to aid him therein." We reject the contentions.
Petitioner's application tendered both legal and factual issues. The former, of course, required no evidence to resolve and the record of the proceedings in the state trial court, included as part of respondent's return to the order to show cause, showed that the latter had been reliably determined by the state court after a full hearing. 28 U.S.C. § 2254(d). Nor did the application disclose "unusual circumstances" entitling Petitioner to court-appointed counsel. Schlette v. People, 284 F.2d 827 (9th Cir. 1960), cert. den. 366 U.S. 940, 81 S.Ct. 1664, 6 L.Ed.2d 852.
The judgment is affirmed.