Opinion
No. 10598.
December 12, 1944.
Appeal from the District Court of the United States for the Northern District of California, Southern Division; Michael J. Roche, Judge.
Habeas corpus proceeding by Elliott W. Michener against James A. Johnston, Warden, United States Penitentiary, Alcatraz, Cal. From an order discharging the writ, petitioner appeals.
Affirmed.
Edward F. Treadwell, of San Francisco, Cal., for appellant.
Frank J. Hennessy, U.S. Atty., and R.B. McMillan and Joseph Karesh, Asst. U.S. Attys., all of San Francisco, Cal., for appellee.
Before GARRECHT, STEPHENS, and HEALY, Circuit Judges.
Upon an earlier appeal, Michener v. Johnston, 141 F.2d 171, we sent the case back for appropriate findings on the subject of the waiver of the right to counsel.
No further evidence was taken on the remand. The petitioner requested a finding to the effect that at the time of his arraignment he did not know he was entitled to the benefit of counsel in the event he desired to plead guilty. The court declined to make the finding, but did not in so many words make a finding to the contrary. However, it did find, with our former opinion before it, that "petitioner intelligently, competently and intentionally waived his right of assistance of counsel."
On this record we are constrained to accept the finding as sufficient.
Affirmed.