Opinion
No. 23438.
May 22, 1969.
Erik M. O'Dowd (argued), Tucson, Ariz., for appellant.
Rubin Salter, Jr., (argued), Asst. U.S. Atty., Edward E. Davis, U.S. Atty., Tucson, Ariz., for appellee.
Before MERRILL, BROWNING, and DUNIWAY, Circuit Judges.
Defendant was convicted upon a charge of violating 18 U.S.C. § 2312. The sole contention on appeal is that defendant did not effectively waive his right to the assistance of counsel at trial. Defendant concedes that this contention rests largely upon allegations of fact outside the record, and of course we are limited on this appeal to the record made in the court below.
Contrary to defendant's assumption, the right to present constitutional issues requiring consideration of facts not appearing in the trial record by a proper petition under 28 U.S.C. § 2255 would not have been prejudiced by failure to pursue an appeal from the original conviction, and is not prejudiced by this affirmance.
The judgment is affirmed.