Buck Buster, and v. Carl Hocker, Warden, Nevada State Prison , 428 F.2d 820 ( 1970 )

428 F.2d 820

Buck BUSTER, Petitioner and Appellant,
v.
Carl HOCKER, Warden, Nevada State Prison, Appellee.

No. 24416.

United States Court of Appeals, Ninth Circuit.

July 2, 1970.

Buck Buster in pro. per.

Harvey Dickerson, Atty. Gen., Carson City, Nev., C. P. Tapscott, Chief Asst. Atty. Gen., Reno, Nev., for appellee.

Before CHAMBERS and CARTER, Circuit Judges, and BYRNE, District Judge.

PER CURIAM:

1

The order of the district court denying habeas corpus relief is affirmed.

2

In our view, Rodriguez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340, is not necessarily applicable on federal habeas corpus review of state convictions.

3

Although counsel neglected to complete the state appeal, before we should interfere there should be a showing that there was a valid point that was lost by not taking the state appeal. The point that was lost here for Buster was a contention that he was interrogated in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

4

We agree with the district court that the record before it shows that Buster's interrogation at the time was not custodial. Here examination of the state record was enough without an evidentiary hearing.