Fava v. Montana, 430 F.2d 1308 (9th Cir. 1970)

No. 23206.

Aug. 5, 1970.

Rehearing Denied Sept. 16, 1970.

Joseph P. Monaghan (argued), Butte, Mont., for appellant.

Charles C. Lovell (argued), Sp. Asst. Atty., Great Falls, Mont., Mark Sullivan, Silver Bow County Atty., Butte, Mont., Robert L. Woodahl, Atty. Gen., Douglas J. Wold, J. C. Weingartner, Asst. Attys. Gen., Helena, Mont., for appellees.

Before DUNIWAY and KILKENNY, Circuit Judges, and PLUMMER, District Judge.*

PER CURIAM:

Appellant appeals from a judgment of the district court denying in part and conditionally granting in part his petition for habeas corpus.

Appellant, on September 29, 1965, then represented by retained counsel, entered a plea of guilty to the crime of assault with a deadly weapon in the district court of the state of Montana for the Second Judicial District. The state court deferred imposition of sentence for 24 months and released appellant on his good behavior. On July 14, 1966, on the state’s petition, he was again brought before the court to impose sentence and was then sentenced to 15 years in prison. He was not represented by counsel at that time.

The record amply supports the finding of the lower court that appellant’s plea of guilty was not induced by a promise of leniency. Moreover, the record clearly demonstrates that appellant has not exhausted his available state court remedies on the other contested issues.

The judgment of the lower court is affirmed in its entirety.