Hastings, Chief Judge, and Schnackenberg and Knoch, Circuit Judges.
The relator, Erskine Gates, was convicted in 1939 on three counts of burglary and was sentenced to serve a term of one year to life. In 1956, he sought writ of habeas corpus in the United States District Court. On appeal, this Court reversed denial of the writ, stating that relator was entitled to a hearing.
In the interim, however, relator was enlarged on parole, and this Court granted the Attorney General's motion to vacate the opinion as moot. The petition for writ of habeas corpus was dismissed without prejudice.
When relator was remanded for violation of parole, he filed his current petition for writ of habeas corpus, on which there was a hearing in the United States District Court. Documentary and oral evidence was adduced. Post-hearing briefs were filed. The District Judge filed his Memorandum, made Findings of Fact, and Conclusions of Law, and entered an order denying the writ. This appeal followed.
The relator's contentions may be summarized as follows:
1. The evidence indicated that he was arrested on the basis of information revealed by one Ira Shaw; that the arrest of Shaw was invalid and that information obtained from him cannot be used to establish probable cause for relator's arrest.
2. Relator was not taken before a magistrate without unnecessary delay; and the evidence shows that he was denied access to friends, relatives and counsel.
3. (a) While the District Court found none of the relator's Constitutional rights were violated, there was no explicit finding that his trial met the degree of fairness required by the Constitution, and as deprivation of counsel made evidence obtained during such deprivation inadmissible, his conviction was invalid.
(b) Although there was testimony that the relator admitted his guilt to his counsel, a "not guilty" plea was allowed to stand with the result that relator was not admonished by the Court as to the effect of a guilty plea, and yet the trial was conducted as though he had pleaded nolo contendere, a situation to which relator did not give understanding consent.
(c) Through no apparent fault of the Public Defender, insufficient consultation time was allowed to examine potential witnesses, determine objections and the course to be followed on trial.
The testimony of the witnesses was in conflict on several vital issues. It is axiomatic that this Court will not set aside the District Court's findings of fact unless they are clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure. This rule is applicable to review of habeas corpus as well as other cases. Barber v. Gladden, 9 Cir., 1964, 327 F.2d 101, 103-104. The rule is particularly apt where, as here, many of the findings turn on credibility.
The District Court found that a detail of the Chicago Police Department was concentrating on a series of unsolved burglaries in 1939. An anonymous telephone call suggested inquiry of Ira Shaw at a stated address. Shaw was found at that address. When brought to the police station he confessed, giving details of the locations and property taken in the burglaries which tallied with facts already known to the police. He turned over stolen items which were in his home and relinquished pawn tickets for other stolen items. He specifically implicated the relator as one of his accomplices.
According to the relator's testimony, he was arrested by three Chicago police officers at his home on February 28, 1939, in the presence of his mother and sister. The District Court found that the arresting officers had specific and reliable information sufficient to "'warrant a man of reasonable caution in the belief' that a felony had been committed. Carroll v. U.S., 267 U.S. 132, 162 [45 S. Ct. 280, 69 L. Ed. 543]." (1925). The evidence adduced would clearly support an inference that Shaw's statement at the police station was an intervening independent act of free will. We have here no such regrettable circumstances as those attending the arrest and statements of Toy in Wong Sun v. U.S., 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963) on which relator relies. In that case, federal agents rang the bell of a laundry of which James Wah Toy was the operator, although his name was not on the door, at 6 a.m. When the door opened, one agent said he was calling for laundry. Toy told him the laundry would open at 8 a.m. and advised him to return then. He tried to close the door. The agent then identified himself. Toy slammed the door and ran back ...