Appellant, an inmate of Alcatraz prison, petitioned for discharge on habeas corpus and his petition was dismissed on motion of the warden. The question is whether the writ should have been issued and an inquiry into the facts pursued.
The petition discloses that in June 1941 appellant was tried and convicted in the United States Court for the Eastern District of Tennessee on a charge of kidnapping in violation of 18 U.S.C.A. § 408a, and was sentenced to serve twenty-five years. According to the petition, the question presented is “whether the petitioner was deprived of the rights to ,have the effective assistance of his counsel for the purpose of direct appeal.” The allegations are that petitioner was desirous of appealing to the United States Circuit Court for the Sixth Circuit but was prevented from doing so “in that he was deprived to have *375access to his attorney for the purpose of perfecting such appeal, and that the United States Marshal immediately [within fifteen hours] conveyed Petitioner to the United States Penitentiary at Atlanta, Georgia, where Petitioner was deprived of his rights to contact his attorney, and that by such unlawfully acts of the United States Marshal and the Prison Authorities, Petitioner was denied Due Process of Law within the meaning of the Fifth Amendment to the United States Constitution, and that the Judgment and Sentence is ineffective and void, in violation of the Fifth and Sixth Amendments to the United States Constitution.”
In the absence of an appeal or at least of some intimation to the court of the desire to take one, no impropriety is suggested by the circumstance that appellant was conveyed to the penitentiary within fifteen hours after the imposition of sentence. The impropriety resides in the asserted misconduct of the prison authorities in suppressing appellant’s right to contact his counsel, thereby, it is to be assumed, making it impossible for him to take an appeal within the period of five ■days then prescribed by the rule. This is a very generous interpretation of the vague language of the petition, but for the purpose of decision we so construe it. Would the misconduct described, if established as a fact, entitle appellant to the discharge he seeks ? That we deem to be the question here.
This court in Lovvorn v. Johnston, 9 Cir., 118 F.2d 704, affirmed a denial of the writ on a petition containing similar allegations, it being held that the right to assistance of counsel in a criminal case, as guaranteed' by the Sixth Amendment, has reference to the court of first instance only. Later decisions, notably Cochran v. Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L. Ed. 1453, and Boykin v. Huff, 73 App.D. C. 378, 121 F.2d 865, 872, may be thought to throw doubt on the question whether the statutory right of appeal is not a part of due process as guaranteed by the Fifth Amendment. In the Cochran case the petition alleged that officials of the state penitentiary had suppressed appeal documents prepared by the petitioner, thereby making it impossible for him to perfect his appeal during the period allowed by state statute. On the state’s concession that if the facts alleged were disclosed as being true there would be no question but that there was a violation of the equal protection clause of the Fourteenth Amendment, the Supreme Court remanded the case for further proceedings. And the opinion in Boykin v. Huff, supra, intimates that unless the wrong done a convicted party in frustrating his appeal can be righted by now affording it, as was done in that case, discharge on habeas corpus may perhaps be resorted to.
The petition here shows no lack of evidence of guilt, no error in the conduct of the trial, nor any other circumstance which might have warranted a reversal had an appeal been taken, that is to say, there is an entire absence of any showing of prejudice. In this posture of affairs the dismissal was proper. Cf. Miller v. Sanford, D.C., 59 F.Supp. 812, and same case on appeal, 5 Cir., 150 F.2d 637, certiorari denied 326 U.S. 787, 66 S.Ct. 472. We do not, mean to intimate that if there had been a showing of probable cause for an appeal habeas corpus would afford an appropriate corrective.1 We express no opinion as to that.
Affirmed.
The circumstances in Cochran v. Kansas, supra, were different. There the court to which the matter was remanded for inquiry was the court i>ossessing jurisdiction to review for error the judgment of conviction; and similar jurisdictional situations existed in Boykin v. Huff and Miller v. Sanford, supra.