
    Irving Eugene NEY, Petitioner and Appellant, v. E. J. OBERHAUSER, Appellee.
    No. 23141.
    United States Court of Appeals Ninth Circuit.
    Dec. 22, 1969.
    
      Kenneth A. Cocks (argued), Thomas G. DeJonghe (argued), San Francisco, Cal., Irving Eugene Ney, pro se, for appellant.
    Jack K. Weber (argued), Asst. Atty. Gen., Thomas C. Lynch, Atty. Gen., State of Cal., Los Angeles, Cal., for appellee.
    Before CHAMBERS and ELY, Circuit Judges, and LEVIN, District Judge.
    
      
       The Honorable Gerald S. Levin, United States District Judge for the Northern District of California, sitting by designation.
    
   CHAMBERS, Circuit Judge:

In a California state court, Ney was convicted of a rather aggravated mayhem.

There was a confession which was not introduced in evidence. And, the confession was not needed to make the state’s case. It seems clear that the trial court did not intend to admit the confession. But earlier the district attorney in an opening statement to the jury alluded to the confession. This, it is asserted, was just as bad as admitting an illegally obtained confession. The state says the error was harmless.

Notwithstanding the fact that Ney has been to the state courts of California many times, it is now conceded that he has never squarely asked the California courts to examine the record in the light of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

The district court’s order denying a writ of habeas corpus is affirmed for the reason that we hold this is a case where California should first weigh the applicability of Chapman.

Obviously the affirmance is without prejudice.  