Daugherty v. Craven

Full title: John Edward DAUGHERTY, Petitioner-Appellant, v. Walter E. CRAVEN, Warden…

Court: United States Court of Appeals, Ninth Circuit

Date published: Apr 27, 1970

422 F.2d 6 (9th Cir. 1970)

Opinion

No. 23373.

January 29, 1970. Certiorari Denied April 27, 1970. See 90 S.Ct. 1509.

John E. Daugherty, in pro. per., appellant.

Thomas C. Lynch, Atty. Gen., State of California, Los Angeles, Cal., for appellee.

Before CHAMBERS and ELY, Circuit Judges, and FERGUSON,^_ District Judge.

_ Hon. Warren J. Ferguson, United States District Judge, Los Angeles, California, sitting by designation.

PER CURIAM:

The dismissal of the petition for a writ of habeas corpus is reversed and the case remanded. The district court must determine whether the ex parte orders revoking probation violated the Sixth Amendment. See Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), and McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968).

From the information before us, it appears that the issue has not been presented to, or considered by, the California courts. The district court may hold the petition in abeyance for a reasonable time in order to afford the California courts the first opportunity to consider the issue. Compare Ney v. Oberhauser, 419 F.2d 828 (9th Cir. 1969).