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Hernandez v. Nelson

United States Court of Appeals, Ninth Circuit
Jun 10, 1969
411 F.2d 619 (9th Cir. 1969)

Opinion

No. 23126.

April 30, 1969. Rehearing Denied June 10, 1969.

William D. Stein (argued), Deputy Atty. Gen., Thomas C. Lynch, Atty. Gen., Derald E. Granberg, Deputy Atty. Gen., San Francisco, Cal., for appellant.

David B. Frohnmayer (argued), San Francisco, Cal., for appellee.

Before HAMLIN, KOELSCH and ELY, Circuit Judges.


The judgment of the District Court granting petitioner a writ of habeas corpus is affirmed for the reasons and on the basis of that court's opinion, which is reported in 298 F. Supp. 682 (N.D.Cal. 1968).

However, it appears that if the state does not retry the petitioner, or if a retrial results in an acquittal, then the petitioner, has a remedy in the California state courts to determine whether the revocation of his parole from the unrelated conviction should be set aside. (Cal.Pen.Code § 3063); In re Payton, 28 Cal.2d 194, 169 P.2d 361 (1946); In re Hall, 63 Cal.2d 115, 45 Cal.Rptr. 133, 403 P.2d 389 (1965). Consequently, we conclude that a federal district court should not initially make this determination. Accordingly, we do not approve of that part of the District Court's judgment provisionally ordering the Adult Authority to show cause why the revocation should stand.

Affirmed, as modified.


Summaries of

Hernandez v. Nelson

United States Court of Appeals, Ninth Circuit
Jun 10, 1969
411 F.2d 619 (9th Cir. 1969)
Case details for

Hernandez v. Nelson

Case Details

Full title:Guadalupe Rocha HERNANDEZ, Appellee, v. Louis S. NELSON, Warden…

Court:United States Court of Appeals, Ninth Circuit

Date published: Jun 10, 1969

Citations

411 F.2d 619 (9th Cir. 1969)

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