Opinion
No. 22617.
February 13, 1969.
Donald L. Velasquez, Walla Walla, Wash., for appellant.
John J. O'Connell, Atty. Gen., Olympia, Wash., for appellee.
Before BARNES, MERRILL, and BROWNING, Circuit Judges.
This is an appeal from the dismissal of a petition for habeas corpus.
The district court held that petitioner lacked standing to challenge the constitutionality of a search and seizure since he denied that the premises searched were his. Petitioner was convicted of possession of the property seized in the search, and his standing is therefore established by Jones v. United States, 362 U.S. 257, 263-264, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).
The district court dismissed the petition on the further ground that petitioner would not be eligible for immediate release even if the convictions which he challenged were found to be invalid since he would still be required to serve a separate consecutive sentence which he did not attack. This ground for denying relief on habeas corpus was rejected by the Supreme Court in Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), decided after the district court's ruling.
Appellant's motion to quash appellee's brief is denied. Appellant's motion for appointment of counsel on this appeal is also denied. The judgment is reversed and the cause is remanded for further proceedings. If appellant's motion for appointment of counsel is renewed on remand, the district court may wish to consider the desirability of appointing counsel in view of the difficult issues presented by appellant's petition.