Booker T. Hillery, Jr. v. Reginald Pulley, Warden

733 F.2d 644, 1984 U.S. App. LEXIS 22528

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 14, 1984
• Docket: 83-2017
• Status: Published

Opinions

In this matter, petitioner Booker T. Hillery, Jr., successfully challenged the constitutionality of his 1962 Kings County Superior Court judgment of conviction and sentence for the stabbing murder of a fifteen-year-old girl, in violation of California Penal Code § 187, by applying for a writ of habeas corpus in the District Court. The District Court granted the writ upon concluding that petitioner’s conviction resulted from a denial of equal protection because black persons had been systematically excluded from selection to the Kings County grand jury for the years preceding his 1962 indictment.

We affirm upon the basis and for the reasons set forth in the excellent and extensive District Court opinion granting the application. Hillery v. Pulley, 563 F.Supp. 1228 (E.D.Cal.1983). See also Hillery v. Pulley, 533 F.Supp. 1189 (E.D.Cal.1982) (denial of government’s motion to dismiss for failure to exhaust); Hillery v. Sumner, 496 F.Supp. 632 (E.D.Cal.1980) (denial of government’s motion to dismiss for prejudicial delay).

The judgment of the United States District Court granting petitioner’s application for writ of habeas corpus is AFFIRMED.

The matter is REMANDED to the District Court for issuance of the writ and other appropriate order.

The state may seek to recharge and try petitioner again by the procedure which conforms to constitutional requirements.