Guadalupe Rocha Hernandez v. Louis S. Nelson, Warden, California State Prison, San Quentin, California

Ninth Circuit

Guadalupe Rocha Hernandez v. Louis S. Nelson, Warden, California State Prison, San Quentin, California

411 F.2d 619

Court of Appeals for the Ninth Circuit·Decided June 10, 1969·No. 23126·Published·Cited by 7 cases

Opinion

PER CURIAM.

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.

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PER CURIAM.

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.

Guadalupe Rocha Hernandez v. Louis S. Nelson, Warden, California State Prison, San Quentin, California, 411 F.2d 619 (9th Cir. 1969).

Pincite

411 F.2d 619 (Guadalupe Rocha Hernandez v. Louis S. Nelson, Warden, California State Prison, San Quentin, California) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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