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

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U.S. Court of Appeals for the Ninth Circuit - 411 F.2d 619 (9th Cir. 1969) 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.

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.