Richard Lee Davidson and Walter Vernon Thomas, Appellants, v. Warden J. H. Klinger, California Men's Colony, and Warden A. L. Oliver, Folsom Prison, Appellees, 411 F.2d 746 (9th Cir. 1969)

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U.S. Court of Appeals for the Ninth Circuit - 411 F.2d 746 (9th Cir. 1969) May 27, 1969
Rehearing Denied July 9, 1969

Joseph L. Armijo, Jr. (argued), Torrance, Cal., for appellant.

Ronald M. George (argued), Deputy Atty. Gen., Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Los Angeles, Cal., for appellee.

Before HAMLEY and BROWNING Circuit Judges, and POWELL, District Judge.* 


In this habeas proceeding appellants ask a federal court to set aside their state criminal convictions which are still pending on appeal in a state appellate court.

While the federal constitutional question which they present in this federal habeas proceeding may not be available to them on their state appeal, that appeal may result in reversal on some other ground, thereby mooting the federal question.

Moreover, if the federal question is not available to appellants on the pending state appeal, it may be available to them in state post-conviction proceedings instituted after disposition of that appeal. The fact that appellants' state post-conviction proceedings, instituted pending the state appeal, resulted in the denial of relief, is not dispositive as to the availability of a state post-conviction remedy after the state appellate court has acted upon the appeal.

Appellants have not exhausted their available state remedies. See 28 U.S.C. § 2254 (1964); Christiansen v. O'Connor, 9 Cir., 378 F.2d 364. On this ground, and without prejudice to appellants' right to raise a constitutional question in a federal court at the proper time, the order denying the application is



The Honorable Charles L. Powell, United States District Judge for the Eastern District of Washington, sitting by designation