365 F2d 302 Leyde v. B J Rhay

365 F.2d 302

Earl A. LEYDE, Appellant,
v.
B. J. RHAY, Superintendent Washington State Penitentiary, Appellee.

No. 20853.

United States Court of Appeals Ninth Circuit.

Aug. 25, 1966.

Gordon L. Bovey, Spokane, Wash., for appellant.

John J. O'Connell, Atty. Gen., Stephen C. Way, Paul J. Murphy, Asst. Attys. Gen., Olympia, Wash., for appellee.

Before CHAMBERS, JOHNSEN1 and MERRILL, Circuit Judges.

PER CURIAM:

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1

On this appeal from denial of habeas corpus we agree with the District Court that there is no merit in appellant's first two points: (1) That he was denied right to appeal; (2) that he was forced to plead guilty in order to secure psychiatric treatment. In its rulings upon these issues the District Court is affirmed.

2

However, appellant makes a third contention on which no evidentiary hearing has been had, either in state or federal courts: that he was incompetent to enter a plea of guilty. On this issue he is entitled to hearing and remand is necessary to this end.

3

The District Court may well wish to afford the State of Washington opportunity promptly to entertain the necessary hearing, and our remand does not foreclose the District Court from conditioning its own hearing upon the fact that Washington has failed, within such limited period as the District Court may fix, to provide a hearing upon this specific issue.

4

Reversed and remanded for further proceedings.

5

Appellant's petition to be released on his own recognizance is denied.

1

Harvey M. Johnsen, 8th Circuit, sitting by designation