394 F2d 505 Guerrero v. C J Fitzharris

394 F.2d 505

Ernest GUERRERO, Appellant,
v.
C. J. FITZHARRIS, Superintendent, Department of Corrections,
California, Appellee.

No. 21036.

United States Court of Appeals Ninth Circuit.

April 22, 1968, As Corrected on Denial of Rehearing June 3, 1968.

Ernest Guerrero, in pro. per.

Thomas C. Lynch, Atty. Gen., of the State of California, Robert R. Granucci, James A. Aiello, Deputy Attys. Gen., San Francisco, Cal., for appellee.

Before CHAMBERS, Circuit Judge, MADDEN, Judge of the Court of Claims, and BROWNING, Circuit Judge.

PER CURIAM:

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1

Appellant is presently in California penal custody serving an indeterminate sentence of two-to-ten years on a narcotics conviction. In addition, he faces a future consecutive sentence of one-year-to-life on a conviction for escape without force. Appellant's petition for a writ of habeas corpus showed on its face that the escape conviction was valid. Appellant attacked only the validity of the narcotics conviction. The district court summarily denied the petition, reasoning that even if appellant's narcotics conviction were invalid, appellant would have to serve the sentence on the escape charge and thus appellant was not eligible for the writ because he was not entitled to 'immediate release' within the meaning of McNally v. Hill, 293 U.S. 131, 138, 55 S.Ct. 24, 79 L.Ed. 238 (1934), as interpreted by this court in Hoffman v. United States, 9 Cir., 244 F.2d 378, 381-382 (1957).

2

In its recent decision in Walker v. Wainwright, 390 U.S. 335, 88 S.Ct. 962, 19 L.Ed.2d 1215 (March 11, 1968), the Supreme Court held that McNally was not a bar to habeas corpus attack on the first of two consecutive sentences. Thus, the ground upon which the district court relied in not reaching the merits of appellant's petition is no longer tenable.

3

Reversed and remanded.