411 F2d 1217 Petersen v. Clark L

411 F.2d 1217

Norman Lloyd PETERSEN, Appellee,
Ramsey CLARK,* Attorney General, et al., Appellants.
*Clark, now John L. Mitchell.

No. 23655.

United States Court of Appeals Ninth Circuit.

June 12, 1969.

Jerry K. Cimmet (argued) Asst. U.S. Atty., Cecil F. Poole, U.S. Atty., San Francisco, Cal., for appellant.

Doris Brin Walker (argued) of Trehaft, Walker & Burnstein, Oakland, Cal., for appellee.

Before BARNES, CARTER and HUFSTEDLER, Circuit Judges.


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It appearing to this court that the judgment herein appealed (Petersen v. Clark, 285 F.Supp. 698 (N.D.Cal.1968)) denying the Government's motion to dismiss, was rendered prior to and without knowledge of the Supreme Court's decision in Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418, decided December 16, 1968, in which that Court said:


'We find no constitutional objection to Congress' thus requiring that assertion of a conscientious objector's claim such as those advanced by appellee be deferred until after induction, if that is the course he chooses, whereupon habeas corpus would be an available remedy, or until defense of the criminal prosecution which would follow should he press his objections to his classification to the point of refusing to submit to induction. Estep v. United States, 327 U.S. 114 (66 S.Ct. 423, 90 L.Ed. 567) (1946); Falbo v. United States, 320 U.S. 549, (64 S.Ct. 346, 88 L.Ed. 305) (1944).


'The motion of appellee for leave to proceed in forma pauperis is granted. The decision of the District Court is reversed, and the case remanded for issuance of an order dissolving the preliminary injunction and dismissing the action.' (Id. at 259, 89 S.Ct. at 426),


and because we believe the result on this appeal is dictated by Clark v. Gabriel, supra, and not by Oestereich v. Selective Service Board, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), we reverse the district court and remand with instruction to dismiss the action.