432 F2d 549 Stuart W. Dubois And, v. Carl G. Hocker, Warden, Nevada State Prison

432 F.2d 549

Stuart W. DuBOIS, Petitioner and Appellant,
Carl G. HOCKER, Warden, Nevada State Prison, Appellee.

No. 24201.

United States Court of Appeals, Ninth Circuit.

July 6, 1970.

Stuart W. DuBois in pro. per., appellant.

Harvey Dickerson, Atty. Gen., C. B. Tapscott, Chief Asst. Atty. Gen., Reno, Nev., for appellee.

Before CHAMBERS and CARTER, Circuit Judges, and BYRNE, District Judge.


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The order denying habeas corpus relief is affirmed.


On a Reno municipal prosecution DuBois pleaded guilty to charges under city ordinances for:


1. Carrying a concealed weapon;


2. Discharging a firearm in a public place;


3. Gross intoxication.


While serving the city sentence, he was charged and convicted under a Nevada statute as an ex-felon in possession of firearms. The charges all grew out of the same incident.


DuBois has attempted habeas corpus in the state court and lost. Thus, he has sought relief on the federal side.

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We reject the contention of double jeopardy, although all charges were the same in time and the gun was common to all of them.


Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), precludes prosecution by a state and a municipality of the same offense. But the offenses were not identical. He still could have been guilty of the state offense without being guilty of any of the three municipal offenses. That is one fair working test.


Other points we find without merit.