489 F2d 734 Naughten v. C Cupp

489 F.2d 734

Hugh NAUGHTEN, Appellant,
v.
Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Appellee.

No. 71-3065.

United States Court of Appeals, Ninth Circuit.

Jan. 15, 1974.

Ross R. Runkel (argued), Salem, Ore., for appellant.

Lee Johnson, Atty. Gen., Jim G. Russell, Asst. Atty. Gen., John W. Osburn, Sol. Gen. (argued), Salem, Ore., for appellee.

Before ELY and HUFSTEDLER, Circuit Judges.1

OPINION ON REMAND

PER CURIAM:

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1

In Naughten's original appeal to this court, the District Court's denial of his petition for habeas relief was reversed. 476 F.2d 845 (9th Cir. 1973). The appellee's petition for rehearing was denied by an equally divided vote of the twelve judges who then constituted this court. Thereafter, the appellee sought, and was granted, a writ of certiorari, and on December 4, 1973, the Supreme Court issued an opinion in which the judgment of our court was reversed. 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973).

2

The mandate of the Supreme Court was received by the Clerk of our court of January 7, 1974. After reciting that the original judgment of our court is reversed, the Supreme Court's mandate provides that the cause is 'remanded (to our court) for further proceedings in conformity with the opinion of this court.' Only one issue was presented in Naughten's original appeal, and since that issue has now been finally resolved, adversely to him, the District Court's Order denying Naughten's petition for a writ of habeas corpus is

3

Affirmed.

1

The late Judge Jertberg participated in this court's original opinion. Since the subsequent Supreme Court opinion fixes the only disposition that is possible, the two judges issuing the present opinion have decided that the selection of a third judge is unnecessary