502 F2d 945 People of State of California v. United States District Court E Smiley

502 F.2d 945

The PEOPLE OF the STATE OF CALIFORNIA, Petitioner,
v.
UNITED STATES DISTRICT COURT and United States Magistrate,
Respondents, Richard E. SMILEY, Real Party in Interest.

No. 74-1379.

United States Court of Appeals, Ninth Circuit.

Aug. 30, 1974.

Juliet H. Swoboda, Deputy Atty. Gen. (argued), Los Angeles, Cal., for petitioner.

Michael P. Balaban, of Balaban, Berman, Selan & Stewart (no appearance), Beverly Hills, Cal., for respondents.

S. Thomas Pollack, Deputy Federal Public Defender, Los Angeles, Cal., for real party in interest.

Before CHAMBERS and DUNIWAY, Circuit Judges, and EAST,1 District judge.

OPINION

PER CURIAM:

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1

Pursuant to our mandate in Smiley v. State of California, 9 Cir., 1971, 442 F.2d 1026, the district court, on August 28, 1973, ordered that an evidentiary hearing on Smiley's petition for a writ of habeas corpus be held before a United States Magistrate, pursuant to 28 U.S.C. 636(b) and the District Court's General Order 104.

2

California, through its Attorney General, seeks a writ of mandamus or prohibition to compel the district court to vacate its order and to prohibit the magistrate from holding the hearing. It is ordered that the district court shall vacate its order of August 28, 1973, and reconsider its action in light of Wingo v. Wedding, 1974, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (June 26, 1974).

1

The Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation