409 F2d 208 Rhinehart v. B J Rhay

409 F.2d 208

Keith Milton RHINEHART, Petitioner-Appellant,
B. J. RHAY, Superintendent, Washington State Penitentiary,
Respondent- Appellee.

No. 23113.

United States Court of Appeals Ninth Circuit.

March 5, 1969
As Modified March 27, 1969.

Malcolm L. Edwards (argued), Seattle, Wash., for appellant.

Lee Rickabaugh (argued), Asst. Atty. Gen., John J. O'Connell, Atty. Gen., Stephen C. Way, Asst. Atty. Gen., for appellee.

Before HAMLEY, MERRILL and HUFSTEDLER, Circuit Judges.


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This appeal is taken from an order of the District Court denying petition for writ of habeas corpus without hearing.


Appellant claims that his right to equal protection of the laws was violated by virtue of the fact that the Washington sodomy statute under which he was convicted is being discriminatorily enforced in cases of private, consensual incidents between sexually mature adults. In our judgment factual issues are presented by this claim on which no state findings have been made and which require an evidentiary hearing. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).


Appellant also claims that perjured testimony was knowingly used by the state. Upon this claim the state courts have found against appellant. However, the adequacy of the state findings has been subjected to serious doubt by new evidence contained in the principal witness' latest retraction. Since an evidentiary hearing must, in any event, be held we feel that it should deal with this claim as well.


Reversed and remanded for further proceedings.