425 F2d 265 Rhodes v. E Craven

425 F.2d 265

Douglas L. RHODES, Appellant,
Walter E. CRAVEN, Warden, Folsom State Prison, Appellee.

No. 24263.

United States Court of Appeals, Ninth Circuit.

April 3, 1970.

Douglas L. Rhodes, in pro. per.

Thomas C. Lynch, Atty. Gen., State of California, Sacramento, Cal., for appellee.

Before HAMLEY and BROWNING, Circuit Judges, and BYRNE, District judge.1



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It appearing that, in the aboveentitled 'habeas corpus' proceeding appellant does not question his conviction or sentence but seeks injunctive relief and release from custody on the ground that prison officials at California State Prison, Folsom, refuse to give him access to his personal legal books and papers assertedly taken from him at the Correctional Facility, Soledad, California; and it appearing that, since the submission of this appeal on January 5, 1970, appellant has been paroled from California State Prison, Folsom, upon the condition that he go to his Nebraska 'hold' to serve an outstanding three-year sentence in that state; and it appearing that, by reason of the circumstances stated above, it is doubtful that appellant is any longer in need of federal court relief but, if federal relief is still needed in order for Rhodes to obtain access to his legal materials, his remedy would not be habeas corpus (See DeWitt v. Pail, 366 F.2d 682 (9th Cir. 1966)); now, therefore, it is


Ordered, that this appeal is dismissed as moot.

BYRNE, District Judge (dissenting in part):


I agree the appeal should be dismissed as moot. However, I do not join in the Court's legal advice to the petitioner in this habeas corpus proceeding. It may or may not be in agreement with such advice as he may receive from an employed or appointed attorney. That will be determined by this or some other court at the proper time.


The Honorable William M. Byrne, Senior United States District Judge for the Central District of California, sitting by designation