479 F2d 1327 Murphy v. C Cupp

479 F.2d 1327

Daniel P. MURPHY, Petitioner-Appellant,
Hoyt C. CUPP, Respondent-Appellee.

No. 71-2203.

United States Court of Appeals,
Ninth Circuit.

July 12, 1973.

Howard R. Lonergan (argued), Portland, Or., for petitioner-appellant.

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


Before ELY and HUFSTEDLER, Circuit Judges.1


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In a previous opinion concerning the subject cause, we reversed the judgment of the District Court. Murphy v. Cupp, 461 F.2d 1006 (9th Cir. 1972). Thereafter, the appellee's petition for certiorari was granted, and the Supreme Court, reversing our judgment, has now remanded the cause to this court, "for further proceedings in conformity with the opinion of this Court." Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed. 2d 900 (1973).


The Supreme Court's mandate has now issued. Pursuant to that mandate, we now hold that the District Court's judgment should be, and it hereby is,




Senior Judge Jertberg, who participated in this court's original opinion, is now deceased. Since the Supreme Court's opinion charts the only course which can now be taken, this opinion is being issued by the two surviving judges of the original three-judge panel