Davidson v. Klinger
| Decision Date | 09 July 1969 |
| Docket Number | No. 22563.,22563. |
| Citation | 411 F.2d 746 |
| Parties | Richard Lee DAVIDSON and Walter Vernon Thomas, Appellants, v. Warden J. H. KLINGER, California Men's Colony, and Warden A. L. Oliver, Folsom Prison, Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Joseph L. Armijo, Jr. (argued), Torrance, Cal., for appellant.
Ronald M. George (argued), Deputy Atty. Gen., Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Los Angeles, Cal., for appellee.
Before HAMLEY and BROWNING Circuit Judges, and POWELL, District Judge.*
In this habeas proceeding appellants ask a federal court to set aside their state criminal convictions which are still pending on appeal in a state appellate court.
While the federal constitutional question which they present in this federal habeas proceeding may not be available to them on their state appeal, that appeal may result in reversal on some other ground, thereby mooting the federal question.
Moreover, if the federal question is not available to appellants on the pending state appeal, it may be available to them in state post-conviction proceedings instituted after disposition of that appeal. The fact that appellants' state post-conviction proceedings, instituted pending the state appeal, resulted in the denial of relief, is not dispositive as to the availability of a state post-conviction remedy after the state appellate court has acted upon the appeal.
The Honorable Charles L. Powell, United States District Judge for the Eastern District of Washington, sitting by designation.
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Henderson v. Ryan
...state appeal, because the appeal "may result in reversal on some other ground, thereby mooting the federal question." Davidson v. Klinger, 411 F.2d 746, 747 (9th Cir. 1969); see Sherwood v. Tomkins, 716 F.2d at 634. Dismissal is the appropriate means to abstain in this case. While a stay is......
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Scott v. Schlesinger, 73-3382 and 74-1636.
...* * * his state appeal, that appeal may result in reversal on some other ground, thereby mooting the federal question.\' Davidson v. Klinger, 9 Cir. 1969, 411 F.2d 746. Moreover, federal disruption of the state judicial appellate process would be an unseemly and uncalled for interference th......
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Trujillo v. Stone, C 73-2054-OJC.
...In re Banks, 4 Cal.2d 337, 93 Cal.Rptr. 591 (1971). The state relies on Drury v. Cox, 457 F.2d 764 (9th Cir. 1972) and Davidson v. Klinger, 411 F.2d 746 (9th Cir. 1969) to defeat petitioner, but such reliance is misplaced. These two cases stand for the proposition that federal habeas is nor......
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Coe v. Thurman
...the reversal of the petitioner's conviction on some other ground, thereby mooting the federal question." Id. (citing Davidson v. Klinger, 411 F.2d 746, 747 (9th Cir.1969)); see also Daniels v. Nelson, 415 F.2d 323 (9th Cir.), cert. denied, 396 U.S. 994, 90 S.Ct. 494, 24 L.Ed.2d 459 Our inqu......