Velasquez v. Rhay
| Decision Date | 13 February 1969 |
| Docket Number | No. 22617.,22617. |
| Citation | 408 F.2d 9 |
| Parties | Donald L. VELASQUEZ, Appellant, v. B. J. RHAY, Superintendent, Washington State Penitentiary, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Donald L. Velasquez, Walla Walla, Wash., for appellant.
John J. O'Connell, Atty. Gen., Olympia, Wash., for appellee.
Before BARNES, MERRILL, and BROWNING, Circuit Judges.
This is an appeal from the dismissal of a petition for habeas corpus.
The district court held that petitioner lacked standing to challenge the constitutionality of a search and seizure since he denied that the premises searched were his. Petitioner was convicted of possession of the property seized in the search, and his standing is therefore established by Jones v. United States, 362 U.S. 257, 263-264, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).
The district court dismissed the petition on the further ground that petitioner would not be eligible for immediate release even if the convictions which he challenged were found to be invalid since he would still be required to serve a separate consecutive sentence which he did not attack. This ground for denying relief on habeas corpus was rejected by the Supreme Court in Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), decided after the district court's ruling.
Appellant's motion to quash appellee's brief is denied. Appellant's motion for appointment of counsel on this appeal is also denied. The judgment is reversed and the cause is remanded for further proceedings. If appellant's motion for appointment of counsel is renewed on remand, the district court may wish to consider the desirability of appointing counsel in view of the difficult issues presented by appellant's petition.
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...Williams v. United States, 5 Cir. 1969, 412 F.2d 729, 731; United States v. Gargiso, 2 Cir. 1972, 456 F.2d 584, 586 n. 3; Velasquez v. Rhay, 9 Cir. 1969, 408 F.2d 9, 10; Niro v. United States, 1 Cir. 1968, 388 F.2d 535, 537.8 The conviction here came for possession of the briefcases at the ......
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Duncan v. State
...fould the 'argument (to be) untenable . . ..'); United States v. Allsenberrie, 424 F.2d 1209, 1212-14 (7th Cir. 1970); Valasquez v. Rhay, 408 F.2d 9, 10 (9th Cir. 1969); Cook v. State, 134 Ga.App. 712, 714-15, 215 S.E.2d 728 (1975); State v. Joao, 533 P.2d 270, 274 (Hawaii 1975); State v. D......
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U.S. v. Boston, 74--1791
...element possession of the evidence seized, with such possession or rights to possession existing at the time of seizure. Valesquez v. Rhay, 408 F.2d 9 (9th Cir. 1969). Other circuits have ruled likewise. See, e.g., United States v. Mapp, 476 F.2d 67, 72--73 (2d Cir. 1973); United States v. ......
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...possessory interest to challenge the admission of the evidence." And such rule has been consistently applied. In Velasquez v. Rhay (9th Cir. 1969) 408 F.2d 9, 10, the Court bluntly put "The district court held that petitioner lacked standing to challenge the constitutionality of a search an......