People of St. of California v. U.S. Dist. Ct.

Full title: THE PEOPLE OF THE STATE OF CALIFORNIA, PETITIONER, v. UNITED STATES…

Court: United States Court of Appeals, Ninth Circuit

Date published: Aug 30, 1974

502 F.2d 945 (9th Cir. 1974)

Opinion

No. 74-1379.

August 30, 1974.

Juliet H. Swoboda, Deputy Atty. Gen. (argued), Los Angeles, Cal., for petitioner.

Michael P. Balaban, of Balaban, Berman, Selan Stewart (no appearance), Beverly Hills, Cal., for respondents.

S. Thomas Pollack, Deputy Federal Public Defender, Los Angeles, Cal., for real party in interest.

Before CHAMBERS and DUNIWAY, Circuit Judges, and EAST,^_ District Judge.

_ The Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation.

OPINION

PER CURIAM:

Pursuant to our mandate in Smiley v. State of California, 9 Cir., 1971, 442 F.2d 1026, the district court, on August 28, 1973, ordered that an evidentiary hearing on Smiley's petition for a writ of habeas corpus be held before a United States Magistrate, pursuant to 28 U.S.C. § 636(b) and the District Court's General Order 104.

California, through its Attorney General, seeks a writ of mandamus or prohibition to compel the district court to vacate its order and to prohibit the magistrate from holding the hearing. It is ordered that the district court shall vacate its order of August 28, 1973, and reconsider its action in light of Wingo v. Wedding, 1974, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (June 26, 1974).