Booker T. Hillery, Jr. v. Reginald Pulley, Warden
733 F.2d 644
9th Cir.
1984
Check Treatment

Booker T. HILLERY, Jr., Petitioner-Appellee, v. Reginald PULLEY, Warden, Respondent-Appellant.

No. 83-2017

United States Court of Appeals, Ninth Circuit

Submitted April 12, 1984. Decided May 14, 1984.

644

Before ANDERSON and SCHROEDER, Circuit Judges, and EAST, District Judge.

Clifford Tedmon, Sacramento, Cal., for petitioner-appellee. Willard F. Jones, William George Prahl, Deputy Attys. Gen., Sacramento, Cal., for respondent-appellant.

vide it.

.

Finally, plaintiffs claim that federal law should control the propriety of endorsements on government checks. Although federal law governs the rights and duties of the United States concerning its commercial paper, see, e.g.,

, in disputes between private parties state law should govern absent a Congressional pronouncement or a more direct impact on the United States than present in this case.
(rule on liability of a converter as between private parties has impact too speculative to justify application of federal law). Although the states may well have less interest than the United States in regulating the proper endorsement of government checks, it is for Congress, not this court, to create a private right of action to assist the Treasury in policing the banks.

Affirmed.

In this matter, petitioner Booker T. Hillery, Jr., successfully challenged the constitutionality of his 1962 Kings County Superior Court judgment of conviction and sentence for the stabbing murder of a fifteen-year-old girl, in violation of California Penal Code § 187, by applying for a writ of habeas corpus in the District Court. The District Court granted the writ upon concluding that petitioner‘s conviction resulted from a denial of equal protection because black persons had been systematically excluded from selection to the Kings County grand jury for the years preceding his 1962 indictment.

We affirm upon the basis and for the reasons set forth in the excellent and extensive District Court opinion granting the application.

. See also
(denial of government‘s motion to dismiss for failure to exhaust);
(denial of government‘s motion to dismiss for prejudicial delay).

The judgment of the United States District Court granting petitioner‘s application for writ of habeas corpus is AFFIRMED.

The matter is REMANDED to the District Court for issuance of the writ and other appropriate order.

The state may seek to recharge and try petitioner again by the procedure which conforms to constitutional requirements.

J. BLAINE ANDERSON, Circuit Judge, dissenting:

I respectfully dissent from the court‘s order affirming the district court.

In my view, petitioner has failed to exhaust his state remedies as required by 28 U.S.C. § 2254(b),

, and
. The testimony of an expert “forensic actuary” presenting a new theory of statistical analysis is, in spite of the characterization by petitioner, new evidence that has not been presented to the state courts. This “new method” is new evidence supporting a new theory.

Nor do I agree that the affidavits of three witnesses establishing the competency of black persons to serve as grand jurors are properly characterized as “cumulative.” The same may be said of the new census material.

Although petitioner‘s basic claim has remained the same, the evidentiary basis for that claim changed significantly in the present habeas corpus proceeding from that presented to the state courts years ago.

We should vacate the district court‘s order with instructions to dismiss the petition without prejudice.

Notes

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