Daniel William ALESI, Petitioner-Appellee, v. Walter E. CRAVEN, Respondent-Appellant, 446 F.2d 742

EUGENE A. WRIGHT, Circuit Judge: This is an appeal on behalf of the State of California from a judgment of the district court which granted a petition for writ of habeas corpus. That court directed that petitioner-appellee be released unless within 60 days the state authorities shall have instituted proceedings to retry him on the charge that formed the basis for the conviction complained of. We affirm. Appellee was convicted in 1958 of possessing narcotics and the conviction was affirmed. People v. Alesi, 169 Cal.App.2d 758, 337 P.2d 838 (1959).

In 1969 he petitioned the district court for a writ of habeas corpus. An evidentiary hearing was held and the district court determined that petitioner’s constitutional rights were violated in a number of significant particulars.

In its findings of fact, the district court recited: “Viewing the matter as a whole, the Court finds that this is an exceptional case wherein the need for the remedy of habeas corpus to correct a miscarriage of justice, as measured by minimal constitutional standards, is clearly apparent. * * * “As hereinafter found, the court has determined that petitioner’s constitutional rights were violated in a number of significant particulars.

Without selecting any one or more as controlling, the court finds that petitioner was denied due process of law, contrary to the Fourteenth Amendment, and did not receive a full, fair and adequate hearing in the California criminal proceedings in violation of his constitutional rights.” In its specific findings, the court noted that appellee did not have adequate trial and appellate counsel, he was arrested without a warrant only on suspicion after information was supplied by an unidentified informant whose name and reliability were not established, and that jailhouse informants’ hearsay statements were used as substantive evidence against him.

The district court made special mention of an incident in the booking room of the county jail. A rubber container of heroin was extracted from appellee’s throat. The judge, after hearing the oral testimony of the police officers involved in the incident, found that their conduct seemed to “amount to conduct sufficient to ‘shock the conscience’ under the rule of Rochin v. California, 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed. 183] (1952).” After examining the record we cannot say that the findings were clearly erroneous. The judgment of the district court is affirmed.