Granton Stanwood McHENRY, Appellee, v. PEOPLE OF the STATE OF CALIFORNIA, Appellant, 447 F.2d 470

PER CURIAM: McHenry is a California state prisoner. On October 10, 1960, he was convicted on a charge of having violated

section 261, subd. 1 of California’s Penal Code (statutory rape). He was released on parole on April 25, 1963, and subsequently, on January 28, 1965, was convicted for having violated

section 12021 of California’s Penal Code (possession of a concealed weapon by a person “who has been convicted of a felony”). Because of this later conviction, his parole was revoked by the California authorities, and his term of imprisonment on the 1960 offense was refixed at the maximum. After exhausting his state remedies, McHenry filed an application for habeas relief in the District Court. His petition was denied, and he appealed to this court. Pursuant to that appeal, the cause was remanded so that the District Court might conduct an evidentiary hearing on the allegations made by McHenry in his petition.

McHenry v. Wilson, 403 F.2d 711 (9th Cir. 1968). The District Court appointed counsel to represent McHenry, conducted the required evidentiary hearing, and thereupon determined that the 1960 conviction was invalid. This determination was based upon the court’s conclusion that certain rights guaranteed to McHenry under the federal constitution had been infringed to such an extent that the 1960 conviction was fatally corrupt. The court thereupon granted McHenry’s •petition for habeas relief and ordered his full release from California custody.

The State appeals, urging that the District Court erred (1) “in ordering appel-lee’s discharge because he is validly in custody under a conviction which was not affected by the court’s voiding of his conviction for statutory rape” and (2) “in failing to afford the State of California a reasonable opportunity to retry appellee for the crime of statutory rape.” We reject the first contention upon the authority of Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), the decision of our own court in United States v.

Thoresen, 428 F.2d 654 (9th Cir. 1970), and the Second Circuit’s opinion in United States v. DuShane, 435 F.2d 187 (2d Cir. 1970). In reaching this conclusion, we have not overlooked our decision in United States v. Liles, 432 F.2d 18 (9th Cir. 1970). The majority believes that Liles is clearly distinguishable, for there, as was not true in Thoresen and in the present ease, the prior conviction was held invalid, not on any federal constitutional ground but because the evidence was insufficient. See United States v. Duke, 423 F.2d 387 (5th Cir. 1970).

Consequently, the precise question presented in Liles was only whether it was the intention of Congress, in enacting 18 U.S. C. App. §§ 1201-1203, a portion of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, to make it an offense for one under a prior conviction for a felony to possess weapons, where, after such possession, the prior felony conviction was reversed because of insufficient evidence. Thus the Liles court could, and did, properly confine its discussion to the intention of Congress in enacting the Omnibus Crime Control and Safe Streets Act of 1968.

The second point made by the State is well taken. We think the appropriate California authorities should be allowed a reasonable period of time within which to retry McHenry on the alleged 1960 offense, should they wish to do so. We also believe that a period of sixty days from the date of the issuance of this court’s judgment should be a sufficient time within which any such retrial should be commenced. If California should decide not to begin any such retrial, or if McHenry is acquitted in such retrial begun within that period, then the District Court’s Order shall thereupon become final and fully effective.

If McHenry is again convicted of the alleged 1960 offense in a trial commenced within the specified time, and such fact is thereupon brought to the attention of the District Court, the District Court will vacate the Order from which this appeal is taken and reconsider the validity of McHenry’s claim for habeas relief. Remanded, with directions.