ROBINSON
v.
JOHNSTON, Warden.
Circuit Court of Appeals, Ninth Circuit.
Fredrik S. Waiss, of San Francisco, Cal., for appellant.
Frank J. Hennessy, U. S. Atty., and Robert B. McMillan and A. J. Zirpoli, Asst. U. S. Attys., all of San Francisco, Cal., for appellee.
Before WILBUR, GARRECHT, DENMAN, MATHEWS, STEPHENS, and HEALY, Circuit Judges.
HEALY, Circuit Judge.
This court in an earlier opinion, Robinson v. Johnston, 118 F.2d 998, affirmed an order denying appellant's petition for a writ of habeas corpus. The Supreme Court granted certiorari, ordered the vacation of the judgment and remanded the case with leave "for further proceedings, including leave to petitioner to apply for a hearing before the court en banc." United States ex rel. Robinson v. Johnston, 62 S.Ct. 1301, 86 L.Ed. ___.
The court of its own motion ordered an en banc hearing and appointed counsel for the petitioner. The matter has now been submitted on briefs and oral argument of counsel for both parties.
The factual basis of the petition need not again be stated. The affirmance, one judge dissenting, was on the ground that the order of the Federal district court for Kentucky, made October 12, 1936, conclusively determined the question of petitioner's sanity at the time of his plea and of his then waiver of counsel. The court is now of opinion, in line with the views expressed by the judge originally dissenting, 118 F.2d 1001, that that order should be treated as tentative only, and as having been impliedly vacated by the later order permitting the withdrawal of the motion for a new trial and supporting papers on which the order was predicated. This view necessitates a reversal, since it is clear that the factual issues tendered by the petition require the issuance of the writ.
The order below is accordingly reversed and the case remanded with directions to issue the writ and proceed to a hearing and determination of the merits.
WILBUR, Circuit Judge (dissenting).
I dissent. I adhere to the view expressed in the earlier opinion referred to by my associates.
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