Michael D. Poulin v. J. B. Gunn, Warden

589 F.2d 1024

Michael D. POULIN, Petitioner-Appellant,
v.
J. B. GUNN, Warden, Respondent-Appellee.

No. 76-2012.

United States Court of Appeals,
Ninth Circuit.

June 22, 1978.
Rehearing Denied July 12, 1978.

Michael D. Poulin, pro se.

Peter R. Silten, Deputy Atty. Gen., San Francisco, Cal., for respondent-appellee.

Before CHAMBERS and CHOY, Circuit Judges, and BELLONI,* District Judge.

PER CURIAM:

1

Our decision in this matter, which is published in 548 F.2d 1379 (9th Cir. 1977), was reversed by the United States Supreme Court in Gunn v. Poulin, 434 U.S. 936, 98 S. Ct. 424, 54 L. Ed. 2d 295 (1977) and the cause remanded to us for further consideration in light of Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), which was decided subsequent to our decision herein.

2

In Estelle v. McDonald, 433 U.S. 904, 97 S. Ct. 2967, 53 L. Ed. 2d 1088 (1977), vacating and remanding for reconsideration, 536 F.2d 667, 671 (5th Cir. 1976), the Supreme Court made Wainwright v. Sykes retroactive.

3

The facts in the instant case are set forth in our opinion, Poulin v. Gunn, supra. Having further considered the case in the light of Wainwright, we reverse and remand to the district court with the direction that the court reopen the case for the limited purpose of determining whether the cause and prejudice test laid down in Wainwright can be met by Poulin. Poulin's other contentions lack merit.

4

VACATED and REMANDED.

*

Honorable Robert C. Belloni, United States District Judge, for the District of Oregon, sitting by designation