Opinion
No. 24999.
September 9, 1971.
William Flenniken, Jr., of Manzella Flenniken, San Francisco, Cal., for appellant.
Richard K. Burke, U.S. Atty., Jo Ann D. Diamos, Asst. U.S. Atty., Tucson, Ariz., for appellee.
Before HAMLEY, MERRILL and KOELSCH, Circuit Judges.
On November 13, 1970, 432 F.2d 1356, we affirmed the United States District Court for the District of Arizona in its denial of relief under 28 U.S.C. § 2255 on the authority of United States v. Weber, 429 F.2d 148, decided by this court on July 9, 1970. Certiorari was granted by the United States Supreme Court in this case, 402 U.S. 939, 91 S.Ct. 1634, 29 L. Ed.2d 107, and also in Weber, 402 U.S. 939, 91 S.Ct. 1633, 29 L.Ed.2d 107, and in both cases the Supreme Court vacated judgment of this court and remanded for reconsideration in light of Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); and United States v. United States Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434, decided April 5, 1971. This court, in Weber, has remanded to the District Court and we agree that that course is proper.
Accordingly, it is ordered and adjudged that the judgment of the United States District Court for the District of Arizona be, and the same is hereby, vacated and the cause remanded to the District Court for the purpose of setting aside the plea of guilty and thereafter conducting such proceedings as may seem meet and proper in the premises.