# In Re Drake

> California Supreme Court · December 18, 1951 · 38 Cal. 2d 195

URL: https://www.frixlaw.com/law-library/cases/9552878

## Case

- **Full name:** In Re ROY DRAKE, on Habeas Corpus
- **Court:** California Supreme Court
- **Decided:** December 18, 1951
- **Citations:** 38 Cal. 2d 195; 238 P.2d 566; 1951 Cal. LEXIS 199
- **Precedential status:** Published
- **Opinion:** Concurring in part by Schauer
- **Judges:** Edmonds, Schauer
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9552878

## Opinion text

SCHAUER, Concurring and Dissenting.
I concur in the conclusion that the writ should be discharged. However, I dissent from the holding that the prisoner cannot in this proceeding question the correctness of the Adult Authority’s determination to grant parole “subject to Hold.” In my opinion petitioner at this time has the right to test the legality of the Adult Authority’s recognition of the Mississippi “hold order.” It is implicit in the action taken by the Authority that it accords validity and gives effect to such order; it has given consideration to that hold order in the action it has taken and it has refused to pass on petitioner’s application independently of such order. It is true that petitioner has no vested right to the grant of parole effective April 14, 1952, but he does have the right to have the action which the Authority has taken, or may take, based upon correct legal grounds; he has the right to have the Authority consider and act on his application for parole excluding from their consideration the Mississippi hold order if it is invalid as he contends and prima facie shows.
Habeas corpus is the proper remedy for a prisoner who seeks, not release, but a direction to the Authority that in fixing the prisoner’s term or considering his application for parole it should act under a correct view of the prisoner’s status and his rights thereunder. The situation is analogous to that of a prisoner who has been erroneously committed as an habitual criminal, or erroneously committed as an habitual criminal with three rather than two prior convictions. Such *199 a prisoner, on petitioning for habeas corpus, is entitled to an opinion correctly declaring his rights and “The proper course to pursue is for the constituted authority to refix the sentence of the petitioner in accordance with the declaration of his rights as stated in ... [such] opinion.” (In re Seeley (1946), 29 Cal.2d 294, 303 [ 176 P.2d 24 ].) Similarly, where there is a question of such a prisoner’s eligibility for parole, he is entitled to a declaration that “it is his right to have a request for parole considered and determined by the Adult Authority.” (In re Bramble (1947), 31 Cal.2d 43, 54 [ 187 P.2d 411 ].) Likewise, petitioner here should be able to obtain a declaration (if on the merits he is entitled to it) that the Authority consider his case and act on it without consideration of the “hold order,” which (it prima facie appears) is invalid because it was the result of coercion.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9552878. Public record. Not legal advice.