On Petition for Rehearing
Before HEALY, POPE and CHAMBERS, Circuit Judges.
*128PER CURIAM.Our decision in this case dealt with two petitions which the appellant filed in the court below, both of which were denied. We sustained his appeal from a denial of the petition dated March 15, 1957, in which appellant asserted the invalidity of his conviction of a criminal offense because he had been denied due process in the course of his trial. Proceeding under § 2255 of Title 28 U.S.C., appellant claimed in that proceeding that his conviction was void. At the same time and in the same opinion we rejected the appellant’s appeal from a denial of another petition which was referred to as the petition of June 25, 1956. We rejected that appeal on the authority of Williams v. United States. 9 Cir.. 236 F.2d 894, and other cases cited, saying that deeming that petition as having been filed under § 2255 we regarded it as not a proper remedy to afford the appellant the relief which he sought.
Upon this petition for rehearing appellant urges that we should have ordered a hearing in the court below upon this petition of June 25, 1956, in which appellant sought to have an adjudication that the sentence which was imposed upon him following his conviction should have been treated as one running concurrently with a sentence he was serving in a California penitentiary, and that its commencement should not be deemed to be delayed until after he had been released from the California prison.
Petitioner asserts that we improperly labeled this petition of June 25, 1956 as one filed pursuant to § 2255, and that we should have treated it as one seeking relief under the principle of United States V. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248, and that the appellant should have the relief sought in that petition because granting it would hasten the date when he would be entitled to consideration for a parole.
It is obvious that if the appellant is successful upon a further hearing in the court below in establishing his claims as stated in his petition of March 15, 1957, his other petition will become moot since the whole conviction would fall to the ground. We do not hold that petitioner may not under proper circumstances simultaneously sue for inconsistent relief as appellant has undertaken to do here, but it would appear to be a waste of judicial time to require the court below simultaneously to try the question whether the appellant’s conviction should be set aside in its entirety and whether on the hypothesis that it should not be set aside the sentence ought to be determined to be one running concurrently with a state court sentence. Nothing which we have heretofore decided can operate to prevent the appellant from having adjudicated at an appropriate time the question of when his sentence began or when he will be entitled to parole. For this reason we find no grounds for granting the petition for rehearing.
The petition for rehearing is denied.