concurring:
I agree with all of Judge Norris’ opinion except that part which concludes that Arizona law would not permit Rodriguez to attack his transfer hearing after he pleaded guilty in adult court. It is true that in In re Maricopa County, Juvenile Action No. J-73355, 110 Ariz. 207, 516 P.2d 580 (1973), the Supreme Court of Arizona held that a juvenile would not be allowed to take a delayed appeal from a juvenile court’s transfer order after he had answered the charge in adult court. That ruling, however, dealt only with direct appeals from the transfer order, and it was obviously sensible to require those appeals to be brought promptly as a requirement of “the orderly administration of justice.” Id. at 208, 516 P.2d at 582.
Such a ruling does not necessarily preclude other methods of attack on the transfer proceedings, however. I conclude that Arizona would permit such attacks because its Supreme Court has twice done so. In State v. Jiminez, 109 Ariz. 305, 509 P.2d 198 (1973), the Court entertained an attack on juvenile transfer proceedings in an appeal after a plea of guilty in adult court. It found the transfer proceeding to have been defective, but affirmed on another ground. In State v. Thompson, 113 Ariz. 1, 545 P.2d 925 (1976) (en banc), the Court similarly entertained an attack on a transfer proceeding in an appeal from a conviction in adult court after a guilty plea. The Court found the attack insufficient on its merits. While it is true that in both of these cases the issue of waiver by plea of guilty was not discussed, I find it difficult to believe that the Supreme Court of Arizona would have entertained the attacks if a plea of guilty was a waiver.
My conclusion would normally lead me into several other issues, including: whether Rodriguez waived his right collaterally to attack his transfer proceedings when he failed to do so on direct appeal from his conviction in adult court; whether ineffective assistance of counsel was involved in the failure; and whether prejudice must be shown in connection with any failure of counsel. I need not address those and other issues, however, because there is another ground upon which the district court’s denial of the petition should be affirmed. It is the same ground upon which the Supreme Court of Arizona decided Jiminez, supra, namely, that there is now no appropriate relief available to Rodriguez.
After finding that Jiminez’ attack on the transfer proceedings had merit, the Supreme Court of Arizona held:
[T]he jurisdiction of the Juvenile Court ceases after an individual has reached his 18th birthday. In this case defendant Jiminez has attained this age, defendant *1255Killinger is within two months of doing so. Therefore to send them back for a due process hearing and the proper juvenile court order would be a futile gesture for the Juvenile Court would have lost jurisdiction.
Jiminez, 109 Ariz. at 307, 509 P.2d at 200. Exactly the same problem exists in this case, but it is far more acute. At the time of supplemental briefing on this appeal, Rodriguez was 31 years old. There is no way he can be given any further hearings in juvenile court, and it is clear that he is not now an appropriate subject for juvenile corrective or rehabilitative processes. The alternative of retrial in adult court is equally inappropriate, for we have held that there was no constitutional defect in his plea of guilty or his conviction thereon. See Harris v. Procunier, 498 F.2d 576, 580 (9th Cir.) (en banc) (concurring opinion of Browning, J.), cert. denied, 419 U.S. 970, 95 S.Ct. 235, 42 L.Ed.2d 186 (1974). Nor, in light of our holding, would it be at all appropriate simply to set Rodriguez free. I therefore concur in the district court’s denial of his petition for habeas corpus.