Opinion
Misc. No. 400.
December 23, 1954.
Chester Banks, in pro. per.
No appearance for respondent.
Before DENMAN, Chief Judge, HEALY, and ORR, Circuit Judges.
Banks was convicted of narcotics violations by the United States District Court for the Western District of Washington, Northern Division. No appeal was taken from this conviction. He filed a motion which was denied with that court pursuant to 28 U.S.C. § 2255.
He moves this court and also applies for a writ of habeas corpus to remove him from Alcatraz Penitentiary pending his appeal from the denial by the District Court of his motion to vacate sentence, claiming a right under Rule 38 of the Criminal Rules, 18 U.S.C.A., to be removed from the penitentiary pending appeal.
No appeal was taken from the judgment under which appellant was convicted; as indicated above, the only appeal was from the order denying a motion to vacate the sentence. Therefore, Rule 38 of the Criminal Rules providing for relief pending review has no application. His imprisonment was not premature. Taylor v. United States, 9 Cir., 179 F.2d 640. The motion and application are denied.