Opinion
No. 8718.
March 12, 1938.
Appeal from the District Court of the United States for the Northern District of California, Southern Division; Adolphus F. St. Sure, Judge.
Habeas corpus proceeding by Taylor Seals against James A. Johnston, Warden, United States Penitentiary, Alcatraz Island, California. From an order denying the writ, petitioner appeals.
Affirmed.
Taylor Seals, in pro. per.
Frank J. Hennessy, U.S. Atty., and A.J. Zirpoli, Asst. U.S. Atty., both of San Francisco, Cal., for appellee.
Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.
This is an appeal from an order of the District Court denying to petitioner the issuance of the writ of habeas corpus.
The petitioner appears in propria persona and, owing to his lack of legal knowledge has drawn his petition in a manner that makes it extremely difficult to understand. We are able to learn from it, however, that he is confined in the Federal Prison at Alcatraz Island, California, by warrant of commitment issued out of the United States District Court for the Northern Division of the Eastern District of Tennessee. He claims that the committing court acted without jurisdiction as it acted out of term time, and that he is being subjected to double jeopardy or double punishment in that he was sentenced upon substantive and conspiracy charges arising out of practically the same set of facts. He also claims that the committing court was without jurisdiction to sentence him in that he had been imprisoned for a state offense after having been granted probation by the federal court.
There is no claim that the commitment to Alcatraz Prison is void upon its face, but he relies upon the contents of Exhibits A and B assertedly attached to and made a part of the petition for his factual representation. But there are no exhibits attached to the petition, or in the record at all.
Petitioner's application for the issuance of the writ is almost wholly a statement of conclusions and does not contain any statement or allegation of fact upon which the District Court could act.
Certain papers marked "Exhibit A" and "Exhibit B" have been informally handed the clerk of this court purporting to be copies of Tennessee grand jury and United States District Court records. These records have never been before the court from which this appeal comes. We cannot attach them to the petition and thereupon treat the petition as an original application.
Petitioner requested the District Court to issue its subpœna duces tecum commanding the clerk of the United States District Court in Tennessee to attend the United States District Court in California and bring applicable records with him. This the District Court declined to do and, we think rightly so, for the reason that the allegations of the petition were not sufficient to raise or define any issue of fact.
The clerk of this court will return to petitioner the documents informally presented to him.
It is a pleasure to commend the United States District Attorney for his eminently fair presentation of this appeal in the absence of petitioner, and for his assurance that no unnecessary technical obstacle will be allowed to prevent the presentation of a dependable record in court should petitioner be advised to pursue the matter further. Having ourselves informally gone over the documents which are to be returned to petitioner, we recommend that the United States District Attorney inform himself of their contents.
Affirmed.