Opinion
No. 8825.
November 7, 1938. Rehearing Denied December 2, 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 Ernest Verheul against James A. Johnston, Warden of United States Penitentiary, Alcatraz, California. From an order denying application for writ, applicant appeals.
Order affirmed.
Ernest Verheul, in pro. per.
Frank J. Hennessy, U.S. Atty., and R.B. McMillan and A.J. Zirpoli, Asst. U.S. Attys., all of San Francisco, Cal., for appellee.
Before WILBUR, DENMAN, and HEALY, Circuit Judges.
This is an appeal from an order denying appellant's application for writ of habeas corpus. Appellant was indicted for bank robbery committed January 5, 1935, and after plea of guilty was sentenced, on May 31, 1935, to a term of twenty-five years imprisonment. He contends that the indictment stated an offense under the Act of May 18, 1934, ch. 304, 48 Stat. 783, sec. 2(a), 12 U.S.C.A. § 588b, subd. (a), which fixes the maximum penalty at twenty years, and not under subdivision (b), id. sec. 2(b), 12 U.S.C.A. § 588b, subd. (b), which fixes the maximum penalty at twenty-five years. The sentence authorized by 12 U.S.C.A. § 588b, subdivision (a) (20 years) not having expired, the application is premature. Smith v. Johnston, 9 Cir., 83 F.2d 321; Hall v. Johnston, 9 Cir., 86 F.2d 820; Ex parte Melendez, 9 Cir., 98 F.2d 791.
Order affirmed.