Milliken v. McCauley

STEPHENS, Circuit Judge. Appellant is confined in the penitentiary of the State of Washington for a state offense, and appellee is the warden of such institution. Appellant filed a petition in the United States District Court of Washington, Southern Division, directed to said warden, claiming that he was, and is, illegally imprisoned by reason of' an ex post facto application of a state statute. The court required the warden to show cause why the writ should not issue and thereafter rendered an opinion upon the merits, but also concluded the opinion with the holding that the facts did not bring the matter within 28 U.S.C.A. § 453, and that therefore the court was without jurisdiction. The court denied the issuance of the writ and petitioner appealed to this court. This short outline of the proceedings is given in order that our determination on the appeal may not be misunderstood. It appears from the record that there are numerous other inmates of the same institution who are vitally interested in the points made in appellant’s petition. Our ruling here is not intended to touch the merits of such points and should not be allowed to prejudice any other action appellant may be advised to take. The petition upon its face shows that no application for the writ had been made to a competent court of the State of Washington and no good cause is shown why this had not been done. Hall v. People of State of California, 9 Cir. 1935, 79 F.2d 132; McCauley v. Palmer, 9 Cir., 1937, 91 F.2d 1017. The order denying the writ is affirmed.