CAVAN AH, District Judge.
The petitioner by writ of habeas corpus seeks his release by testing the validity of his sentence and confinement in the state penitentiary of the state of Washington upon a charge of forgery in the first degree, after his plea of guilty in the state superior court.
His application for the writ alleges that about the 18th day of June, 1935, in the state superior court he was found guilty of the alleged act of forgery in the first degree, and subsequently committed, by the court, to the state penitentiary for a term of not to exceed 20 years; that at the time of the entering of his plea in the superior court he was represented by Frank S. Bailey, an attorney, who entered into an agreement with the deputy prosecuting attorney that if the petitioner would plead guilty he would not. receive over 1-year sentence in the state penitentiary, and that the prosecutor was to ask the court for not over a 1-year sentence; that the prosecutor was to recommend to the Parole Board that period of sentence; that at the time the plea was entered the court inquired of the prosecutor if such agreement was made, and no reply was made thereto; that the petitioner was given to understand that he would be sentenced under the old law, and not the new law, as he was arrested on May 17, 1935, and whatever crime he committed was committed under the law that was in force prior to June 12, 1935; that the statement made by the prosecutor and the judge of the superior court on August 6, 1935, did not contain any recommendation other than the recommendation of the judge of a 2-year sentence. The allegation is further made that the prosecutor had a fixed jury in the courtroom to try the petitioner if he refused to plead guilty; that the petitioner was on the 26th day of June, [72]*721935, transferred from the Kings county-jail to the state penitentiary, and on the 13th day of September, 1935, he was called before' the Board of Prison Terms and Paroles when he gave testimony as to his case, and about the 20th of September, 1936, he received a statement from the Board sentencing him to a term-of 3 years;' that on the 16th day of April, 1936, the petition of the petitioner for writ of habeas corpus was denied by the Supreme Court of the state of Washington. Further, he alleges in his petition that he was sentenced under a law that did not exist when he was arrested and charged with forgery, on the 17th day of May, 1935, and that the law he was sentenced under was not a law until the 12th day of June 1935; that the Board of Prison Terms and Paroles has no jurisdiction in his case, as the members of the Board had never been confirmed by the state Legislature giving them power by which to sentence a felon. Further allegation is made that the sentence given him of 3 years by the Prison Board of Terms and Paroles is not a maximum or a minimum sentence, but a flat sentence of 3 years, and not a minimum that the Board is supposed to give, and that the 3-year sentence he received by the Board is illegal. Further allegation is made that the petitioner was sentenced by some one other than the court who had jurisdiction over his case. The contention is made in his petition that petitioner’s liberty has been put in jeopardy twice for the same crime, as he was taken in the superior court of the state of Washington and prosecuted for forgery and found guilty and only half sentenced by the court who had power to sentence him, and then he was taken before the Board of Prison Terms and Paroles and sentenced again for the same crime, and the second time his liberty was jeopardized, in violation of the Federal Constitution.
The questions raised are whether the petitioner is unlawfully deprived of his liberty by reason, first, of the manner in which the sentence was pronounced and the power of the Prison Board of Terms and Paroles of the state to fix the duration of the term of his confinement in the state penitentiary after the court had pronounced the maximum sentence; and second, whether the amended law of the state of Washington conferring power on the Board of Prison Terms and Paroles to fix the duration of the term is an ex post facto law in violation of both Federal and State Constitutions.
Ordinarily, the only questions which may be presented on an application for habeas corpus to obtain discharge from imprisonment after conviction are: Whether the court which imposed sentence had jurisdiction of the offense and of the defendant, and whether the sentence was authorized by law.
These questions must first be determined by the court from the petition before a writ is issued, and should it appear there-, from that the petitioner is not legally entitled to the writ, it should not be issued, and the application for it should be denied and the petition dismissed, section 453, 28 U.S.C.A.
We then turn first to the question of the validity of the sentence pronounced by the court of the maximum period of 20 years and the fixing of the duration of 3 years to be served of the maxim-m period of 20 years by the Board of Prison Terms and Paroles.
Petitioner asserts in his petition that the amended law of the state, approved March 20, 1935, and went into effect June 12, 1935, (Laws Wash. 1935, p. 308) provides that:
Section 1. “There is hereby created a board of prison, terms and paroles to administer the provisions of this act. The functions, powers, duties and limitations of this body and the qualifications and the tenure of office of its members will be as hereinafter set forth.”
Section 2. “When a person is convicted of any felony, except treason, murder in the first degree, carnal knowledge of a child under ten years, or of being an habitual criminal within the meaning of the statute which provides for life imprisonment for such habitual criminals, and a new trial is not granted, the court shall sentence such person to the penitentiary, or, if the law allows and the court sees fit to exercise such discretion, to the reformatory, and shall fix the maximum term of such person’s sentence only. The maximum term to be fixed by the court shall be the maximum provided by law for the crime of which such person was convicted, if the law provides for a maximum term; if the law does not provide a maximum, term for the crime for which such person was convicted, the Court shall fix such maximum term, which may be for any number of years up to and including life impris[73]*73onment, provided however, that in any case where such maximum term is fixed by the court the maximtxm shall be fixed at not less than twenty (20) years. If the sentence of a person so convicted is not sxxspended by the court, it is hereby made the duty of the superintendent of the penitentiary and the superintendent of the refonnatory to receive such a person, if committed to his respective institution and to imprison him or her until released under the provisions of this act or through the action of the governor.
“After the admission of such convicted person to the penitentiary or reformatory, as the case may be, it shall be the dxxty of the board of prison, terms and paroles to obtain from the sentencing judge and the prosecuting attorney, a statement of all the facts concerning such convicted person’s crime and any other information of which they may be possessed relative to such convicted person, and it shall be the duty of the sentencing judge and the prosecuting attorney to furnish the board of prison, terms and paroles with such information.
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CAVAN AH, District Judge.
The petitioner by writ of habeas corpus seeks his release by testing the validity of his sentence and confinement in the state penitentiary of the state of Washington upon a charge of forgery in the first degree, after his plea of guilty in the state superior court.
His application for the writ alleges that about the 18th day of June, 1935, in the state superior court he was found guilty of the alleged act of forgery in the first degree, and subsequently committed, by the court, to the state penitentiary for a term of not to exceed 20 years; that at the time of the entering of his plea in the superior court he was represented by Frank S. Bailey, an attorney, who entered into an agreement with the deputy prosecuting attorney that if the petitioner would plead guilty he would not. receive over 1-year sentence in the state penitentiary, and that the prosecutor was to ask the court for not over a 1-year sentence; that the prosecutor was to recommend to the Parole Board that period of sentence; that at the time the plea was entered the court inquired of the prosecutor if such agreement was made, and no reply was made thereto; that the petitioner was given to understand that he would be sentenced under the old law, and not the new law, as he was arrested on May 17, 1935, and whatever crime he committed was committed under the law that was in force prior to June 12, 1935; that the statement made by the prosecutor and the judge of the superior court on August 6, 1935, did not contain any recommendation other than the recommendation of the judge of a 2-year sentence. The allegation is further made that the prosecutor had a fixed jury in the courtroom to try the petitioner if he refused to plead guilty; that the petitioner was on the 26th day of June, [72]*721935, transferred from the Kings county-jail to the state penitentiary, and on the 13th day of September, 1935, he was called before' the Board of Prison Terms and Paroles when he gave testimony as to his case, and about the 20th of September, 1936, he received a statement from the Board sentencing him to a term-of 3 years;' that on the 16th day of April, 1936, the petition of the petitioner for writ of habeas corpus was denied by the Supreme Court of the state of Washington. Further, he alleges in his petition that he was sentenced under a law that did not exist when he was arrested and charged with forgery, on the 17th day of May, 1935, and that the law he was sentenced under was not a law until the 12th day of June 1935; that the Board of Prison Terms and Paroles has no jurisdiction in his case, as the members of the Board had never been confirmed by the state Legislature giving them power by which to sentence a felon. Further allegation is made that the sentence given him of 3 years by the Prison Board of Terms and Paroles is not a maximum or a minimum sentence, but a flat sentence of 3 years, and not a minimum that the Board is supposed to give, and that the 3-year sentence he received by the Board is illegal. Further allegation is made that the petitioner was sentenced by some one other than the court who had jurisdiction over his case. The contention is made in his petition that petitioner’s liberty has been put in jeopardy twice for the same crime, as he was taken in the superior court of the state of Washington and prosecuted for forgery and found guilty and only half sentenced by the court who had power to sentence him, and then he was taken before the Board of Prison Terms and Paroles and sentenced again for the same crime, and the second time his liberty was jeopardized, in violation of the Federal Constitution.
The questions raised are whether the petitioner is unlawfully deprived of his liberty by reason, first, of the manner in which the sentence was pronounced and the power of the Prison Board of Terms and Paroles of the state to fix the duration of the term of his confinement in the state penitentiary after the court had pronounced the maximum sentence; and second, whether the amended law of the state of Washington conferring power on the Board of Prison Terms and Paroles to fix the duration of the term is an ex post facto law in violation of both Federal and State Constitutions.
Ordinarily, the only questions which may be presented on an application for habeas corpus to obtain discharge from imprisonment after conviction are: Whether the court which imposed sentence had jurisdiction of the offense and of the defendant, and whether the sentence was authorized by law.
These questions must first be determined by the court from the petition before a writ is issued, and should it appear there-, from that the petitioner is not legally entitled to the writ, it should not be issued, and the application for it should be denied and the petition dismissed, section 453, 28 U.S.C.A.
We then turn first to the question of the validity of the sentence pronounced by the court of the maximum period of 20 years and the fixing of the duration of 3 years to be served of the maxim-m period of 20 years by the Board of Prison Terms and Paroles.
Petitioner asserts in his petition that the amended law of the state, approved March 20, 1935, and went into effect June 12, 1935, (Laws Wash. 1935, p. 308) provides that:
Section 1. “There is hereby created a board of prison, terms and paroles to administer the provisions of this act. The functions, powers, duties and limitations of this body and the qualifications and the tenure of office of its members will be as hereinafter set forth.”
Section 2. “When a person is convicted of any felony, except treason, murder in the first degree, carnal knowledge of a child under ten years, or of being an habitual criminal within the meaning of the statute which provides for life imprisonment for such habitual criminals, and a new trial is not granted, the court shall sentence such person to the penitentiary, or, if the law allows and the court sees fit to exercise such discretion, to the reformatory, and shall fix the maximum term of such person’s sentence only. The maximum term to be fixed by the court shall be the maximum provided by law for the crime of which such person was convicted, if the law provides for a maximum term; if the law does not provide a maximum, term for the crime for which such person was convicted, the Court shall fix such maximum term, which may be for any number of years up to and including life impris[73]*73onment, provided however, that in any case where such maximum term is fixed by the court the maximtxm shall be fixed at not less than twenty (20) years. If the sentence of a person so convicted is not sxxspended by the court, it is hereby made the duty of the superintendent of the penitentiary and the superintendent of the refonnatory to receive such a person, if committed to his respective institution and to imprison him or her until released under the provisions of this act or through the action of the governor.
“After the admission of such convicted person to the penitentiary or reformatory, as the case may be, it shall be the dxxty of the board of prison, terms and paroles to obtain from the sentencing judge and the prosecuting attorney, a statement of all the facts concerning such convicted person’s crime and any other information of which they may be possessed relative to such convicted person, and it shall be the duty of the sentencing judge and the prosecuting attorney to furnish the board of prison, terms and paroles with such information. It will also be the duty of the sentencing jxxdge and the prosecuting attorney to indicate to the board of prison, terms and paroles, for its guidance, what, in their judgment, should be the duration of such convicted person’s imprisonment.
“Within six (6) months after the admission of such convicted person to the penitentiary or the reformatory, as the case may be, the board of prison, terms and paroles shall fix the duration of his or her confinement. The term of imprisonment so fixed shall not exceed the maximum provided by law for the offense for which he or she was convicted or the maximum fixed by the coxxrt, where the law does not provide a maximum term” — is invalid as it is an attempt to transfer judicial power from the court to the Board which the Legislature had no power to do, and therefore the dxxration of his confinement in the penitentiary of 3 years fixed by the Board is illegal.
At the time of the sentence pronounced by the court, of 20 years, the punishment for first degree forgery prescribed by the statute of Washington was “not more than twenty years” (section 2583, volume 4 Remington Revised Statutes), so the sentence pronounced by the court for the maximxxm of 20 years seems to be within that statute, even if the Act of March 20, 1935, and the duration of petitioner’s confinement of 3 years fixed by the Board are invalid. Therefore, • his confinement cannot be said to be illegal becaxxse the present Board has under the amended statute redxxced the sentence pronounced by' the court to 3 years; his sentence of 20 years pronounced by the court under said section 2583 would be legal and legally pronounced by a court of competent jurisdiction, although the amended statute referred to be invalid. It therefore would seen to be ixnnecessary to consider and dispose of the contention made by the petitioner that the duration of his confinement of 3 years fixed by the Board and within the maximum of 20 years pronounced by the court is unauthorized, because it is an attempt to confer upon the Board the exercise of judicial functions the power of which is only vested in the court.
It is settled that the state has the power to prescribe the procedure and the manner of trials and sentences of one charged with the commission of a crime, and if an opportunity is given, in felony cases, to a trial before a jury and to be represented by counsel, and the coxxrt has jurisdiction of the cause and of the person accused, and has pronounced its sentence, that would be a compliance with the due process clause of the Constitution, although the state may have by a statute provided that after the court had pronoxxnced a maximum sentence a Board may fix or reduce the maximum sentence, because the state has such power to adopt such procedure if its Legislature so decides.
As to the contention that the amended act of March 20, 1935, attempts to punish for an alleged crime committed prior to its adoption, it is sufficient to say that to bring it under the ex post facto clause of the Federal and State Constitutions (Const.U.S. art. 1, § 10; Const. Wash, art. 1, § 23) it must appear to be one which imposes punishment for an act which was not punishable when it was committed, or imposes additional punishment, or alters the situation of the accused to his disadvantage. Malloy v. State of South Carolina, 237 U.S. 180, 35 S.Ct. 507, 59 L.Ed. 905. It will thus be seen that the amended act does not change or inflict a greater punishment than the law in force when the alleged crime was committed, for the court could, under the law in force at the time the alleged crime was committed, pro[74]*74nounce a sentence of a .maximum of 20 years. The present period of confinement has been by the Board reduced to 3 years, and the fact that the Legislature of the state has adopted the procedure, authorizing 'the Board within the maximum sentence fixed by the court to reduce the sentence, would not be a violation of the due process clause of the Federal and State Constitutions (Const.U.S.Amend. 14; Const.Wash. art. 1, § 3). This view was undoubtedly adopted by the Supreme Court of the state of Washington, as the petitioner alleges in his petition that his application for a writ of habeas corpus was denied.
As to the other alleged objections, as irregularities in the conduct of the prosecuting attorney at the hearing before .the state court, and all other irregularities occurring at the trial in the state court, they are matters for the state court to decide where they do not deprive the accused of a federal right.
As to the contention that petitioner has been put in jeopardy twice, there is no merit, as the court pronounced the sentence fixed by the statute, and the Board thereafter was given authority to reduce it upon a hearing.
In view of the reasons thus given, an order will be entered denying the writ and dismissing the petition.