Minntole v. Johnston

147 F.2d 944, 1945 U.S. App. LEXIS 2213

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 19, 1945
• Status: Published

Opinion

PER CURIAM.

Petitioner-appellant prays for leave to proceed on appeal in forma pauperis and for appointment by this court of counsel to assist in his appeal from a dismissal by the district court of his petition for writ of habeas corpus.

The petition for leave to appeal in forma pauperis (28 U.S.C.A. § 832) should have been made in the district court which denied- the writ of habeas corpus (Waley v. Johnston, 9 Cir., 110 F.2d 234); and petitioner does not show that such leave was asked in the court below.

Moreover, a proposed appeal record presented with the petition shows two concurrent sentences of fifteen years on counts for bank robbery under 12 U.S.C.A. § 588b (a) (b); also two concurrent sentences of twelve years on counts for bank robbery accompanied by kidnapping under 12 U.S.C.A. § 588c, which two twelve-year sentences were ordered to be consecutive to the two fifteen-year sentences. Execution of the twelve-year sentences was suspended with probation for five years to begin on release from imprisonment under the fifteen-year sentences. We have already held under the same statute that the fifteen-year sentences are valid notwithstanding a consecutive sentence for an aggravated degree of the same offense but for a shorter term. Coy v. Johnston, 9 Cir., 136 F.2d 818. Petitioner has not yet served the fiftceu-ycar sentences. By the petition to this court and from the proposed appeal record it appears that the district court rightly denied the writ of habeas corpus and that the proposed appeal would be without merit; also that leave to appeal in forma pauperis would have been denied by the district court.

Petition denied.