Booth v. United States, 13253.

• Decision Date: 22 October 1952
• Docket Number: No. 13253.,13253.
• Citation: 198 F.2d 991
• Parties: BOOTH v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

198 F.2d 991 (1952)

BOOTH v. UNITED STATES.

No. 13253.

United States Court of Appeals Ninth Circuit.

August 21, 1952.

Rehearing Denied October 22, 1952.

Ernest Grandville Booth, pro. per.

Walter S. Binns, U. S. Atty., Clyde C. Downing, Asst. U. S. Atty., Chief of Civil Division, Max F. Deutz, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before DENMAN, Chief Judge, and STEPHENS and BONE, Circuit Judges.

DENMAN, Chief Judge.

Booth appeals from an order of the district court denying him his application for a writ of habeas corpus directed to Dr. Marion R. King, Superintendent of the California Medical Facility, a California State Institution at San Pedro, California. The application alleged that Booth was illegally held under two judgments of the United States District Court for the Southern District of California in which he pled guilty under the fraudulent representation of the prosecuting attorney.

Although it was not questioned and the district court in fact found that Booth was in the custody of the California state institution, that court issued an order to show cause to the United States Marshal. Upon this a hearing was had, findings of fact made and conclusions of law drawn upon which it held that the judgment of the United States District Court was validly rendered.

We think that the district court was without jurisdiction to issue the order to show cause against the United States Marshal, who, the court found, did not have Booth's custody. 28 U.S.C. 2243. The decision must be reversed as to the holding that the federal judgment was validly procured. However, we think the judgment denying the application must be sustained because it appears that Booth is not entitled thereto. 28 U.S.C. 2242.

Booth's application alleges that "On May 19th, 1947, your petitioner was sentenced in the California State Superior Court for two counts of robbery. On May 28th, 1947, the U. S. District Court for the Southern District of California, issued its Order directing the release from federal custody and jurisdiction into the custody jurisdiction of the State of California so petitioner could begin service of the State-imposed sentence. The Order was executed and approved by the U. S. District Attorney."

Booth raises no question as to the validity of the state sentence which he had begun to serve on May 28th, 1947.

While the application does not state that the state sentence has expired, it appears from the record brought here by Booth that it was for 10 years to life and he does not question the fact as stated in the brief of the appellee. That is to say, the Dr. King against whom Booth's application seeks the writ holds Booth's body under a valid judgment.

It is elementary that even when a judgment is void, "its operation may be stayed by habeas corpus only through the exercise of the authority of the court to remove the...