Ex parte Cowen
| Decision Date | 14 July 1938 |
| Parties | Ex parte COWEN. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Earl S. Cowen, in pro per.
Petitioner asked for an allowance of appeal from an order denying his application for writ of habeas corpus. The petition does not set out nor disclose the petition for habeas corpus filed in the lower court. It contains an assignment of errors, eight in number. Apparently the petitioner claims that he is imprisoned in violation of Art. 1, Sec. 10, of the Federal Constitution, U.S.C.A.Const. art. 1, § 10, prohibiting ex post facto laws. He claims that by the amendment of Sec. 1168 of the California Penal Code, St. 1931, p. 1053, the punishment has been changed in violation of Art. 1, Sec. 10, of the Constitution, U.S.C.A.Const. art. 1, § 10. He does not disclose when the alleged offense was committed, although it may be inferred it was committed prior to 1929. The petition does not show the terms of the judgment, sentence or commitment, nor whether or not the prison authorities have refused him any rights which he would have had under the statute in force at the time the offense was committed. There is no showing that this question has been presented to the state court by the petitioner or that he has exhausted his remedy thereunder. Such a showing is essential where a petitioner who is held under a judgment of a state court seeks discharge by habeas corpus. Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; Phillips v. McCauley, 9 Cir., 92 F.2d 790; Hall v. People of State of California, 9 Cir., 79 F.2d 132. There is no probable cause for an appeal. 28 U.S.C.A. § 466.
Petition denied.
On Amended Petition.
Petitioner claims that by amendment of Sec. 1168 of the California Penal Code in 1931, St.1931, p. 1053, his punishment under conviction of certain crimes has been changed in violation of Art. 1, Sec. 10, of the Federal Constitution, U.S.C.A. Const. art. 1, § 10.
An appeal, and certificate of probable cause, was heretofore denied on the grounds, among others, that there was no showing that petitioner had exhausted his remedy in the state courts, and no showing that the prison authorities had refused him any rights which he would have had under the statute in force at the time the offense was committed.
In his amended petition he shows that he has applied to the state courts for writ of habeas corpus. He does not show, however, that he is denied any right under Sec. 1168, California Penal Code, in effect at the time these offenses were committed. Sec. 1168, Cal.P.C., in effect August 14, 1929, Stats.Cal., ch. 872, p. 1930, provided:
It appears from petitioner's amended petition, and exhibits attached thereto, that petitioner was convicted of the crimes of attempted robbery...
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