In re Costello, Misc. No. 752.
| Decision Date | 24 June 1958 |
| Docket Number | Misc. No. 752. |
| Citation | 262 F.2d 214 |
| Parties | In the Matter of Richard G. COSTELLO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Richard G. Costello, petitioner, in pro. per.
No appearance for State of California.
Before STEPHENS, Chief Judge, and HEALY and ORR, Circuit Judges.
Costello is a state prisoner who seeks to prosecute his appeal in a habeas corpus proceeding in forma pauperis. Judge Yankwich refused to grant the certificate of probable cause and privilege of prosecuting the appeal in forma pauperis, stating that the appeal was without merit.
The question sought to be presented in the appeal concerns the validity of action taken under California law dealing with the redetermination of sentence under the indeterminate sentence statutes. Petitioner was originally sentenced to a term of from one to fourteen years, and the Adult Authority later set his term at six years. Before serving the six years, petitioner was released on parole. He then violated his parole, was recommitted; and the Adult Authority fixed his term at fourteen years. He contends that his term was set at six years and cannot be changed later.
This matter was heard in the state courts, and certiorari was denied by the Supreme Court of the United States. Judge Yankwich felt that the matter was amply settled and denied habeas corpus. There is no real need of having the entire record here before us, as indicated in Farley v. United States, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529, for there is only a question of law involved, that is, the validity of California statutes.
The redetermination statute, West's Ann.Penal Code § 3020, was held valid recently in In re Larsen, 44 Cal.2d 642, 283 P.2d 1043, appeal dismissed Larsen v. People of State of Cal., 350 U.S. 928, 76 S.Ct. 312, 100 L.Ed. 811. Similarly, the California courts have held that when a prisoner receives an indeterminate sentence, that it is, in effect, a sentence for the maximum term and that the setting of the term at something less than the maximum by the Adult Authority is only tentative, and may be changed, that is, increased. Ex parte Smith, 33 Cal.2d 797, 205 P.2d 662.
In a case similar to the present one, In re Cowen, 27 Cal.2d 637, 166 P.2d 279, the action of the Adult Authority was upheld. There for parole violation, the maximum sentence authorized by law was reinstated. This question would not seem to involve a federal question, but rather one of purely local nature: the...
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Arketa v. Wilson, 21096.
...1, 5; In re Larsen, 1955, 44 Cal.2d 642, 645, 283 P.2d 1043, 1044. This is a discretion with which we do not interfere. In re Costello, 9 Cir., 1958, 262 F.2d 214, 215. 3 King v. State of California, 9 Cir., 1966, 356 F.2d 950; Collins v. Klinger, 9 Cir., 1965, 353 F.2d 731; Wells v. People......
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...of state law, not within the competence of a federal habeas corpus court. See Seward v. Heinze, 262 F.2d 42 (9thCir.1958); In re Costello, 262 F.2d 214 (9thCir.1958).2 There is substantial authority for the position that due process requires reasonable diligence in the issuance and executio......
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Patel v. Immigration and Naturalization Service, 75-2108
...the maximum authorized by the statute under which he was convicted. Cal.Pen.Code §§ 18, 496, subd. 1 (West 1970); see In re Costello, 262 F.2d 214 (9th Cir. 1958); People v. Brasley, (3) Execution of sentence was suspended, and Patel was placed on probation for three years. Oster v. Municip......
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Avent v. Peyton
...of state statutes and does not involve a constitutional question. Jones v. Ross, 257 F.Supp. 798, 801 (D.C.N.C.1966); In re Costello, 262 F. 2d 214 (9th Cir. 1958). Even if this were not so, the sentence is within the statutes of Virginia and was The issue of whether the petitioner should h......