Davis v. Humphrey

FOLLMER, District Judge.

Petitioner filed his application for writ of habeas corpus. He alleges that he was sentenced to a term of four years by the United States District Court for the Southern District of California, Southern Division, on January 29, 1945, under 18 U. S.C.A. § 76¹ on Counts Two, Four, Six and Eight of an indictment found against him in that District. No copy of the Indictment is attached to his petition. His contention is that he should have been sentenced under 18 U.S.C.A. § 76b,² and that the possible maximum on the four counts under said section is $1,000. or two years, or both.

A rule to show cause issued and Respondent thereupon moved that this Court refuse to entertain the application pursuant to the provisions of Section 2255 of the new Federal Judicial Code, 28 U.S.C.A. § 2255.

Upon consideration thereof, 1 am of the opinion that this is clearly a case predicated upon an allegation that the sentence imposed was not authorized by law, and that a motion to the court which imposed the sentence is both adequate and effective to test the legality of his detention. All of the data, information and records pertinent to the question involved, are in that court.

The Rule to Show Cause is hereby vacated and a writ of habeas corpus is accordingly refused.

1 In 1948 Revision, 18 U.S.C.A. § 912.

2 In 1948 Revision, 18 U.S.C.A. § 701.