Opinion
August 27, 1938.
Upon Petition for Leave to Appeal from the District Court of the United States for the Northern District of California, Northern Division; Harold Louderback, Judge.
Proceeding in the matter of the application of C.L. Hammond for a writ of habeas corpus. On petition for allowance of appeal to the United States Circuit Court of Appeals, and for certificate of probable cause.
Application for certificate of probable cause denied.
C.L. Hammond, in pro. per.
Petitioner having been denied his application for writ of habeas corpus by the United States District Court, applies for certificate of probable cause and the allowance of appeal therefrom.
Appellant is held under process of the state court for the crime of murder. He was sentenced to life imprisonment upon his plea of guilty. He complains that the statutory law of California requiring the court to determine the degree of guilt of defendant in such a case was not complied with. He applied for writ of habeas corpus to the District Court of Appeal for the Third District of California. That court held that the sentence was defective but not void and remanded the prisoner to the court in which he had pleaded guilty for determination of the degree of guilt and for sentence. Ex parte Hammond, Cal.App., 74 P.2d 308. He states that he appealed from this second sentence and that the judgment was affirmed by the District Court of Appeal for the Fourth District (People v. Hammond, 78 P.2d 1172) and that a hearing was denied by the Supreme Court of California. As I have stated in the Matter of the Application of George Melendez, 98 F.2d 791, the petitioner's remedy lies with the Supreme Court of the United States.
The application for certificate of probable cause is denied.