Before McLAUGHLIN, STALEY and GANEY, Circuit Judges.
This is an appeal from an order of the United States District Court for the Middle District of Pennsylvania denying appellant's petition for writ of habeas corpus in which he claims that his present imprisonment, being served pursuant to a sentence imposed upon him by the United States District Court for the Northern District of California, "constitutes cruel and unusual punishment, being greater than and extending beyond the statutory maximum penalty provided by law."
Appellant was indicted for having transported in interstate commerce a stolen motor vehicle in violation of 18 U.S.C.A. § 2312*fn1 On October 6, he, without counsel, appeared in the United States District Court for the Northern District of California, the district where he was indicted. After having been advised of his right to counsel, he waived that right and pleaded guilty to the charge in the indictment. The Judgment and Commitment made the same day, states in part:
"It is adjudged that the defendant is guilty as charged and convicted.
"It is adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for treatment and supervision pursuant to the provisions of Title 18 U.S.C., Section 5010(b), Youth Correction Act."*fn2
He did not seek an appeal from this sentence.
On October 12, 1958, he was committed to the El Reno Reformatory to commence service of his sentence. In April of 1960 he was transferred to the United States Penitentiary at Lewisburg, Pennsylvania. He was released conditionally on May 16, 1962, under the provisions of 18 U.S.C.A. § 5017(c), but was returned to custody on November 29, 1962, as a violator of the conditions of his release*fn3 While in custody at the penitentiary at Lewisburg, he filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania. That court denied the petition for the reason that his remedy was the filing of a motion in the sentencing court. On October 15, 1963, he filed, in the United States District Court of California at Sacramento, a motion to vacate the sentence and to grant him his immediate and unconditional release on the ground that he was being held in custody for a period in excess of the legal maximum provided in 18 U.S.C. § 2312. In part, his motion states:
"At the time of his sentencing on October 6, 1958, your petitioner was subject to a maximum sentence of five years. Under existing statutes and provisions, under which he should have been sentenced, your petitioner is entitled to 480 statutory 'good days', i.e., this time should have been deducted from his sentence, and he should have been called upon to serve a total of forty-four (44) months.
"At the present time he has served fifty-one (51) months in prison.This is seven (7) months in excess of the maximum provided by law. Therefore, your petitioner prays that this Honorable Body will vacate this sentence and release your petitioner unconditionally from custody with no additional supervision by the U.S. Government."
On November 1, 1963, the court granted his motion to vacate its sentence of October 6, 1958, and, on November 18, he being present with court-appointed counsel, the court resentenced him to imprisonment for a period of four years. Three days later he was recommitted to the United States Penitentiary at Lewisburg to commence service of the four-year sentence.
On December 6, 1963, he filed a second petition for a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania. On the same day that court denied his petition for the reason that it presented "nothing more than an attack on the validity of the new sentence, as to which his remedy in the sentencing court is adequate."
On December 23, 1963, he filed in the sentencing court a paper entitled "Notice of Appeal" from the action of that court to the United States Court of Appeals for the Ninth Circuit.By letter dated January 13, 1964, he inquired of the Clerk of the Court of Appeals of the Ninth Circuit when his appeal would be heard.
On January 16, 1964, he filed in the United States District Court for the Middle District of Pennsylvania a notice of appeal accompanied by a request to proceed ...