268 F2d 77 Silbaugh v. P G Smith

268 F.2d 77

John Frederick SILBAUGH, Appellant,
v.
P. G. SMITH, Warden, Federal Correctional Institution at
Terminal Island, San Pedro, California, Appellee.

No. 16324.

United States Court of Appeals Ninth Circuit.

June 3, 1959.

John Frederick Silbaugh, in pro. per.

Laughlin E. Waters, U.S. Atty., George W. Kell, Robert John Jensen, Asst. U.S. Attys., Los Angeles, Cal., for appellee.

Before STEPHENS, MARIS and BARNES, Circuit Judges.

PER CURIAM.

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1

This is an appeal from the discharge of a writ of habeas corpus. We have previously ruled on the merits of appellant's contentions in a companion case, Silbaugh v. United States, Misc. No. 822, February 13, 1959, when leave to appeal in forma pauperis was denied on the grounds that the appeal was frivolous. In this case, Silbaugh is using habeas corpus to test the validity of the denial of a motion made under Section 2255 of Title 28 U.S.C.A., which was not appealed. In such circumstances, the District Court lacked jurisdiction to issue the writ. Madigan v. Wells, 9 Cir., 224 F.2d 577, certiorari denied 351 U.S. 911, 76 S.Ct. 700, 100 L.Ed. 1446.

2

The appeal is dismissed, and the motion to consolidate it with the appeal in Silbaugh v. United States, is denied.