322 F2d 788 Roseborough v. People of State of California

322 F.2d 788

James ROSEBOROUGH, Jr., Appellant,
v.
The PEOPLE OF the STATE OF CALIFORNIA, Appellee.

No. 18369.

United States Court of Appeals Ninth Circuit.

September 17, 1963.

Annette L. Rooz, San Francisco, Cal., for appellant.

Stanley Mosk, Atty. Gen. of California, Albert W. Harris, Jr., and Robert R. Granucci, Deputy Attys. Gen., San Francisco, Cal., for appellee.

Before MADDEN, Judge of the Court of Claims, and HAMLEY and BROWNING, Circuit Judges.

HAMLEY, Circuit Judge.

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1

James Roseborough, Jr., in custody pursuant to a judgment of a court of the State of California, appeals from an order denying his application for a writ of habeas corpus.

2

An application for a writ of habeas corpus is the assertion of a right against the person having the applicant in custody. Roseborough is in the custody of E. J. Oberhauser, Superintendent of the California Institution for Men, Chino, California. This official, however, was not named or served as a party in this proceeding, the sole respondent being The People of the State of California.

3

It follows that, assuming Roseborough is entitled to his release, the district court could not have entered a binding order granting such relief. See Bohm v. Alaska, 9 Cir., 320 F.2d 851.

4

For this reason alone, and without reaching any other question, the judgment is

5

Affirmed.