
    REMAS v. SQUIER, Warden.
    No. 640.
    District Court, W. D. Washington, S. D.
    July 27, 1944.
    Jack S. Remas, pro se.
    Guy A. B. Dovell, Asst. U. S. Atty., of Tacoma, Wash., for respondent.
   DENMAN, Circuit Judge.

Petitioner, a prisoner in the United States penitentiary at McNeil Island, Washington, seeks a writ of habeas corpus, claiming he was sentenced to imprisonment for some offense for a period of nine months. He attaches documents showing that he was convicted under the Motor Vehicle Theft Act, 18 U.S.C.A. § 408. That Act creates an offense punishable by imprisonment for a term of years in excess of one year, that is up to five years.

The Commitment Act as amended in 1941, 18 U.S.C.A. § 753f, provides “that any sentence of imprisonment for an offense punishable by imprisonment for a term of one year or less shall not be served in a penitentiary except with the defendant’s consent.”

Prior legislation such as R.S. § 5356, 18 U.S.C.A. § 466, had made the term of the sentence itself rather than the term for which the offender could be “punishable” under the statute creating the crime, the determination of power to imprison in a penitentiary.

Nevertheless the petitioner contends that because his sentence is for less than a year he may not be imprisoned in the McNeil Island penitentiary, even though the crime for which he was committed is “punishable” by a sentence of five years.

It appears that petitioner has not presented his petition either to District Judge Bowen or District Judge Black, both of the Western District of Washington in which McNeil Island is situated. Here the petition has been denied only by the District Court for the Western District of Washington. So far as it is one to be entertained and decided by me as a circuit judge, over 800 miles distant in San Francisco, California, the case does not come within In re Wright, D.C., 51 F.Supp. 639, where Wright’s petition had been successively denied by the available district judges of the United States District Court for the Northern District of California. Hence I decline to entertain it. Bowen v. Johnston, D.C., 51 F.Supp. 717, as amended, D.C., 55 F.Supp. 340.

The petitioner’s application for leave to sue in forma pauperis is granted.

Petition ordered denied without prejudice.  