In Re Malone

SCHOTTKY, J. pro tem.

Edward Donald Malone, an inmate of Folsom State Prison, has filed in this court a petition for the issuance of a writ of habeas corpus, alleging that he is illegally restrained of his rights and liberty by the warden of said prison in that said warden refuses to allow him to forward for filing a Petition for a Writ of Quo Warranto addressed to this court, but instead has referred said petition to the Adult Authority of the State of California for a determination as to whether the petitioner’s civil rights should first be restored. The Adult Authority refused to restore petitioner’s civil rights and refused to allow him to forward his

[632]

so-called “Petition for a Writ of Quo Warranto” to the District Court of Appeal for filing.

Respondent has filed an answer and return to the order to show cause and a motion to dismiss said order to show cause. It appears from the record that petitioner was convicted after a jury trial in the Superior Court of the State of California, in and for the County of Stanislaus, of the crime of grand theft, a felony, on or about the 18th day of November, 1948, and sentenced to the state prison for the term prescribed by law. No appeal was taken from this judgment, but on June 15, 1949, he filed a petition for writ of error coram nobis in the Superior Court of the State of California, in and for the County of Stanislaus, which was denied. On appeal from the order denying this petition, this court on February 28, 1950, dismissed the appeal in the case of

People

v.

Malone

(96 Cal.App.2d 270 [215 P.2d 109]). On November 7, 1949, petitioner’s term of imprisonment was fixed by the Adult Authority at three years, the last 18 months on parole, subject to hold. On or about May 22, 1950, petitioner was paroled. Thereafter, on or about October 17, 1951, his parole was suspended and his term refixed at the maximum (10 years, Pen. Code, § 489). On January 15, 1952, after hearing, petitioner’s parole as well as his credits earned or to be earned were revoked by action of the Adult Authority. On January 31, 1952, the Adult Authority, pursuant to the provisions of section 5080 of the Penal Code, ordered the custody of petitioner transferred from the warden of Folsom State Prison to the superintendent of the California Medical Facility at Terminal Island, San Pedro, California. Petitioner was actually transferred to Terminal Island after his so-called “Petition for Writ of Quo Warranto” in and by which petition he sought to have the action of the Adult Authority in revoking his parole and returning him to prison declared void as being in excess of jurisdiction had been delivered to the warden and after his petition for a writ of habeas corpus was filed in this court.