Unpublished Disposition, 846 F.2d 1383 (9th Cir. 1988)

MEMORANDUM^** 

Dennis Leon Thomas appeals pro se the dismissal with prejudice of his petition for habeas corpus. 28 U.S.C. § 2241 (1982). Thomas argues that he was denied the right to a valid grand jury indictment when, after three counts of the original indictment were dismissed, the district court failed to resubmit the amended indictment to the grand jury. We review the denial of habeas corpus de novo. Vermouth v. Corrothers, 827 F.2d 599, 601 (9th Cir. 1987).

Thomas contends that, under Ex parte Bain, 121 U.S. 1 (1887), any amendment to a grand jury indictment renders that indictment void. In United States v. Miller, 471 U.S. 130 (1985), however, the Supreme Court rejected the application of Bain where the amendment narrows the original indictment. Id. at 144. " [W]here an indictment charges several offenses, or the commission of one offense in several ways, the withdrawal from the jury's consideration of one offense or one alleged method of committing it does not constitute a forbidden amendment of the indictment." Id. at 145 (citing Salinger v. United States, 272 U.S. 542, 548-49 (1926)).

By dismissing three counts against Thomas, the amendment narrowed the scope of the original indictment. Accordingly, the district court correctly concluded that the amendment did not deprive Thomas of his right to be tried on charges returned in a grand jury indictment.

AFFIRMED.