James Edward Gibson, Appellant, v. Charles S. Dell, Acting Warden, et al., Appellees, 443 F.2d 75 (9th Cir. 1971)

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US Court of Appeals for the Ninth Circuit - 443 F.2d 75 (9th Cir. 1971) April 27, 1971

James Edward Gibson, in pro. per.

Robert L. Woodahl, Atty. Gen. of Mont., Charles C. Lovell, Special Asst. Atty. Gen., J. C. Weingartner, Robert P. Gannon, Ass't. Attys. Gen., Helena, Mont., for appellee.

Before CHAMBERS and DUNIWAY, Circuit Judges, and McNICHOLS, District Judge.

PER CURIAM:


The order denying issuance of a writ of habeas corpus is affirmed. Here no issue of facts was presented and no hearing was required.

Appellant is wrong when he asserts that the information under which he pleaded guilty did not state a crime.

His assertion of equal protection denial because a judge or jury can fix a crime as a felony or a misdemeanor depending on the sentence is without merit. See In Re Gutierrez, 82 Ariz. 21, 307 P.2d 914, cert. denied 355 U.S. 17, 78 S. Ct. 79, 2 L. Ed. 2d 23.

Olsen v. Delmore, 1956, 48 Wash. 2d 545, 295 P.2d 324, and State v. Pirkey, 1955, 203 Or. 697, 281 P.2d 698, cited by appellant are distinguishable for the reasons ably stated by the district judge in his order denying the writ.