In Re Contreras

J.— Petitioner is confined in the California Correctional Institution, Tehachapi, under a judgment of conviction of violating Health and Safety Code section 11500 (now § 11350) (possession of heroin), entered uponhis plea of guilty in the San Diego Superior Court on Februaiy 28, 1972. On March 20, 1972, probation was denied and he was sentenced to state prison for the term prescribed by law; the term has been established at two to ten years, which is the appropriate term for a person convicted of violating Health and Safety Code section 11500 without any prior convictions.

Petitioner suffered two prior convictions under federal law which he alleges to be invalid and challenges (1) the designation of his status in the records of the Department of Corrections as a “third termer,” and (2) the alleged use of the two prior convictions in sentencing proceedings to deny him probation. Neither of the convictions was alleged as a prior in the information or proven at trial, but they were referred to in the probation report.

The Prior Convictions

Initially, we note that petitioner has failed to show that one of his prior federal convictions was reversed or set aside. With regard…