Wells

This is an appeal from a judgment, 99 F.Supp. 320 , granted on an order to show cause in a habeas corpus proceeding, as follows: “It Is Hereby Ordered, Adjudged and Decreed that the death sentence imposed upon petitioner Wesley Robert Wells is invalid un4er the Fourteenth Amendment to the Constitution of the United States, and the order imposing the' death sentence by the Superior Court of the State of California, in and for the County of Sacramento, is hereby vacated and declared null and void.”

A. The Warden contends that the district court was without jurisdiction to consider Wells’ application for the writ of habeas corpus because when the application was filed he had not presented by petition for habeas corpus to the California Superi- or Court his contention of the unconstitutionality of the statute under which- he was convicted. In this the Warden relies on- 28 U.S.C. § 2254 providing:

Ҥ 2254. State custody; remedies in State courts

The district court denied a motion to dismiss on this ground. It retained jurisdiction, stayed execution of . the state judgment in order to enable Wells to petition the Supreme Court for a writ of habeas corpus to pass on the question of…