Paul J. Madigan, Warden, United States Penitentiary, Alcatraz, California v. Selvie W. Wells

This is an appeal from an order entered by the United States District Court for the Northern District of California, Southern Division, two judges acting, granting Wells’ application for a writ of habeas corpus and ordering Wells discharged from custody.

After a plea of guilty, Wells, in 1938, was sentenced to prison by the United States District Court for the Western District of Texas. So far as we are concerned, appellee was sentenced upon pleas of guilty to the third count of an indictment charging robbery of a bank and putting the life of a person in jeopardy by the use of a dangerous weapon (in the commission of the robbery) and to the fourth count charging entering the bank with intent to commit a felony, to wit, the robbery. The sentences were fixed to run consecutively. Wells has served his time except for the sentence imposed on his plea of guilty to count four. He contends that this sentence is void as the offense charged in count four merged into the one charged in count three.

Wells had previously moved for relief pursuant to 28 U.S.C. § 2255 and been denied. Wells v. United States, 5 Cir., 210 F.2d 112 . There is no allegation in Wells’ petition that the remedy by…