(concurring).

While I agree with my colleagues that the appellant’s motions should be denied, it is my opinion the order of the District Judge, dated June 6, 1955, denying the appellant’s motion for leave to file in forma pauperis and denying his petition for a writ of habeas corpus, should be affirmed for the paramount and overriding reason that the appellant has failed to exhaust his state remedies. I do not think that the main opinion makes it clear that its decision is based upon such failure as the controlling ground.

In my view, both the statute and the decisions of this court stress the principle that the exhaustion of state remedies is an indispensable condition precedent to our issuing the writ in a case of this kind.

A brief review of the record and of the applicable law may be helpful.

The petition for a writ of habeas corpus recites that “by action taken on April 6, 1955, by the Adult Authority of the State of California, petitioner’s term for (a) Santa Clara County offense was terminated. Thus, removing the obstacle to having his petition for a writ of habeas corpus directed at the judgment of conviction entered in the Superior Court of the County of Los Angeles, heard on its merits.”

Nowhere in his petition or in his brief before this Court does he allege that since he has begun serving his sentence for the Los Angeles County offense he has applied for a writ of habeas corpus in any state court.

In such a posture of the case, a Federal court is commanded to refuse the application for a writ of habeas corpus. Section 2254 of 28 U.S.C.A. reads as follows:

Not only is the foregoing language unmistakably and emphatically mandatory, but the appellant’s own brief clearly indicates the reason why he could not properly apply to any court for habeas corpus in connection with his Los Angeles County sentence. Attempting to answer the objection of the District Court “That three previous petitions had been denied” by it, the appellant asserts:

Furthermore, in 1955, the appellant filed a motion in this Court, seeking to dismiss his appeal from a judgment denying his application for a writ of habéas *734 corpus, the ground for his motion being “that the application was premature due to the fact that he was serving time for another judgment.” His motion was granted on April 25, 1955.

Both the Supreme Court of the United States and the Supreme Court of California have held that “A sentence which the prisoner has not begun to serve cannot be the cause of restraint which the statute makes the subject of inquiry.” McNally v. Hill, 1934, 293 U.S. 131, 138 , 55 S.Ct. 24, 27 , 79 L.Ed. 238 ; In re Rosencrantz, 1931, 211 Cal. 749, 752 , 297 P. 15 ; In re Drake, 1951, 38 Cal.2d 195, 198 , 238 P.2d 566 .

Since April 6, 1955, however, when the Santa Clara sentence was terminated, the appellant has been free, for the first time, to pursue his State remedies with reference to the Los Angeles County sentence. He agrees that an “obstacle” has been removed from his recourse to habeas corpus; but he misconceives the jurisdiction in which he should first seek his remedy. That jurisdiction is State instead of Federal.

So plain and emphatic is the language of Section 2254 that we need mention only one recent decision of this Court in which that statute’s mandate has been carried out. In Cruysen v. Scudder, 9 Cir., 1954, 215 F.2d 512, 513 , we said:

■ I agree that the District Court’s certificate of July 12, 1955, stating that the Court did “not believe the appeal presents a substantial question for decision, or that the appeal is taken in good faith,” was adequate.

• But I would base the judgment of the Court chiefly upon the ground that, having failed to exhaust his State remedies, the appellant cannot prevail in a suit seeking, a writ of habeas corpus in a Federal Court, in an effort to gain his freedom while serving a sentence of imprisonment imposed by a State court.

The order of June 6, 1955, should be affirmed.