Chester Banks v. Paul J. Madigan, Warden, United States Penitentiary, Alcatraz, California

Petitioner is imprisoned pursuant to a judgment and sentence of the District Court for the Western District of Washington. He was charged and convicted on four counts of an indictment alleging violation of the narcotics laws and also pleaded guilty to a charge of two previous violations. Petitioner appeals from a dismissal of his petition for a writ of habeas corpus under 28 U.S.C.A. § 2255 . He alleges that the judgment pronounced from the bench ordered the sentences to run concurrently so that the maximum time he was to serve was ten years, and that he has now served ten years but is being held on the mistaken theory that two of the ten year sentences were to run consecutively.

Petitioner’s contention is that a variance exists between the oral judgment pronounced from the bench and the written judgment subsequently filed and that under such circumstances the judgment orally pronounced should control.

We quote in part from a transcript of the proceeding had at the time of the pronouncement of judgment:

The oral statements by the court from the bench that the corrected written judgment conformed to the judgment theretofore pronounced, read in their appropriate '• context,…