Ex parte Melendez

This is an application for leave to appeal from an order denying writ of habeas corpus and for a certificate of probable cause essential thereto in the case of a conviction under a state law.

Petitioner claims that the provisions of law ('§ 1168 of the Penal Code of California, as. amended in 1931, St.1931, p. 1053) are invalid as to him because ex post facto.

The crime of which he was convicted was committed September 18, 1928. The conviction was January 7, 1929, and the sentence the same date. He was delivered to the warden of the penitentiary on January 12, 1929. On May 12, 1932 the State Board of Prison Directors fixed his sentence at 12 years, the sentence of the Court having been for the term provided by law. On September 13, 1935 the order fixing the term of petitioner at 12 years was revoked and his credits for good conduct were declared forfeited and the term fixed for 25 years. This latter order was avowedly under authority of the amendments of § 1168 of the- California Penal Code passed in 1931 after the petitioner’s offense was committed.

The petitioner contends that this latter order, although authorized by the terms of § 1168 of the Penal Code of California, was…