Dunlap

This is an appeal from an order of the district court dismissing appellant Dunlap’s petition for a writ of habeas corpus. Appellant presented his case below in propria persona, and he has filed a brief here. He is without means to employ an attorney and has moved this court to cause appellee Swope, the Warden of the penitentiary in which he is confined, to bring him before us to argue his appeal.

The personal presence of a prisoner is not necessary to confer jurisdiction to consider his appeal, even were it from a judgment in a capital case. Schwab v. Berggren, 143 U.S. 442, 449 , 12 S.Ct. 525 , 36 L.Ed. 218 . Here, however, it is suggested that it is within the court’s discretion to determine whether he be brought before us to participate in the hearing or to appoint an attorney to represent him.

We do not find it necessary to consider the suggestion since the relief sought is clearly beyond our jurisdiction to grant through the process of habeas corpus. Appellant’s petition at one place asserts he is illegally restrained of his liberty by the Warden, but at another it admits that the sentence under one of the three counts on which he pleaded guilty has not yet run, and that he…