McCauley

■ Petitioner was convicted of the crime of grand larceny in the Superior Court of Spokane, Washington, and was sentenced to a term in the penitentiary. Thereafter petitioner applied to the Supreme Court of the State of Washington for a' writ of habeas' corpus, claiming (1) that the Superior Court of Spokane County had no jurisdiction to re-sentence 1 him, there being no statute of the State of Washington providing for such procedure; and (2) that petitioner was deprived of counsel at the hearing upon the re-sentencing, and that he did not waive the same. The petition was denied and the decision was not appealed to the United States Supreme Court.

Thereafter the petitioner filed with the United States District Court for the Eastern District of Washington his petition for a writ of habeas corpus upon the grounds stated in his petition to the State Supreme Court. The petition was denied and this is an appeal from the order of denial.

We need not go into the merits of the controversy for it is well settled that whether or not a federal court will issue a writ of habeas corpus to release a prisoner held under a commitment from a state court is one of discretion. Ex parte Royall, 117…