Elwood

Petitioner appeals from a judgment denying his application for the issuance of the writ of habeas corpus and discharging respondent from further answer to an order to show cause theretofore issued.

Petitioner makes the point that he was sentenced by the state court of Washington for a non-existent crime, to-wit, that of habitual criminal.'

Some years ago, petitioner was twice found guilty of a crime in a Washington state court, each amounting to a felony, and thereafter was again found guilty of a felony by a court of that state. After the third conviction, sentence was withheld until after the issuance and trial of a charge that he was an habitual criminal. Section 2286, Rem.Rev.Stat., Laws of Washington. 1 A jury in a separate proceeding found petitioner to be an habitual criminal. The court then proceeded to sentence him on the third felony conviction as an habitual criminal. It is apparent that petitioner was not sentenced for a nonexistent crime but for the substantive crime of which he had been convicted. However, the term of the sentence was fixed under the statute which provides the penalty for the crime when the status of the convicted person is that of an habitual…