RUDKIN, Circuit Judge.
These are appeals from two orders of the court below, the first denying a petition for a writ of habeas corpus against the sheriff of Los Angeles county, the second denying a writ of mandamus against the United States marshal for the Southern District of California directing him to forthwith execute a commitment on a final judgment of the court below,
June 28, 1928, and July 2, 1928, two indictments were returned against Albori in the superior court of Los Angeles county charging an assault with a deadly weapon. September 7, 1928, he was convicted, and September 13, 1928, sentence of imprisonment for a term of from two to twenty years in the state penitentiary at San Quentin was pronounced. An appeal from this sentence was taken to the District Court of Appeals, where the conviction was affirmed and a remittitur issued on April 17, 1929. Albori has since been committed to the penitentiary, as directed by the state court, and is now confined therein.
The federal court having first taken jurisdiction of the person of Albori, no doubt the United States had a lawful right to insist that the sentence imposed by its own court should be first executed.
"The chief rule which preserves our two systems of courts from actual conflict of jurisdiction is that the court which first takes the subject matter of the litigation into its control, whether this be person or property, must be permitted to exhaust its remedy, to attain which it assumed control, before the other court shall attempt to take it for its purpose. Ponzi v. Fessenden, 258 U.S. 254, 260, 42 S.Ct. 309, 66 L. Ed. 607, 22 A. L. R. 879."
But this right was the right of the United States, not the right of Albori, and the prior right of the government could be and was waived by the attorney general in consenting to and requesting the withdrawal of the commitment and the suspension of sentence. Ponzi v. Fessenden, supra. It clearly appears, therefore, that Albori is now lawfully confined in the state penitentiary at San Quentin in the custody of its warden, with the consent and acquiescence of the Attorney General, and it would be futile to issue a writ of habeas corpus against the sheriff commanding him to produce a prisoner who has already passed out of his custody and beyond his control. It would be equally futile to issue a writ of mandamus against the United States marshal commanding him to execute a process which he is powerless to execute.
The orders are therefore affirmed.