DENMAN, Chief Judge.
This is an appeal from an order entered by the United States District Court for the Northern District of California, Southern Division, two judges acting, granting Wells' application for a writ of habeas corpus and ordering Wells discharged from custody.
After a plea of guilty, Wells, in 1938, was sentenced to prison by the United States District Court for the Western District of Texas. So far as we are concerned, appellee was sentenced upon pleas of guilty to the third count of an indictment charging robbery of a bank and putting the life of a person in jeopardy by the use of a dangerous weapon (in the commission of the robbery) and to the fourth count charging entering the bank with intent to commit a felony, to wit, the robbery. The sentences were fixed to run consecutively. Wells has served his time except for the sentence imposed on his plea of guilty to count four. He contends that this sentence is void as the offense charged in count four merged into the one charged in count three.
Wells had previously moved for relief pursuant to 28 U.S.C. § 2255 and been denied. Wells v. United States, 5 Cir., 210 F.2d 112. There is no allegation in
I. The District Court has no jurisdiction to issue the writ of habeas corpus.
An application for a writ of habeas corpus "shall not be entertained" if the applicant has been denied relief on a § 2255 motion. 28 U.S.C. § 2255. The district court was without jurisdiction to issue the writ. Winhoven v. Swope, 9 Cir., 195 F.2d 181.
If this is true, Wells argues, then § 2255 is an unconstitutional suspension of the writ under Art. I, Sec. 9, cl. 2 of the United States Constitution.
The constitutionality of § 2255 has been upheld in two fully reasoned opinions. Jones v. Squier, 9 Cir., 195 F.2d 179; Barrett v. Hunter, 10 Cir., 180 F.2d 510, 20 A.L.R.2d 965. Habeas corpus has been denied on the basis of § 2255 without any suggestion that § 2255 is unconstitutional by at least three other circuits. Smith v. Reid, 89 U.S.App.D.C. 272, 191 F.2d 491; Meyers v. Welch, 4 Cir., 179 F.2d 707; Weber v. Steele, 8 Cir., 185 F.2d 799.
II. Wells' only remedy is to appeal for Executive clemency.
Although it well may be that the offense charged in count four merged into that charged in count three, and the district court was without jurisdiction to grant the relief requested because of the provisions of 28 U.S.C. § 2255. The decision of the two district judges, so obviously failing to consider the jurisdictional effect of the statutes involved, seems to be based solely on sympathy for one they think unjustly treated. Such action confirms the maxim that hard cases make bad law or more eloquently put, "`Hard cases are the quicksands of the law.'" Metropolitan Nat. Bank v. Campbell Comm. Co., C.C.W.D.Mo., 77 F. 705, 710. The appeal should have been to the President.
To fail to reserve would not only be contrary to precedent but would wipe out much of the gain accomplished by § 2255 and highly approved by the Supreme Court in United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232.
The judgment is reversed.