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  • Fred Nash Ortega v. Wayne K. Patterson, Warden, Colorado State Penitentiary, 354 F.2d 691, 10th Cir. (1965)

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    The United States Court of Appeals for the Tenth Circuit affirmed the denial of habeas corpus relief to a petitioner who claimed that his transfer from a Colorado reformatory to a penitentiary by order of the governor was ex post facto. The court held that a 1951 Colorado statute empowered such transfers and was implied in sentences after its passage, and amendments to the statute after the petitioner's sentence did not make its application ex post facto.

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    Filed: 1965-12-16 Precedential Status: Precedential Citations: 354 F.2d 691 Docket: 8369_1

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    The United States Court of Appeals for the Tenth Circuit affirmed the denial of habeas corpus relief to a petitioner who claimed that his transfer from a Colorado reformatory to a penitentiary by order of the governor was ex post facto. The court held that a 1951 Colorado statute empowered such transfers and was implied in sentences after its passage, and amendments to the statute after the petitioner's sentence did not make its application ex post facto.

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    Fred Nash Ortega v. Wayne K. Patterson, Warden, Colorado State Penitentiary, 354 F.2d 691, 10th Cir. (1965)

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    The United States Court of Appeals for the Tenth Circuit affirmed the denial of habeas corpus relief to a petitioner who claimed that his transfer from a Colorado reformatory to a penitentiary by order of the governor was ex post facto. The court held that a 1951 Colorado statute empowered such transfers and was implied in sentences after its passage, and amendments to the statute after the petitioner's sentence did not make its application ex post facto.

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    of 2

    354 F.

    2d 691

    Fred Nash ORTEGA, Appellant,


    v.
    Wayne K. PATTERSON, Warden, Colorado State
    Penitentiary, Appellee.
    No. 8369.

    United States Court of Appeals Tenth Circuit.


    Dec. 16, 1965.

    Charles E. Wade, Jr., Oklahoma City, Okl., for appellant.


    James W. Creamer, Jr., Asst. Atty. Gen. (Duke W. Dunbar, Atty. Gen.,
    and Frank E. Hickey, Deputy Atty. Gen., with him on the brief), for
    appellee.
    Before MURRAH, Chief Judge, and BREITENSTEIN and SETH, Circuit
    Judges.
    PER CURIAM.

    The district court denied habeas corpus relief to appellant-petitioner who is


    confined in the Colorado penitentiary under a 1958 sentence imposed after his
    plea of guilty to a burglary charge. The sentence ordered confinement in the
    Colorado reformatory. Petitioner was transferred from that institution to the
    penitentiary by order of the governor. The contention is that the statute under
    which the transfer was ordered became effective after the sentence was
    pronounced and its application to petitioner was ex post facto in violation of
    Art. 1, Sec. 10, of the United States Constitution.

    A 1951 statute empowered the governor to transfer prisoners from the


    reformatory to the penitentiary. See Colo.Sess.L. (1951), pp. 141-143. The
    Colorado Supreme Court has held that this law is 'impliedly present' in
    sentences imposed after its passage. See Tinsley v. Crespin, 137 Colo. 302,
    306-307, 324 P.2d 1033. Immaterial amendments effective after the sentence
    do not make the application of the statute to the petitioner ex post facto.

    Affirmed.

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