Banks was convicted of narcotics violations by the United States District Court for the Western District of Washington, Northern Division. No appeal was taken from this conviction. He filed a motion which was denied with that court pursuant to 28 U.S.C. § 2255.

He moves this court and also applies for a writ of habeas corpus to remove him from Alcatraz Penitentiary pending his appeal from the denial by the District Court of his motion to vacate sentence, claiming a right under Rule 38 of the Criminal Rules, 18 U.S.C.A., to be removed from the penitentiary pending appeal.

No appeal was taken from the judgment under which appellant was convicted; as indicated above, the only appeal was from the order denying a motion to vacate the sentence. Therefore, Rule 38 of the Criminal Rules providing for relief pending review has no application. His imprisonment was not premature. Taylor v. United States, 9 Cir., 179 F.2d 640. The motion and application are denied.