If any point of practice is well settled in the federal courts it is that, “except in peculiar and urgent cases, the courts of the United States will not discharge the prisoner by habeas corpus in advance of a final determination of his case in the courts of the state, and even after such final determination in those courts will generally leave the petitioner to the usual and orderly course of proceeding by writ of error from the United States Supreme Court.” Whitten v. Tomlinson, 160 U. S. 231, 16 Sup. Ct. 297, 40 L. Ed. 406.
This case is not peculiar or urgent, in the sense in which those words have been used by the Supreme Court. In re Neagle, 135 U. S. 1, 10 Sup. Ct. 658, 34 L. Ed. 55; In re Roney, 134 U. S. 372, 10 Sup. Ct. 584, 33 L. Ed. 949; Wildenhus’ Case, 120 U. S. 1, 7 Sup. Ct. 385, 30 L. Ed. 565. The prisoner is not in custody by authority of a state for an act done or omitted to be done in pursuance of a law of the United' States, or otherwise involving the authority or operations of the general government, or its relations to foreign nations. The “constitutional” point raised here could have been equally well raised before the appellate tribunals of the state, and it was stated on the argument (and not denied) that it was there raised. It can be presented to the United States Supreme Court in the usual and orderly course of proceeding by writ of error to the state court. The record upon such writ of *715error need be no more voluminous than upon appeal in habeas corpus, since question is made only of the sentence, not of the conviction.
Moreover, a hearing upon writ of error would be had in due course long before the expiration of the term of imprisonment to which petitioner would be subject, were the alleged ex post facto statutes of which he complains eliminated. Inasmuch as his conviction has been affirmed, and is not questioned here, it must be assumed that the prisoner is guilty of the offense; and since the point raised in his behalf deals only with the sentence inflicted, he suffers no hardship in having, pending his appeal, to wait in jail for some period less than that which would have been expressed in the sentence, had it been framed according to his theory of construction.
The writ is dismissed.