Dan Nichols v. Jack McCormick Warden

NORRIS, Circuit Judge, with whom HUG, PREGERSON and REINHARDT, Circuit Judges, join,

dissenting from the denial of rehearing en banc:

Dan Nichols was indicted of kidnapping under a Montana statute that subjected him to a maximum penalty of ten years of imprisonment. See Mont.Code Ann. § 45-5-302(2) (“A person convicted of the offense of kidnapping shall be imprisoned in the state prison for a term of not less than 2 years or more than 10 years_”). The kidnapping statute, MCA § 45-5-302, does not provide for any enhancement of this statutory maximum of ten years. Nichols was also indicted of…