United States ex rel. Carter v. Ragen

Seventh Circuit

United States ex rel. Carter v. Ragen

153 F.2d 902, 1946 U.S. App. LEXIS 1991

CourtCourt of Appeals for the Seventh Circuit

DecidedFebruary 25, 1946

DocketNo. 9034

StatusPublished

This text of 153 F.2d 902 (United States ex rel. Carter v. Ragen) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States ex rel. Carter v. Ragen, 153 F.2d 902, 1946 U.S. App. LEXIS 1991 (7th Cir. 1946).

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Opinion

PER CURIAM.

Petitioner filed a petition for a writ of habeas corpus in the District Court. By an order entered October 29, 1945, the lower court held that he was in lawful custody of respondent and was therefore remanded to such custody. From that order petitioner has appealed. The trial judge signed the requisite certificate of probable cause and this court allowed the prosecution of the appeal in forma pauperis.

The petitioner presents but one question in his petition for a writ of habeas corpus. He asserts that the trial judge as a part of the sentence in his case made a recommendation as to the minimum and maximum sentence to be served, and the statute providing • for such recommendation (Ill.Rev.Stat. 194.1, Ch. 38, § 801 et seq.) was subsequently declared unconstitutional by the Illinois Supreme Court. People v. Montana, 380 Ill. 596, 44 N.E.2d 569. Upon this basis he contends that he is unlawfully detained and should be released. This presents a question of Illinois law which has 'been adjudicated adversely to petitioner’s contention. People v. Sbarbaro, 386 Ill. 581, 54 N.E.2d 559. We are bound by this interpretation. Whitten v. Bennett, 7 Cir., 141 F.2d 295; United States v. Ragen, 7 Cir., 143 F.2d 774.

It is also apparent that petitioner has failed to show an exhaustion of his state court remedies. Under these circumstances, the lower court could have properly dismissed the petition for lack of jurisdiction. White v. Ragen, 324 U.S. 760, 65 S.Ct. 978.

Affirmed.

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PER CURIAM.

Petitioner filed a petition for a writ of habeas corpus in the District Court. By an order entered October 29, 1945, the lower court held that he was in lawful custody of respondent and was therefore remanded to such custody. From that order petitioner has appealed. The trial judge signed the requisite certificate of probable cause and this court allowed the prosecution of the appeal in forma pauperis.

The petitioner presents but one question in his petition for a writ of habeas corpus. He asserts that the trial judge as a part of the sentence in his case made a recommendation as to the minimum and maximum sentence to be served, and the statute providing • for such recommendation (Ill.Rev.Stat. 194.1, Ch. 38, § 801 et seq.) was subsequently declared unconstitutional by the Illinois Supreme Court. People v. Montana, 380 Ill. 596, 44 N.E.2d 569. Upon this basis he contends that he is unlawfully detained and should be released. This presents a question of Illinois law which has 'been adjudicated adversely to petitioner’s contention. People v. Sbarbaro, 386 Ill. 581, 54 N.E.2d 559. We are bound by this interpretation. Whitten v. Bennett, 7 Cir., 141 F.2d 295; United States v. Ragen, 7 Cir., 143 F.2d 774.

It is also apparent that petitioner has failed to show an exhaustion of his state court remedies. Under these circumstances, the lower court could have properly dismissed the petition for lack of jurisdiction. White v. Ragen, 324 U.S. 760, 65 S.Ct. 978.

Affirmed.

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153 F.2d 902, 1946 U.S. App. LEXIS 1991, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-ex-rel-carter-v-ragen-ca7-1946.

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