United States ex rel. Davis v. Ragen

154 F.2d 288, 1946 U.S. App. LEXIS 2045

Opinion

PER CURIAM.

Petitioner is confined in the Illinois State Penitentiary for a term of one year to life by virtue of a conviction and sentence for armed robbery. He sought his release by filing petition for a writ of habeas corpus in the District Court. From an order of January 16, 1946, dismissing his petition, petitioner appeals. Since the trial judge has signed a certificate of probable cause, we hereby grant the petitioner leave to proceed in this court in forma pauperis.

Petitioner’s appeal presents but one question, i. e., whether the indeterminate sentence act of Illinois, Ill.Rev.Stat.1945, c. 38, § 801 et seq., is violative of the Constitution. The Illinois Supreme Court has decided this question many times adversely to petitioner’s contention. People v. Segal, 306 Ill. 301, 137 N.E. 815; People v. Hawkins, 306 Ill. 29, 137 N.E. 385; People v. Bernstein, 304 Ill. 351, 136 N.E. 683; People v. Roche, 389 Ill. 361, 59 N.E.2d 866. We are bound by this interpretation. Whit-ten v. Bennett, 7 Cir., 141 F.2d 295; United States ex rel. Foley v. Ragen, 7 Cir., 143 F.2d 774.

It is also apparent that the requirements of White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, as to exhaustion of state court remedies have not been met.

The order of the District Court is affirmed.